Convicted of murder on inadequate direction
REACTING to the threat – “If you come out the house ah gon kill your tail “, Glasgow in 1953, exited his house to battle with a man named Chance who stabbed him to death.

Chance, charged with murder, was convicted and sentenced to death after being found guilty by a Demerara Assize jury.

But because the star witness for the prosecution at the jury trial, 12-year- old Calvin Glasgow, son of the deceased, had given contradictory evidence which the trial judge did not ask the jury to consider, and also because the judge did not direct the jury on the question of provocation, the Appellate Court on appeal substituted manslaughter for murder.

As a consequence, the condemned man Chance got the chance of his life when he was taken from the death cell and ordered to serve a 15-year prison sentence for manslaughter.

The facts of the case disclosed that the appellant was convicted for the murder of Glasgow and sentenced to death.

At his trial, the son of the deceased gave evidence which differed in one material respect from the deposition he had made at the preliminary investigation. The judge in his summing-up warned the jury about accepting either the whole of the boy’s evidence or that part of it which differed from his previous evidence.

It was submitted on appeal that the judge should have warned the jury to discard the boy Calvin Glasgow’s evidence. The case of R. v. Harris was cited in support.

The Court of Criminal Appeal, constituted by Chief Justice F. M. Boland and Justices Kenneth Stoby and Joseph Wills, held that where the evidence of a witness is contradictory to previous evidence , it is sufficient if the judge warns the jury about the acceptance of such evidence.

It was also argued on appeal that the judge did not give the jury proper and adequate directions to enable them to determine whether the killing was murder or manslaughter.

According to the case for the Crown, the appellant had gone to the deceased’s home and threatened to beat and kill him. On the deceased leaving his house and going on to the road, the appellant attacked him and stabbed him with a knife.

It was established that the appellant emerged from the encounter with a cut on the forehead. A witness for the defence said that the deceased came out of his house with a cutlass but she disappeared from the scene before the fight or attack started.

The appellate court also found that the judge directed the jury adequately on the law relating to provocation; but in dealing with the facts, did not explain that if the wound on appellant’s forehead was the result of a blow by the deceased in the course of the encounter, it was for them to decide whether it was of sufficient severity to cause a reasonable man to lose his self-control and whether the appellant did in fact lose his self-control.

The Court of Criminal Appeal held that since the judge directed the jury that if they were satisfied that the Appellant did use the knife and wounded the deceased, he was guilty of murder and did not explain that even if the use of the knife was due to his loss of self-control because of the wound he received , the summing-up was inadequate and a conviction for manslaughter should be substituted for murder.

At the hearing of the appeal, the appellant was represented by lawyer Mr. J. O. F. Haynes, who later became Chancellor of the Judiciary, while Solicitor General J. A. Luckhoo appeared for the respondent.

Justice Stoby, in delivering the Appellate Court’s judgment, noted that in the appeal which was against a conviction for murder, counsel for the appellant in his submissions, while not abandoning the grounds filed in the record which advanced appellant’s claim to have the entire conviction set aside, would seem more to have urged for the substitution in its place of a conviction for the lesser offence of manslaughter.

Justice Stoby added, “Nevertheless, we conceived it our duty before we approached the question whether the conviction should have been for murder or manslaughter to satisfy ourselves that, instead of either , the verdict of the jury should not have been for an acquittal, which would have amounted to a finding that the appellant was not guilty of homicide, that is to say neither of murder nor manslaughter.

It was pointed out that at the trial certain facts would seem to have been established by the prosecution as they were unchallenged by the Defence.

(i) As established by the medical testimony, the deceased died from shock and haemorrhage following a punctured wound of the abdominal wall and liver and that a sharp-pointed knife could have caused that punctured wound.

(ii) At the time when the deceased received the punctured wound, the appellant and the deceased were engaged in fighting each other. In the course of fighting, both men fell to the ground and they rolled across the road into a trench which bordered the road. In the trench the appellant had the deceased’s neck under his arm and was holding on to a boat with the hand of the same arm with which also he was holding the deceased. He was seen to be there cuffing the deceased. A witness by the name of Blair who came up had to pull the deceased away from the Applicant’s grip and dragged him on to another boat nearby. Then the deceased was seen to have the wound on the right side of the abdomen which the doctor testified to have produced the shock and haemorrhage causing death.

(iii) The appellant had been seen immediately before the fight to have a knife stuck in a belt around his waist.

The star witness, Calvin Glasgow, the son of the deceased who had testified that he saw the appellant inflict the injury on his father , was confronted with his deposition before the magistrate, in which he had said “I did not see low my father got the cut on his belly”.

The appellate court’s judgment was also critical about the judge’s direction in relation to the witness’ contradictory statements.

The judgment noted too, that the trial judge had failed to properly direct the jury as to what weight they should attach to the claim by the defence that the appellant had been wounded on the forehead by the deceased.

Dealing with the question of the wound on the deceased, the appellate court judgment added, “True, the jury, as we have mentioned, were given proper direction as to provocation which they were told to apply to the facts; but when the learned trial judge came to deal with the facts of the wounding of the deceased by the accused with his knife, the jury may have understood the judge to be giving them the direction in law that it was in law murder and not manslaughter, so long as they found as a fact that the appellant had deliberately stabbed the deceased.

Instead of telling them it was murder, he should have asked them to find whether the injury on the appellant was or was not self-inflicted or received in the course of the encounter , and whether in the circumstances, there was a degree of provocation which was likely to cause a reasonable person to make use of the weapon he had at hand in a transport of passion; and that if so, found it would be manslaughter only.

Because of the inadequacy of the summing-up as stated above, the Appellate Court set aside the conviction of murder and substituted in its place one or manslaughter with a sentence of 15 years penal servitude.