Wakilii

Rex v Gwempazi (Criminal Appeal No. 77 of 1943)

East African Court of Appeal · [1943] EACA 32 · 1943 Conviction Altered AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction by High Court of Uganda
Decision
Appellant convicted under section 231(c) of the Penal Code and sentenced to two years imprisonment with hard labour

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

In a prosecution under section 208 of the Penal Code for attempting unlawfully to cause death, it is not sufficient to prove that it would have been murder if death had ensued; the prosecution must establish that the accused had a positive intention unlawfully to cause death. Where the evidence shows the accused intended to set fire to a house but raises doubt as to whether he intended to kill the occupants, a conviction under section 208 cannot be upheld. Arson cannot be substituted as a minor offence because it carries the same punishment as section 208.

Outcome

Appellant convicted under section 231(c) of the Penal Code and sentenced to two years imprisonment with hard labour

Facts

The appellant set fire to a house during the night. His wife and children were inside the house at the time, though the appellant alleged they were not. The trial judge found as a fact that the woman and children were inside when the fire was set. The appellant did not dispute setting the fire but disputed the presence of the occupants. His conduct immediately after setting the fire tended to negative the suggestion that he acted with the deliberate intention of causing death. The evidence suggested his sole intention was to set fire to the house, though he may have been indifferent to the fate of the inmates.

Issues

  1. Whether the appellant had a positive intention unlawfully to cause death when he set fire to a house occupied by his wife and children.
  2. Whether a conviction under section 208 of the Penal Code can be sustained where the accused's intention was to set fire to the house rather than to cause death.
  3. Whether a conviction for arson can be substituted under section 179(2) of the Criminal Procedure Code as a minor offence in relation to section 208.

Orders

  • Conviction under section 208 of the Penal Code set aside.
  • Conviction altered to one under section 231(c) of the Penal Code.
  • Sentence reduced from ten years imprisonment with hard labour to two years imprisonment with hard labour.

Rules and key headnotes

Criminal Law — Attempt to Cause Death — Specific Intent Requirement
In a prosecution under section 208 of the Penal Code for attempting unlawfully to cause death, it is not sufficient to prove that it would have been a case of murder if death had ensued; the prosecution must establish that the accused had a positive intention unlawfully to cause death.
Criminal Law — Definition of Attempt — Essential Ingredients
An essential ingredient of an attempt to commit an offence is a specific intention to commit that offence, as defined in section 374 of the Penal Code: a person must intend to commit an offence, begin to put his intention into execution by means adapted to its fulfilment, and manifest his intention by some overt act without fulfilling his intention to such extent as to commit the offence.
Criminal Procedure — Substitution of Conviction — Minor Offence
A conviction for arson cannot be substituted by a Court of Appeal under section 179(2) of the Criminal Procedure Code as a minor offence in relation to an offence under section 208 of the Penal Code, because under section 317 of the Penal Code the punishment for arson is the same as that for the offence under section 208.
Criminal Law — Rash Act Endangering Life — Section 231(c)
Where an accused sets fire to a house occupied by persons in a manner so rash as to endanger life or as to be likely to cause harm, the accused is guilty of an offence under section 231(c) of the Penal Code even if a positive intention to cause death is not established.

Legislation cited (6)

  • Penal Code s.208
  • Penal Code s.196
  • Penal Code s.231(c)
  • Penal Code s.317
  • Penal Code s.374
  • Criminal Procedure Code s.179(2)

Cases cited (2)

  • R v Cruse (1838) 8 C & P 541
  • R v Muhoja s/o Manyenye (9 EACA 70)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Rex v Gwempazi (Criminal Appeal No. 77 of 1943) [1943] EACA 32 (1 January 1943)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.