R v Huebsch

• Jurisdiction: South Africa
• Judge: Schreiner JA, Van Den Heever JA and Hoexter JA
• Judgment Date: 17 March 1953
• Citation: 1953 (2) SA 561 (A)
• Hearing Date: 24 February 1953
• Court: Appellate Division

G Schreiner, J.A.:

The appellant was convicted by a Judge and assessors of attempted murder and was sentenced to five years' imprisonment. Leave to appeal was granted by the trial Judge.

It is not in dispute that at about 4 p.m. on the 14th September, 1951, the appellant entered a bar at Johannesburg railway station and, after conversing with the complainant, a stranger, over one or two drinks, H drew a revolver and shot him in the stomach. The appellant, after covering his retreat by brandishing the revolver and threatening the other inmates of the bar, made his way out into the street, where he was arrested by a policeman a block or two away from the station.

At the trial the appellant gave evidence that from the time that he left the change house at his place of employment until his arrest his mind was a complete blank. Through his counsel he called

Schreiner JA

as witnesses a psychiatrist and a psychologist and sought to establish that he was, at the time when he fired the shot, suffering from a mental disease which explained his conduct and removed him from the range of criminal responsibility. On appeal this defence was not relied upon, the A contention for the appellant being that, in the light of the evidence that he was under the influence of liquor at the time, the Crown had not established beyond reasonable doubt that he was then capable of entertaining and did in fact entertain the intention to kill.

B Before the facts as disclosed by the evidence are examined it is necessary to refer to the unusual course adopted by the learned trial Judge after the evidence had been led and counsel had addressed the Court. Instead of the Court's considering its decision and giving its verdict by way of a reasoned judgment delivered by the learned Judge, C the latter summed up to himself and the assessors, concluding with the following passage:

'I think I have dealt fully enough with the matter to enable the three of us to decide this case. It seems to me that there are only two verdicts to consider. The one is guilty of attempted murder, and the other is not guilty of attempted murder, but as a jury might decide, despite the summing up, that it is neither of the two, but that it is D assualt with intent to do grievous bodily harm or common assault. We will now adjourn to consider our verdict.'

When the Court returned to the court-room the learned Judge delivered a brief judgment in the following terms:

'We are unanimous in our finding. We don't believe that the accused suffered from amnesia from the time he left his work until the time of E his arrest, or at any time while he was in the bar. We feel that the motive for the shooting was his annoyance with the foreman, his dislike for his work, and his general fed-up-ness, so much so that it only required a spark to set him off. That spark set him off when the complainant refused a drink. We find that he was drunk at the time that he shot the complainant, but that he fired at the complainant recklessly, not caring what the result might be. We find him guilty of attempted murder, and we do so unanimously.'

F I do not know for what reasons or in reliance on what authority, the learned Judge adopted the above procedure. It is true that sec. 216 (7) of Act 31 of 1917 reads:

'The provisions of the Act relating to trials by a Superior Court shall, in so far as they can be applied, apply to any trial without a G jury under this section.'

This might seem to be a superfluous...