Harragin, C.J. There is only one point of substance in the grounds of appeal filed in this case. It reads as follows:-
“The learned trial Judge misdirected the jury by stressing the fact that the defendant pleaded guilty at the beginning of the trial when he had not the benefit of Counsel’s advice.”
The facts are that, when the appellant was charged with the offence of murder, he pleaded guilty, but the Court very properly ordered a plea of not guilty to be entered and the case to be tried on this plea. If this had been all that had happened, no fault could have been found with the procedure, but unfortunately in the very sketchy notes of the trial Judge’s summing-up, it is clear that the jury were invited to consider this plea of guilty when applying the law to the facts of the case. This reference was irregular. In so far as the jury were concerned, the plea was that of not guilty, and it may well have been that they were not even in Court when the appellant pleaded guilty. The fact that the learned Judge directed that a plea of not guilty should be entered clearly indicated that he was not satisfied that the appellant understood the real meaning of his plea, and it was most improper subsequently to submit to the jury a plea obviously given in mistake with a suggestion that the jury should draw some inference from the mistake. The proper course to have been taken would have been to have directed the jury that, if by any chance they happened to have been in Court when the appellant pleaded guilty, they should dismiss the incident from their minds entirely and treat it as a mistake which in no way affected the merits of the case.
The facts of the case are almost beyond argument. The appellant killed his brother over some very trifling dispute after having drink taken. It is, therefore, perfectly clear that no reasonable jury could have found the appellant not guilty, but it is by no means so clear that they must have found him guilty of murder had they not been asked improperly to consider the appellant's ill-advised plea. Under these circumstances we are of the opinion that the verdict should be varied from one of murder to that of manslaughter.
In the course of the case Counsel for the appellant. rather half-heartedly, attempted to argue that the absence of a relevant witness who might have given evidence on behalf of the Crown entitled the appellant to be acquitted. In support of this argument he quoted the case of Rex v. Thompson Udo Essien (1), the headnote of which reads as follows: “Relevant witnesses not having been called and evidence heard being insufficient to support conviction the appeal is allowed.”
The essential difference between that case and the case now under review is that here there is ample evidence to support the conviction even though a relevant witness may have been omitted from the Crown case. In any event, the law on the subject is clearly set out in the case of A del Muhammed El Dabbah v. The Attorney-General for Palestine (2), where it was held by the Judicial Committee of the Privy Council that a prosecutor had a discretion as to what witnesses should be called, and the Court would not interfere with that discretion. It was consistent with the discretion of Counsel for the prosecution that it should be a general practice to tender such witnesses for cross-examination by the defence, put it remained a matter for the discretion of the prosecutor. This would appear to settle the matter finally, and the only reason attention is called to it in this case is the fact that Counsel so frequently take his point on appeal.
The verdict of guilty of murder is set aside, an a finding of manslaughter substituted therefore. The appellant is sentenced to a term of imprisonment for ten years with hard labour.
Appeal allowed and conviction for manslaughter substituted.