R. v. Phillipo, Crim. Sass 239-M-69; 15/6/70; Seaton, J.

R. v. Phillipo, Crim. Sass 239-M-69; 15/6/70; Seaton, J.

The accused was charged with the murder of his sister-in-law. The accused did not dispute the killing: the only question for consideration was with what intent had he done it? The accused was a peasant aged 42 years and until 1959 a member of the armed forces stationed in Dar es Salaam. He was discharged after an illness known as “Chembe moyo”, which appears to be essentially a condition of the heart but has some effect on the mental state as well. After leaving the army, the accused lived in Usanda village in Shinyanga District together with his wife and 7 children in a homestead which was shared with his brothers, their wives and children. The accused was supposedly cured of his former illness when he came from the Army. He performed the usual duties of life, cultivating as others did. Yet his

Disposition seemed changed. The accused never quarreled with his family, nor was he in the habit of getting angry without reason. On the day on which his sister-in-law met her death, the accused had been herding the cattle, including a motherless calf which belonged to him. About a month before, his elder brother Paul had advised that that calf should not get out grazing but should remain within their homestead. But the accused nonetheless took out the calf with the other cattle on that day because as he testified, the calf was not getting water. When the accused returned with the cattle to their boma about 3 p.m., he was met by Paul who asked him if he had driven out the motherless calf to graze. The accused replied in the affirmative Paul asked him “why?” and the accused explained: “so that it might drink water”. However, Paul kept on asking the accused why he had taken out the calf and the accused repeated his explanation. When Paul persisted with his questioning, the accused lost his temper and struck him with a stick on the left temple. Paul fell down and lost consciousness. Paul’s wife, Jeovera, was cooking at the time. She came out of the house shouting that he had killed someone. Jenovera made as if to catch hold of the accused who was angry still and he struck Jenovera also with his stick three times. She also fell down. According to his testimony, the accused thought he would return to assist them later after drinking some water and resting a bit. After observation and interviews, Dr. Pendaeli found the accused not abnormal in thought, content or mood and his impression was that the accused was of sound mind and fit to stand his trial. The doctor noted that the accused had apparently had a previous history of psychiatric disorder and generally people who have suffered from mental disorder are easily irritated and may do impulsive action. Nevertheless, Dr. Pendaeli was of the opinion that the accused was of sound mind when he committed the act of killing his sister-in-law.

            Held: (1) “I have carefully considered the evidence in this case and the demeanor of the accused. I do not think he is or was insane (at the time of committal of offence). Nor do I doubt that the accused knew what he was doing was wrong.” (2) “I have borne in mind the objective element of the “ordinary person” which section 202 of the Penal Code requires for consideration on the issue of provocation. I have also considered the subjective element which section 200 of the Penal Code requires in determining the intent of the accused. I am convinced that the accused had not the necessary mens rea for murder and I am satisfied that the advice of the assessors is reasonable and just in the present case. (3) “I accordingly acquit the accused of murder and find him guilty of manslaughter.”