130 r v evadi so sylivester crim sass 91 m 66 67 j

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130. R. v. Evadi s/o Sylivester, Crim. Sass. 91-M-66; -/-67; ----------------, J. Accused was convicted of murder (P. C. s. 196). There was evidence that ac- cused and the deceased had quarreled in a pombe shop and accused had threatened to set fire to the deceased’s house. Later that night the deceased’s house burned. A body was found inside but was burned beyond recognition. At the close of the prosecution case, the accused moved that no case had been made out for him to answer. Held: (1) Death is provable by circumstantial evidence notwithstanding that neither the body nor any trace of a body is found. Citing Regina v. Onufre- jezyk, 1965 1, QB 388. Although the body could not be identified, there was suffi- cient circumstantial evidence that deceased died in the fire. (2) The only evi- dence connecting accused with the death was the threat he made the evening before the fire. This evidence was insufficient to require accused to present his defence case. Citing R. v. Sipirian (1947) 14 E.A.C.A. 72, The accused was found not guilty.
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131. Leo s/o Pigangoma v. R., Crim. App. 671-M-66; 17/4/67; Platt J. Accused was convicted of assault causing actual bodily harm (P.C. s. 241), common assault (P.C. s. 240) and malicious damage to property (P.C. s. 326(1)). In the course of the assault, accused tore complainant’s shirt and vest and broke his spectacles. Held : Where an assault takes place which causes damage to property worn by or in the possession of the complainant, such damage is to be consi- dered merely incidental to the assault, rather than a separate offence, unless there is evidence of willful damage to property as such. There was no such evi- dence in this case. The conviction for malicious property damage was quashed. 132. R.v. Ally Kage , Crim. Rev. 14-A-66; 16/4/67; Bannernan, J. Accused were convicted of prospecting without authority (Cap. 123, s. 6). There was evidence that they had, without a permit, mined stones and sold them for Shs. 65/-. Held: It was mandatory that the court order the forfeiture of the minerals in addition to the fine imposed (Cap. 123, s. 5). Since the minerals had been sold, the sale price should have been adjudged their fair value and that amount should have been forfeited in addition to the fine. (1967)H.C.D. - 35 – 133. Misago s/o Semumba v. R . Crim. App. 97-D-67; 12/5/67; Hamlyn, J. Accused was convicted of burglary and stealing. The trial commenced in No- vember 1966 but was immediately adjourned. When it was resumed in Decem- ber 1966, accused was not properly charged nor was he required to plead to any charges. Held : Where no pleading is taken the trial is a nullity. There has therefore been no trial in these proceedings. The court made no specific order for re-trial, which it considered a matter to be decided by the prosecutor.
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134. David Mwita s/o Paulo v. R. Crim. App. 560, 561-M-66; 18/4/67; Platt, J. Accused were convicted of cattle theft. The trial was heard by two magistrates, the first having heard the witnesses for the prosecution, and the second the wit- nesses for the defence. Testimony of the witnesses was in direct conflict as to material matters.
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