AGUMADU V. THE QUEEN

• Pages: 153-156

AGUMADU V. THE QUEEN

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153

AGUMADU V. THE QUEEN

5

NWOGUGUA AGUMADU

V

10 THE QUEEN

FEDERAL SUPREME COURT.

BRETT,



F.J.

TAYLOR,



F.J.

15



BAIRAMIAN,



F.J.

23rd May, 1963.

APPELLANT

RESPONDENT

SUIT NO. FSC 10

4

/

1

963

Legislation - Criminal Code, s.320, s.338 - Criminal Procedure Ordinance, s.179(1).

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Criminal Law and Procedure - Conviction of lesser offence - Count of attempted

murder laid under subs.(1) of s.320 of Criminal Code - with allegation of

matchet cuts - Conviction for unlawful wounding.

ISSUE:

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1. Can a Judge under s.179 of the Criminal Procedure Ordinance convict an

accused of unlawfully wounding contra s.338 of the Criminal Code where he

is tried for attempted murder contra s.320(1) of the Code.

FACTS:

The appellant was tried on a count laid under section 320 of the Criminal Code,

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and the particulars alleged that he "unlawfully attempted to murder Nwoji Aguma-

du by giving him matchet cuts"; the Judge acquitted him for attempted murder but

found him guilty of unlawfully wounding contra section 338 of the Code; the ques-

tion was whether this conviction was authorised by section 179(1) of the Criminal

Procedure Ordinance.

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HELD:

1. For the purposes of section 179(1) of the Criminal Procedure Ordinance, the

particulars constituting the lesser offence must be such as can be carved out

of the particulars of the offence charged. Here, the particulars alleged are:-

(a) Matchet cuts.

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(b) Unlawfulness and

(c) Intent to kill;

And of these (a) and (b) made up the offence of unlawful wounding, which car-

ries a lighter punishment than attempted murder and so is a lesser offence, and

the conviction passed was warranted by the sub-section.

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2. (Quoting Avory, J, in

R. v.

O'Brien

(1911) 22 Cox C.C. 374 with approval): "At

Common Law a defendant may be convicted of a loss aggravated felony or

misdemeanor on an indictment charging a felony or misdemeanor of greater

aggravation, provided that the indictment contains words art to include both

offences."

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[As to

Alternative Conviction on indictment for murder

see 11 HALSBURY'S

LAWS 4th Edition 183 para 312.]