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Rex V. Thomas Torto & Ors (1946) LJR-WACA

Rex V. Thomas Torto & Ors (1946)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law—Evidence—Chance medley—Onus of proof.

Where A deliberately provokes B in order that he, A, may have an excuse for killing B, should B attack A, A is guilty of murder.

The burden of proof is on the Crown to prove that an offence of homicide amounts to murder and not manslaughter.

Cases referred to :

  1. Woolmington v. D.P.P. (1935), A.C. 462. 104 L.J.K.B. 433. 153 L.T. 232. 51 T.L.R. 446. 79 Sol. Jo. 401. 25 Cr. App. R. 72. 20 Cox C.C. 234.
  2. R. v. Dagomoa, W .A.C.A . 4th May, 1945 (not reported).

Appeal from the Supreme Court of the Gold Coast.

Sawyerr, Heward-Mills and Larbi for Appellant.

Akufo Addo for Crown.

The following judgment was delivered:

Harragin, C.J. In this case the deceased was killed by a stab wound which he received whilst fighting with the appellant. Deceased was not armed, butattacked the appellant with his fists, after the appellant had insulted him verbally.

In the course of the fight the appellant drew a knife from his pocket and inflicted one wound on deceased from which he later died.

It is beyond dispute that, in so far as the fight is concerned, the deceased was

the aggressor. The learned Judge in his report to this Court states as follows:—

” All the circumstances clearly point to a deliberate provocation offered by prisoner to deceased which coupled with the fact that prisoner failed to give a reasonable account for his presence on the spot at the time his two companions met him and persistent insulting remarks to deceased and finally to his female companion, suggest that either prisoner was out for a fight with some person or was waiting if he saw deceased and the woman to provoke the deceased to fight with him.”

While we agree with the proposition of law contained in this paragraph namely that, where A deliberately provokes B in order that he, A, may have an excuse for killing B, should B attack A, A is guilty of murder, there is not a tittle of evidence in this case to support that proposition.

See also  Musuru Okunubi V. Antonio Assaf (1951) LJR-WACA

The evidence clearly indicates that death occurred as the result of a chance fight which occurred in the street and the deceased, having been provoked by the insulting words of the appellant, was the aggressor throughout.

The burden of proof is on the Crown to prove that the offence amounts to murder and not manslaughter. Woolmington v. Director of Public Prosecutions (1).

The law with regard to killing in a chance medley is clearly set out in Rex v. Allassan Dagomoa (2), where the circumstances were very similar to those in this case.

We are of the opinion that the learned Judge should have directed the jury that in this case the Crown had failed to prove the ” malice prepense ” which is necessary in a case of murder and that the only possible verdicts open to them were those of guilty of manslaughter or not guilty.

For the above reasons the appeal was allowed and a verdict of manslaughter substituted for that of murder.

The appellant was sentenced to ten years’ imprisonment with hard labour.


Appeal allowed and conviction for manslaughter substituted for that of murder.

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