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President :- In this case the three Appellants were convicted in the High Court of the Enugu-Onitsha Division, sitting at Afikpo, of the murder of one Okorafor Eze.
The facts are adequately given in the evidence of the 1st Appellant which the learned trial Judge believed :- “One ‘Nkwo’ day I went to my farm, 2nd and 3rd accused were walking behind me with another man. At my farm I saw the footprints of a cow and was surprised because our cows do not go there and I suspected it was a stolen cow. I ran back and called the other three saying I saw the footprints. We followed the footprints to Azu River where we met Okorafor Eze and the cow tied to a tree. I knew Okorafor Eze as a well known thief. When he saw us he ran away. We pursued him and I commenced to beat him with a stick. The others had machetes and beat him with those until he died.
“We left the body lying in the bush and returned to the cow, where we met Ani Nwede. We told him the thief had run away. We then took the cow back to Isu.
“.I don’t know what happened to the body as I became ill. When the Police came to the village I was arrested and at first denied killing Okorafor out of fear. Afterwards I admitted killing him along with the others.
“I did this because a thief will reduce people to poverty and it was formerly the custom to kill or sell into slavery thieves caught in our town. Nowadays a thief is still killed secretly
“I do not think it is a bad thing to kill a thief. If a man kills a thief he has done well.
“When we came up with the thief he showed fight and tried to defend himself with his machete and escape. I took his machete after his death and handed it to the Police. Exhibit “D” is the machete in question.
“I used a stick and not a machete. Exhibit “B” is the stick which I handed to the Police and I made the statement which was read in Court.”
The 2nd Appellant told the same story saying :- “I killed this thief because we hate thieves. This Okorafor Eze was armed with a machete which he tried to use in order to escape.”
Upon these facts the learned Counsel for the Crown has not sought to uphold the convictions for murder nor has he asked us to substitute convictions for manslaughter. We agree with him that in the circumstances the convictions for murder cannot be upheld. Upon the question of manslaughter in our view the act of the Appellants would amount to manslaughter if it were shown that the death of Okorafor Eie was caused by wanton beating or cutting with machetes after all possibility of resistance by him had ceased, but it would be jus1ifi.able homicide if the fatal blow were struck whilst Okorafor Eze was still defending himself with his machete. There is no evidence either way as to this and no finding of fact upon this point by the learned trial Judge The benefit of the doubt must therefore be given to the Appellants, and we do not feel justified in substituting convictions for manslaughter. In coming to this conclusion we wish to guard against the possibility that we may be taken to be endorsing then opinion of the 1st Appellant that it is not a bad thing to kill a thief. It is necessary to warn him and others who hold that view that if they kill a thief when he is not resisting and those facts are proved they will certainly be punished under the Criminal Law.
The apples of all three Appellants are allowed, the convictions and sentences are quashed and it is directed that in the case of each Appellant a judgment and verdict of acquittal be entered.
The Appellants are discharged.