Rex v Tshabala

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Innes CJ, Solomon JA and Juta JA
• Judgment Date: 29 November 1920
• Citation: 1921 AD 13
• Hearing Date: 23 November 1920

Rex Respondent v Tshabala Appellant
1921 AD 13

1921 AD p13

Citation	1921 AD 13
Court	Appellate Division, Bloemfontein
Judge	Innes CJ, Solomon JA and Juta JA
Heard	November 23, 1920
Judgment	November 29, 1920

Flynote : Sleutelwoorde

Criminal law — Administering poison — Intention of person accused — Act 31 of 1917, sec. 372 — Reservation of point of law — Practice.

Headnote : Kopnota

Where under sec. 372 of the Criminal Procedure Act 31 of 1917 a question of law is reserved which depends upon facts not common cause, but in dispute on the evidence, then either the jury should be asked to give a special finding on

1921 AD p14

such facts or the facts upon which the reserved point depends should be set out in the record as part of the statement of reservation.

Where a judge sitting without a jury had reserved a question of law under sec. 327 of Act 31 of 1917 the Appellate Division, acting under sec. 374 (2) of the Act, remitted the matter to him to supplement the statement of the question reserved by a statement of the facts upon which the point reserved depended.

An accused put poison into a can of gruel intending to offer it to one Z, a fellow workman, against whom he entertained ill-feeling. He then deposited the can in an engine-house at a place where S and T, two other workmen, were accustomed to put their own food, and S by mistake drank some of the contents.

Accused did not place the can in the engine-house with the intention that Z should partake of the contents, but his intention was later in the day to offer Z a drink of the contents. He also intended to watch the can and to warn S and T in case either of them showed a tendency to drink the gruel. Held, the question being reserved under sec. 372 of Act 31 of 1917, that accused could not on these facts be convicted of administering poison to S with intent to do him grievous bodily harm.

Case Information

Appeal on a question of law reserved by the Orange Free State Provincial Division (DE VILLIERS, J.P.), under sec. 372 of Act 31 of 1917.

The facts appear from the judgments.

O. H. Hoexter, at the request of the Court, for the accused: There was no administering of poison. See R. v Lewis (6 C and p. 161).

There was no intention to do grievous bodily harm. See Halsbury's Laws of England, Vol. IX., sec. 504.

The intent specified in the indictment has not been proved. See R v Ryan (2 Moody & Robinson, 213).

C. C. Jarvis, for the Crown: To constitute an administering it is not necessary that the poison should have been delivered by the hand of the accused. See R. v Harley (4 C. & p. 369).

Putting poison in a place where it is likely to be found and taken, if done with intent to murder, is an attempt to administer poison within the English statute. See R. v Dale (6 Cox 14).

If A sends poison intending it for B with intent to kill B, and it comes into the possession of C, who takes it, but does not die, A may be indicted for a capital offence under-the English statute.

See R. v Lewis (supra), and R. v Michael (9 C. & p. 356).

The general principle applicable is that where A does an act with intent to injure B, but wounds C, he is guilty of wounding C with intent to injure him. See R. v Smith (7 Cox, 51), and R. v Stopford (11 Cox, 643).

As to the indictment, see sec. 127, sub-sec. (3) and sec. 243, sub-sec. (1) of Act 31 of 1917.

1921 AD p15

Judgment

Innes, C.J.:

The question of law submitted to us has been reserved in very general terms, and in view of the increasing frequency of these general reservations, it seems desirable to indicate the proper course to be followed...