Rex v Blom

• Jurisdiction: South Africa
• Judge: Stratford CJ, De Wet JA, Watermeyer JA, Tindall JA and Centlivres AJA
• Judgment Date: 10 November 1938
• Citation: 1939 AD 188
• Court: Appellate Division

Stratford, C.J.:

The accused was convicted by PITTMAN, J., sitting with two magistrates as assessors, of the murder on the 29th April, 1938, of a native woman aged between 20 and 30 years. At the conclusion of the trial three questions of law were reserved for the decision of this Court and a special entry was made which was based on an alleged irregularity.

The first question reserved being whether there was evidence on which a reasonable man could convict, it is necessary to mention the main facts and the findings of the trial Court.

The evidence as to the findings of the body and what was observed at the place where it was found and at the post mortem examination held about 15 hours after death is thus summarised in the judgment of PITTMAN, J. : -

"At a few minutes past 10 on the night of Friday, April 29th last, a passenger train, travelling from Rosmead to Graaff-Reinet, ran over the body of a native woman, Elsie Yalola. This body was lying across the left-hand rail at a spot some fifteen miles from Graaff-Reinet and 220 yards on the Rosmead side of the cottage, No. 48, of a railway ganger, Marais. There since the commencement of the month the woman had been in domestic service. After being struck by the engine the body was dragged about 10 feet and then thrown off the line to the left. It had been observed from the engine by the stoker, Koekemoer, when the distance between him and it was between 20 and 30 yards, but he realised that it was a human body only when this distance had been reduced to some 10 or 12 yards. Koekemoer observed no movement whatever in the body before the impact. Its close proximity at the moment it was observed by him is explained by a bend in the line which prevented the headlights of the engine playing upon the particular spot where the body lay on the line, until such moment. Immediately Koekemoer observed the object he shouted to the driver, van der Merwe, to stop the train, but, though van der Merwe acted at once upon this direction he was unable to avoid an impact. The train was brought to a standstill only after the engine at least had reached a spot on the line on the Graaff-Reinet side of the ganger's cottage. As it approached the body the engine's whistle had been blown, and the rumbling noise made by the train itself was intensified by the nature of the gradient, downward, and by the surrounding hills. The ganger, Marais, was summoned and immediate investigations

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were set on foot. These revealed the mutilated condition of the body, the woman's body, over which the train had passed. This was left untouched throughout the night, and the next morning between 8 and 9, in the position in which it had been thrown by the train, it was examined by Dr van. Schalkwyk, the district surgeon, and Dr. Naude. The former some four hours later conducted his official post mortem. Each of these doctors gave it as his opinion, Dr. Naude rather more strongly than Dr van Schalkwyk, that the woman was already dead at the time the train passed over her body. This conclusion they rested upon the meagre quantity of blood which had come from injuries clearly attributable to the impact. There was an arm severed above the elbow, a toe and portion of a foot cut off, and an incised wound about 4 inches long and I inch deep on the inner side of the left thigh. From none of these injuries, so caused, had blood been exuded in a manner and to an extent consistent with infliction before death even upon an anaesthetised body. It is true that from the skull, apparently crushed in the impact, a considerable amount of blood appeared to have issued on to the ground after the body had been thrown to the side of the line, but this issue, the doctors said, was consistent with post mortem injury. The head is the seat of a large quantity of blood, and the situation of the corpse at the spot was such as would cause this blood to find its way on to the ground beneath the head. The corpse when the doctors saw it had been lying in that situation for some 10 to 11 hours.

"The opinion held by the doctors that death occurred before the train struck the body raises the enquiry how death was caused. The body, in their view dead, lay across the rail. With the possible exception of the head there was then no external portion of it bearing indication of any previously-inflicted mortal injury. The throat, for instance, had not been cut, nor had any other fatal wound been inflicted. Nor was there any sign that the woman had been strangled. All existence upon the body of indications which would have evidenced any such injury was directly negatived. Leaving aside the head, all the injuries which post morte in observations disclosed were presumably caused as the result of the train's impact, and - to judge from the absence of bleeding - after death. Only upon the head does it appear

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possible that there may have been injuries inflicted before the train ran over the body. There may have been a blow with some heavy instrument, a stab with a knife, or some other head injury, all indication of which was destroyed in the extensive damage to the skull undoubtedly caused by the train. But had there been any such blow or stab to cause death, then the wound would almost certainly have bled, and blood would have been found at the spot where the head was resting, as the body lay on the line, before the train ran over it. Also a doek which the woman had been wearing, found between the rails immediately after the impact and apparently struck from her head as the train swept along, would presumably have been bloodstained or borne other, indications of the injury. But there were none such on the doek. Their absence and the absence of blood where the body was first lying render strong support to the conclusion that, assuming the woman was dead as her body lay across the rail, she met her death as the result of some other instrumentality than violence causing external lesion.

"On the indications such instrumentality may well have been the administration of chloroform or some substance of similar properties in the manner suggested by the Crown. There was no trace internally of any poison, and nothing there to account for sudden death. The woman was last seen alive just before nine, apparently perfectly healthy. Her death, which occurred not more than at most about an hour later, could have been caused by inhalation of chloroform, notwithstanding that all traces of such inhalation had disappeared by the time the railway witnesses came upon the body."

The effect of the medical evidence accepted by the trial Court is that death was due to sudden shock. Such shock causing death might be caused by a blow on the head or by chloroform applied in concentrated form to the face; but the doctors could not say whether the shock in the present case was due to a blow on the head or to chloroform; for the head had been crushed by the train after death, and if death were caused by the application of chloroform to the face no trace of it would be expected after the time that elapsed between the death and the post mortem examination in this case.

The main features of the evidence against the accused, which

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was circumstantial, are mentioned in the judgment, which also gives findings on certain evidence led by the Crown for the purpose of proving that the accused had a motive for killing the native woman Elsie. At the time of her death Elsie, who had previously had two children by a coloured man, had been pregnant for five or six months. The trial Court found, on certain evidence led by the Crown, that sexual intimacy had existed between the accused and the deceased for some months before her death, that in March and April he was trying to find the means of securing an abortion, that he gave Elsie mixtures containing certain ingredients, that the conclusion was irresistible that he was responsible for her pregnancy, and that therefore there was no absence of motive to weaken the evidence connecting him with the crime.

The main features of this evidence were the following: On the afternoon of 29th April the accused bought an ounce of pure chloroform from a chemist in Graaff-Reinet, signing the false name of Swart in the poison register and stating falsely that a teacher on the farm Willow Slope, where his parents lived, wanted the chloroform to make a poison bottle for insects. On 18th May, the day of accused's arrest, when Inspector Talken showed him a search warrant and told him he was looking for a chloroform bottle, the accused remarked that he had never had such a thing in his possession.

It appears that in April the deceased was employed by the witness Marais, a ganger, whose cottage was about 220 yards from the spot on the line where the body was found. This spot is about 21 miles north-east of Graaff-Reinet, and "Willow Slope" is 4 miles further in the same direction. The accused was seen at about 5.30 p.m. on 29th April travelling on a bicycle at a spot about 13 miles outside Graaff-Reinet and 8 miles from the spot where the body was found. These distances are taken in a direct line, and the actual distances by road may have been somewhat greater. He was travelling at the time on a road leading past the ganger's cottage and on to "Willow Slope." The accused, who gave no evidence himself, called his brother, the latter's wife and certain other witnesses to prove that on the evening and the night in question the accused was on his brother's farm "Die Draai," two miles east of Graaff-Reinet, and that therefore he could not have been travelling on his bicycle 13 miles to the north-east of Graaff-Reinet at 5.00 p.m. and could not have been at the spot

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where Elsie met with her death between 9 and 10 p.m. The trial Court did not believe the witnesses called by the, defence in sup. port of this alibi. Mention must also be made of certain...