R v Bergstedt
Jurisdiction | South Africa |
Judge | Schreiner ACJ, Hoexter JA and Brink AJA |
Judgment Date | 22 August 1955 |
Citation | 1955 (4) SA 186 (A) |
Hearing Date | 15 August 1955 |
Court | Appellate Division |
E Schreiner, A.C.J.:
The appellant was convicted by a jury on two counts. On a count of attempted housebreaking he was sentenced by DE VILLIERS, J.P., who presided at the trial, to four years' imprisonment, and no appeal has been brought in respect of this count. On the other count, F which was one of assault with intent to murder, he was sentenced to seven years' imprisonment, the sentences to run concurrently; he appeals on this count, leave having been granted under sec. 369 (6) (iii) of Act 31 of 1917 (now sec. 363 (6) (iii) of Act 56 of 1955).
The charges related to what happened on the night of the 16th October, 1954, when the appellant and three other young men, two of whom were G charged with him, attempted to effect a burglarious entry into a jeweller's shop in Worcester. They were disturbed at their work by a constable, Paulse, and scattered; while Paulse was looking for them, one of them, not the appellant, shot him in the stomach with a pistol. At the time that the shot was fired the appellant was some thirty yards away, and was running from the scene. The responsibility of the H appellant for the attempted murder of Paulse depended on the application of the principles of common purpose.
The appeal rests entirely upon certain criticisms of the summing up.
The first point taken on behalf of the appellant was that at one stage in his summing up the learned JUDGE PRESIDENT, in attempting the difficult task of simplifying or clarifying for the jury's benefit the notion
Schreiner ACJ
of reasonable doubt, said 'a reasonable doubt means a substantial doubt'. It was argued that 'substantial' would naturally convey to the jury that, to justify conviction, the Crown had only to show that there was not much doubt, or not a considerable measure of doubt, as to the A guilt of the three accused persons, and reliance was placed upon the case of Rex v Ramanu, 1952 (1) SA 397 (AD), where the trial Judge, in summing up in Afrikaans, had used the expression 'aansienlike twyfel' in order to convey to the jury the meaning of reasonable doubt. But Ramanu's case does not govern the present one. The word 'substantial' may certainly be used in the sense of 'considerable', but in the present B case the rest of the summing up should have made it sufficiently clear to the jury that the only doubts that they had to exclude were far-fetched or trifling ones. The learned JUDGE PRESIDENT pointed out that a mere probability of guilt was not enough. He spoke, too, of a 'real' doubt and I think that in the context the jury should have C understood that the word 'substantial' was meant to rule out doubts that were unreal or insubstantial, and not doubts that were only less than considerable or serious ones.
A more important criticism of the judgment is that the learned JUDGE PRESIDENT, in stating the principle of common purpose, said:
'If two or more persons form any intention to prosecute an unlawful purpose and to assist each other therein, then under the general D principles of the law of agency, each of them is a party and is liable to punishment for every act committed by the other or others in the prosecution of...
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