THE STATE vs. AYI GRUNSHIE [1961]DLSC1295

Date	1961-11-05
Suit No.
Citation No.	[1961]DLSC1295

VAN LARE JSC

SARKODEE-ADOO JSC

ADUMUA-BOSSMAN JSC

C. E. COUSSEY FOR THE APPELLANT

K. DUA SAKYI WITH HIM SARKODEE FOR THE RESPONDENT (THE STATE).

[1961]DLSC1295
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&nbsp;vs.

&nbsp;[SUPREME COURT]

[1961] GLR 633

DATE: 6TH NOVEMBER, 1961.

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COUNSEL:&nbsp;&nbsp;

C.
E. COUSSEY FOR THE APPELLANT.

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VAN LARE, SARKODEE-ADOO AND
ADUMUA-BOSSMAN JJ.S.C.

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&nbsp;

Adumua-Bossman, J.S.C. delivered the judgment of the court. This
appeal is against a conviction of the appellant on the charge of the murder of
one Salifu Moshie on 17th November, 1960, by Crabbe, J. sitting with a jury. The
prosecution’s case, depending almost entirely on the evidence of the first
prosecution witness, Kwabena Nimoh (who will hereafter be referred to shortly
as Nimoh), was to the effect following:

That at about 8 p.m. on the fateful Wednesday, he and the deceased
went hunting at night in the bush near a village called Amankenan in the Tanoso
area, he, Nimoh, carrying only a cutlass, whilst the deceased carried a gun and
had the usual local hunter’s head-light strapped on to his forehead. In the
bush, at the deceased’s request he (Nimoh) stood at a certain spot and the
deceased moved about 20 yards away. Suddenly Nimoh heard the report of a gun,
followed by a voice which asked: “Who is that, who fired the gun?”; he then
heard the deceased reply “It’s I”, and the other voice called out “Grunshie”,
as if enquiring if it was Grunshie who was speaking from the other side. The
deceased received an affirmative reply, whereupon he called out “I’m coming to
look at you”. Up to that stage the conversation between the deceased and the
person who answered to the name Grunshie, was carried on in Twi to the
comprehension of Nimoh, but as the deceased appeared to advance to go and carry
out his declared intention of looking at the man Grunshie, the conversation
changed into a language which he (Nimoh) could not understand. Nimoh then heard
the report of another gun, followed by the shout of the deceased now in Twi
comprehensible to him, “I’ve been killed”; he then saw a light approaching in
his direction and took cover, and as he did so, he saw a man with a hunting
light strapped to his forehead pass by, whom he recognised as the appellant.
After the appellant had passed and gone away, he (Nimoh) heard the deceased
calling for him and he went and found him mortally wounded; he also found the
deceased’s gun, broken into two pieces lying near him. He could not carry the
deceased and had to leave him where he was and travel to the village to report,
but by the time he and other villagers returned to where he left the deceased
they found him lifeless. Meanwhile from the scene of the incident the appellant
appeared to have returned to his cottage, and thither Nimoh led the elders and
others of the villagers, after they had seen the corpse of the deceased, to
find him. On the appellant being asked if it was true as reported by Nimoh that
he shot the deceased, he replied “Yes, it’s correct”. He was then apprehended
by the villagers, and in due course turned over to the police at Techiman. He
made a cautioned statement to the police in which he said:

“On Wednesday 16th November, 1960, during the night I took my gun
and went out hunting. In the bush I saw a hunting light facing me. I was then
shot by an unknown man. I shouted ‘Who are you?’ The deceased also said ‘Who
are you?’ The deceased then drew near me with a cutlass. The deceased tried to
kill me with the cutlass, so I became afraid and shot him with my gun. He fell
down and died at the spot. I then went to my cottage. I did not tell anybody
about the incident.”

In his evidence at the trial, however, he varied his explanation
slightly The crucial part of his evidence at the trial was:

“I was hit by some of the pellets when the man fired at me
(Accused shows the jury the part of his body that was hit). I saw that man draw
a cutlass and was advancing towards me. I was at the time sitting on the
ground. I overheard another voice telling deceased to stab me if he got near
me. I feared that if that man came near me he would kill me with the cutlass,
and so I fired at him. I then got up and ran home.”

It is clear that whilst the main defence relied on by the
appellant was that of self-defence, the evidence as a whole, particularly the
part as to his having been hit by some of the pellets from the first gun-shot
followed by the exchange of words in a language unintelligible to the witness
Nimoh, gave grounds for the consideration of an alternative defence of killing
under provocation, and placed upon the learned trial judge the obligation of
directing the jury on the question of provocation such as will in law be
sufficient to reduce the offence of murder to manslaughter. So in Mancini v.
Director of Public Prosecutions1(1) Simon, L.C. explained that: