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1(1963) All N.L.R 201
TAYLOR AND BAIRAMIAN F.J.J.
CRIMINAL LAW AND PROCEDURE:- Conviction for lesser offence – Count of attempted murder laid under subsection (1) of s. 320 of Criminal Code with allegation of matchet cuts — Conviction for unlawful wounding
INTERPRETATION OF STATUTES – LEGISLATION:—Criminal Code, s. 320, s. 338; Criminal Procedure Ordinance. s.179 (1) – How treated
A. COLE for the appellant.
OJFIAH, Senior Crown Counsel, for the respondent.
BRETT, F.J. (delivering the judgement of the Court):-The appellant was charged on Information containing a single count, which read as follows-
“STATEMENT OF OFFENCE
ATTEMPTED MURDER contrary to section 320 (1) of the Criminal Code.
PARTICULARS OF OFFENCE
NWAOGUGUA AGUMADU, on the 25th day of April, 1962 at Onitsha in the Province of Onitsha, in the Onitsha Judicial Division, unlawfully attempted to murder Nwoji Agumadu by giving him matchet cuts.”
After reviewing the evidence the judge held in his judgement that the accused “is entitled to an acquittal on the extremely grave charge of attempting to kill his cousin but that does not absolve him from all blame”. He went on-
”Since I do not accept his defence that there was sufficient provocation to excuse the assault, and since there was an unlawful wounding, I can under the powers conferred on me by section 179 (1) and (2) of the Criminal Procedure Ordinance convict him of an offence against section 338 of the Criminal Code and I do so accordingly”.
It is not in dispute that the facts amply justified a conviction for unlawful wounding, and the sole question arising on this appeal is whether the judge was right in holding that on the information as framed he had power to convict of unlawful wounding.
Section 320 of the Criminal Code reads as follows-
“320. Any person who-
(1) attempts unlawfully to kill another or
(2) with intent unlawfully to kill another does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life; is guilty of a felony, and is liable to imprisonment for life,”
While a charge laid under paragraph (2) of this section will be defective if it does not specify the act or omission alleged, it is not necessary that a charge laid under paragraph (1) should do so, but that does not mean that a charge laid under paragraph (1) will be open to objection if it does specify the method by which the accused person is alleged to have attempted unlawfully to kill another, and where such details are included they cannot be treated as mere surplusage, but form a part of the charge which must be proved with the same strictness as the other parts of the charge. This fact is of importance in considering whether section 179 of the Criminal Procedure Act can be invoked.
That section reads as follows-
“179. (1) In addition to the provisions herein before specifically made whenever a person is charged with an offence consisting of several particulars a combination of some only of which constitutes a complete lesser offence in itself and such combination is proved but the remaining particulars are not proved he may be convicted of such lesser offence or may plead guilty thereto although he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence he may be convicted of the lesser offence although he was not charged with it.”
On principle we consider that subsection (1) of this section applies in the present case. The information alleged an offence consisting of three particulars: the infliction of matchet cuts; unlawfulness (i.e., an absence of authority, Justification or excuse: see section 306 of the Criminal Code); and an intent to kill. The offence of which the appellant was convicted is constituted by the first two of these particulars, that is, the infliction of matchet cuts and an absence of authority, justification or excuse: see section 253 of the Criminal Code. In the circumstances of this case, anything that would be authority, justification or excuse for the acts charged would also be authority, justification or excuse for the acts held to constitute unlawful wounding, and there is nothing in the submission that section 284 of the Criminal Code would make a lesser degree of provocation a defence to a charge of unlawful wounding than would be a defence to a charge of attempted murder.
In reaching this conclusion, we do not intend to cast any doubt on the correctness of the decisions in R. v. Noku (1940) 6 W.A.C.A. 203, decided under the Criminal Procedure Ordinance of 1914, and R. v. Nta (1946) 12 W.A.C.A. 54, decided under the existing Criminal Procedure Act, to the effect that on a charge of the full offence of murder the court has no power to convict of an act intended to cause grievous harm or a serious assault. Those decisions turn on the particular nature of the offence of murder. It was submitted that since, on a charge of murder, the court undoubtedly has power, under section 169 of the Criminal Procedure Act, to convict of attempted murder, it follows that an offence of which section 179 (1) of the Act does not enable the court to convict on a charge of murder cannot be one of which the subsection enables the court to convict on a charge of attempted murder, but there is a fallacy in this, in that the power to convict of an attempt is derived not from section 179 but from section 169, and that the words of section 179 are not apt to cover every case of an attempt to commit a substantive offence, as defined in section 4 of the Criminal Code.
Our attention was drawn to R. v. Kanu (1949)12 W.A.C.A. 488, where it was held that fraudulent false accounting by a clerk or servant contrary to section 438 of the Criminal Code cannot be “reduced to” the offence of false accounting by a public officer contrary, to section 439 of the Code, but that decision turned on the meaning of section 179 (2) of the Criminal Procedure Act, and it is section 179 (1) that is in point here. We mention only to reject it the submission that for the purpose of section 179 of the Act one felony cannot be a lesser offence than another. A person convicted under section 320 of the Criminal Code is liable to imprisonment for life, whereas a person convicted under section 338 is liable at most to imprisonment for three years, and the offence under section 338 is manifestly a lesser offence.
In our view the matter was correctly put in Torhamba v. Police (1956) N.R.N.L.R. 87, at p. 9-”the lesser offence is a combination of some of the several particulars making up the offence charged: in other words the particulars constituting the lesser offence are carved out of the particulars of the offence charged … When one is considering action under section 179, one should write out the particulars of which the offence charged consists and see whether it is possible to delete some words out of those particulars and have a residue of particulars making up the lesser offence of which it is proposed to convict…… An authoritative example is furnished by the case of Cooray v. The Queen  2 W.L.R. 965;  A.C. 407.”
While the fact is not conclusive as to the meaning of section 179 of the Criminal Procedure Act, the interpretation which we have put on it appears to give it the same effect as the rule at common law. In R. v. O’Brien (1911) 22 Cox C.C. 374,6 Cr. App. R. 108, the appellant was convicted of assault on an indictment charging that he and certain others “unlawfully, riotously and routously did assemble and gather together to disturb the peace and being so assembled upon A.B unlawfully, riotously and routously did make an assault”. The offence of riot at common law requires a display of force or violence, but that need not necessarily take the form of an assault, just as an attempt unlawfully to kill need not necessarily take the form of an unlawful wounding. In delivering the judgement of the Court of Criminal Appeal, Avory, J., said
“We are of the opinion that the proper principle to apply to this case is that which is stated in Archbold’s Criminal Pleading (24th edition) at page 288: `But at common law a defendant may be convicted of a less aggravated felony or misdemeanour on an indictment charging a felony or misdemeanour of greater aggravation, provided that the indictment contains words apt to include both offences.’ The indictment in this case certainly contains such apt words, so much so that it is not altogether clear that the charge was not, in effect, a charge of assault with aggravating circumstances. If that was so, the appellant might be convicted of assault, although the Jury might be doubtful as to the aggravating circumstances.”
Our attention was drawn to the specific English rules on the possible alternative verdicts on a charge of attempted murder, but they turn on the wording of the Prevention of Offences Act, 1851, s. 5, and are not in point here.
On these grounds we are satisfied that the learned judge had power to record a conviction for unlawful wounding on the information as framed, and the appeal is dismissed.