<p> Foster-Sutton, P. The appellant was charged with having on the 13th day of February, 1953, at Mpraeso in the Eastern Judicial Division, murdered one Kwaku Tawiah.</p><p>The case came for trial before Van Lare, J., and a jury, and the latter after a careful and detailed summing-up by the learned trial Judge brought in a unanimous verdict of guilty of murder:</p><p>The facts of the case are fully set out in the summing-up, it is therefore sufficient to say that the appellant caught his wife and the deceased, his brother, having sexual intercourse, that he called her to him and they had words about the matter during the course of which the appellant alleged that his wife said that while he, the appellant, was away from home she had the right to marry his brother. The appellant then became annoyed, took up a cutlass, and told his wife to lead him to the latrine which she did. When they reached there they had a further discussion which ended in the appellant striking her with his cutlass and killing her, He then returned to his room, took up his gun and proceeded to his brother’s store where the latter lived. When he reached there he knocked on the door and called to his brother “to get up and come” . The brother then opened the door and stepped out on to the verandah, and after a short discussion the appellant shot at the brother, killing him.</p><p>An act of adultery committed in the view of an accused person with or by his wife is one of the matters which section 234 of the Criminal Code expressly provides may amount to extreme provocation, but the onus of proving that such provocation deprived him of the power of self-control so as to reduce the offence to manslaughter is upon an accused person: section 233 (1) of the same Ordinance.</p><p>Counsel for the appellant, Mrs. Forster, submitted, inter alia, that the trial Judge erred in telling the jury during the course of his summing-up that the statement given by the accused “appeared to eliminate matters of extenuation”, thereby wrongly creating the impression that the killing was not done in the heat of passion.</p><p>We are unable to agree with this contention because it is clear from the summining-up that there was no misdirection, and that the learned trial Judge put the case fully and fairly before the jury.</p><p>In view of the discussions which the appellant admitted took place, firstly with his wife, and secondly with his brother, after he had seen them in intimacy and before he used his cutlass and his gun, and in view of his evidence that he invited her to lead him to the latrine and after killing her changed his weapon and went after his brother, it seems to us that there was evidence to justify the jury m coming to the conclusion that at the time he shot at and killed his brother he was not in such a state of passion as to make him no longer master of his mind. Circumstances which merely predispose to a violent act are not enough. It is necessary to go further and show that at the time the act was committed the person committing it was in fact deprived of the power of self-control.</p><p>In the circumstances we do not think that, as a Court whose duty it is to give effect to the law and not to administer the prerogative, there is anything which would justify us in upsetting the verdict of the jury and substituting one of manslaughter. We would, however, without in any way wishing, or presuming, to dictate to the Executive as to how the prerogative of mercy should be exercised, express the hope that they may find it possible to take a course which, is not open to us as a Court of law.</p><p>Appeal dismissed.</p>