Case No.:

AC-CP.45-1956

Court:

Major Court Confirmation

Issue No.:

1961

Principles

·  Criminal Law—Drunkenness—No defence to murder

·  Criminal Law—Transferred malice—Murder—Mistaken identity of victim no defence

(2) Drunkenness of accused at time of crime is no defence.

Accused who was drunk killed the deceased, mistaking him for another; he was convicted under Penal Code, s. 251.
Held: (1) Mistaken identity of victim is no defence to murder under doctrine of transferred malice. Penal Code, s. 250.

Judgment

(MAJOR COURT CONFIRMATION)

SUDAN GOVERNMENT v. ODIA MUDUADRI

AC-CP.45-1956

M. A. Abu Rannat C.J. March 18, 1956:—On the 2nd day of January. 1956, deceased’s father made a party to commemorate the mourning anniversary of his father. He called many people from the village and offered them large quantities of marisa. The party included the accused and they started drinking from 6 a.m. until the evening.

While drinking was going on the deceased took a jar of marisa and went to the forest where his grandfather was buried in order to pour marisa on the grave, in accordance with their custom.

The accused became drunk and behaved in a disorderly manner. At first he alleges that he had lost a io piastres piece and accused those who were present of stealing it. His brother searched accused’s pockets and found the 10 piastres in it. Then, a certain Adi Mari, blamed the accused of accusing people of stealing his money. The accused picked up a burning firewood and struck Adi Mari with it on the jaw. They were separated and accused was taken to his house. Accused took a spear and went back towards the father of deceased's house. At that time the deceased arrived back from the forest and inquired why accused was shouting. He was told that accused was drunk and had behaved in a disorderly manner. The deceased went to the accused and told him that be could come and drink marisa provided that he kept quiet. While the deceased was talking to him the accused stabbed the deceased with a spear which penetrated the breast and caused his instant death.

The accused pleads that he sta6bed the deceased mistaking him for Adi Mari. He further states that he was going back to the party In order to bring his wife to their home. It has been proved that nobody was keeping his wife and that she was frequently visiting the deceased’s house. As regards intention to kill Adi Marl this constitutes the doctrine of transferred malice. Whether the accused killed the deceased or M Mad makes no difference to the finding of this case.

The facts do not prove that there was grave or sudden provocation, nor was there any case of exercising the right of private defence or exceeding that right, nor was there a case of a sudden fight. Drunkenness is not a defence in such a case.

The court refused to recommend the accused to mercy and the Governor is of the opinion that the death sentence should be carried out.

I do not think that drunkenness in such a case justifies recommendation to mercy, as is mentioned in the covering letter by the province judge The accused killed an innocent man who had done no wrong to him.

I therefore recommend that the death sentence be carried out.