Verity, C.J. This is an application for leave to appeal from a conviction for murder. The Counsel assigned to argue this application submitted on behalf of the applicant, that there was no evidence of the death of the person with whose murder he was charged. It is conceded by the Crown that there does not appear on the record any direct evidence of the death of the person whom he is alleged to have murdered. In these circumstances the question arises as to what course this Court should pursue.
Section 40A of the Native Courts Ordinance (Cap. 142) provides that any Court exercising appellate jurisdiction may:-
“substitute any other decision . . . which the Court of first instance could have made on the facts disclosed by the evidence, but so that, by the decision so substituted, the appellant shall not be found guilty of any offence with which he was not charged before the Court of first instance, unless the appellant Court or authority is satisfied that the defence of the appellant before the Court of first instance would not have been substantially affected if he had been so charged.”
This provision cuts through a good many of the more technical provisions in regard to the substitution of one conviction for another in cases tried before the Supreme Court, and it appears to us that it gives ample authority for this Court to substitute any decision which the Court of first instance could have made on the facts disclosed, provided, we are satisfied that the defence before the Court of first instance would not have been affected by the substitution. It appeared to us that the defence of the applicant could not have been substantially affected had he been charged with the crime of attempted murder. There can be no doubt that upon the facts of the case as disclosed by the record, facts which have been amply proved, the Court found and must have found on the evidence before it that the appellant inflicted injuries and that he inflicted them with the intent to kill or do grievous bodily harm. Had it been proved that the man had died there would be no doubt that the applicant had been properly convicted of murder. That he struck the man with the intent to kill him appears to us to be established by the evidence beyond all doubt. His defence could have been no different had the charge been that of attempted murder instead of murder. In these circumstances, therefore, this Court will substitute for the conviction for murder a conviction for attempted murder and for the sentence of death a sentence of ten years imprisonment with hard labour.
Arthur Lowey, J.A. I agree. M. de Comarmond, S.P.J. I agree.
Appeal allowed. Verdict of attempted murder substituted for verdict of murder.