CRI/T/8/87
IN THE HIGH COURT OF LESOTHO
In the matter of:
REX
v
EDWARD MOSHOESHOE LETSIE
JUDGMENT
Delivered by the Hon. Mr. Justice Sir Peter Allen on the 17th day of May, 1988
The accused is indicted on a charge of murder. It is alleged that he killed one Nkopo Maphasa Lenono by shooting him on 12 October 1986 at Lower Thamae, Maseru. The evidence of eight of the witnesses who testified at the Preparatory Examination was admitted and four prosecution witnesses gave evidence at the trial.
The accused is a Trooper in the R.L.M.P. with seven years police service. He was not on duty at the time of the shooting. On the night of 11-12 October 1986 the deceased Nkopo was aged between 18 and 20 years. He was sleeping at what was apparently his parents' home in a room which he shared with another youth called Mathai Moroeng (PW3). In another room slept 'Matanki Rakuoane (PW2), who was employed as a domestic servant by the deceased's parents. She had a visitor sharing her room, one 'Makhauta Leche, who was not called as a witness.
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Between 'Matanki's room and the deceased's room was a kitchen. The accused was living in a neighbouring house. He had recently got to know 'Matanki and, according to the accused, she had agreed to meet him and become his lover that evening. In Court 'Matanki denied this.
The accused went out drinking in the evening and arrived outside 'Matanki's room at some time estimated variously as between 10.00
p.m. on 11 October and 1.00 a.m. on 12 October. He knocked at the door and 'Matanki asked who was there. The accused called out his name and she replied that she was in bed and would not open. After a pause he knocked on the door again with more force and 'Matanki lit a candle and opened the door. She said that the accused was drunk and he seized hold of her and hit her on the head and he tried to tear off her nightdress.
'Matanki called out to Nkopo to help her and he and his friend Mathai came from their bedroom. In the struggle between the accused and 'Matanki she pushed the accused backwards and he fell on to the step. In doing this the police revolver that he carried tucked into his waistband fell out on to the ground. Nkopo asked what was the matter and then he kicked the pistol on the ground and asked, "What is this?" The accused stood up and picked up the pistol which was fully loaded with five rounds.
Nkopo told the accused to go away and the accused turned to him and, according to both 'Matanki (PW2) and Mathai (PW3),the accused said, "I am killing you now". Nkopo had retreated into the back of 'Matanki's room. The accused fired one shot which hit Nkopo in the chest. The deceased called out, "Moshoeshoe, what are you doing
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to me?" and somehow he was able to run out of the room towards the compound gate where he fell down and died.
Several people came to the scene and saw the deceased's body. The police eventually collected the body after the accused had reported to the charge office. At the hospital the body was identified by Ratjomose Maphasa, a cousin of the deceased and a postmortem examination was carried out by Dr Monaphathi. The testimony of Maphasa and the doctor was admitted. The P.M. report (exhibit "A") indicated that there was one bullet wound which entered the heart and shattered the vertebrae. The bullet was removed and handed to Det. L/Sgt. Nolechungu (whose testimony was admitted). He handed it to Det. W.O. Makamane.(PW1) who tendered it as exhibit 3.
Det. W.O. Makamane (PW1) and Det. Tpr. Koma went with the accused to his house. There the accused showed them a revolver (exhibit 1) which he produced from between two sheets of corrugated iron in a disused latrine. The accused in his testimony denied this and claimed that the pistol was instead kept in his house in a dressing table drawer. But in fact the testimony of W.O. Makamane on this point was confirmed by that of Det. Tpr. Koma, whose testimony had been admitted by the defence. The live rounds had by then been removed from the pistol leaving only one empty cartridge case in the chamber (exhibit 2).
The pistol and other related exhibits were taken to the fire arms examiner, 2/Lt. Telukhunoaha, whose testimony and report (exhibit
'B') were admitted by the defence. The weapon (exhibit 1) was an American Smith and Wesson .38 Special pistol which holds five bullets in a revolving
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chamber. The empty cartridge case (exhibit 2) had been fired in the same revolver. The bullet (exhibit 3) removed from the deceased's body had been so damaged and distorted, I think possibly when striking the deceased's bones, that the examiner was unable to decide whether it had been fired from the same weapon, but the bullet was of the same calibre i.e., .38. The weapon was test-fired and found to be in working condition.
The firearms examiner failed to check and examine the weapon when he first received it so as to ascertain whether it had been recently
fired. This should always be done, automatically in fact, before cleaning the gun and test firing it. The examiner did not mention in his report that the firearm had no safety catch fitted. This information was revealed in Court.
The accused testified in his defence. He stated that he had served in the police force for seven years as a uniformed trooper. He had been performing bank cash escort duties and he was issued with the firearm in question. He said that he carried it around with him everywhere fully loaded with five live rounds, though he admitted that it was not necessary to do so.
He stated that he had known 'Matanki (PW1) for less than one month and that she had agreed to become his lover on the evening of the incident, which was Saturday 11 October 1986. On that day he was not on duty and he watched a football match in the afternoon until 5.00 p.m. After that he began drinking, first consuming four cans of beer at a hotel and later he went to a place called Peete's Lodge where he joined a group of people and they drank quart
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bottles of beer. He could not say how much he drank there but he became drunk.
He then made his way to Matanki's house and knocked on her door twice before she reluctantly opened the door, at the time protesting that she was sleeping. The accused claimed that she then said, "You must come in and get what you want." That may have been what he wanted her to say but it does not seem likely that she did say so in fact since, at the same time, she pushed him away and he fell on the step. Apparently his pistol fell out of his waistband on to the ground at that time.
The accused stood up and started to hit 'Matanki on the face and head and they struggled together. He held her nightdress as she tried to defend herself and the dress tore. She called to Nkopo to help her and he came outside and kicked the gun, at the same time asking what it was. The. accused hit 'Matanki again and she got away from him. He picked up the gun and put it back into his waistband. He said he resumed punching and slapping 'Matanki until she broke free and ran into the house. He tried to prevent this by pulling her nightdress again. She and Nkopo entered the house and pushed the accused out so that he fell down again on his back and the gun fell out on to the ground again. While still lying down he picked up the gun to put it back into his waistband and, so he said, "It fired when I raised it up." He denied saying, "I am now killing you" and maintained that the gun fired accidentally.
Nkopo then ran out of the house and fell down dead. by the gate. The accused insisted that he handed the gun to
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W.O. Makamane (PW1) after taking it from a drawer in his dressing table and that it was not found hidden between corrugated iron sheets in an old latrine. However, there was no reason revealed for the W.O. to be lying about this and, in any case, Det. Tpr. Koma confirmed the W.O.'s testimony; and Koma's testimony had been earlier admitted by the defence.
Matanki's evidence appeared to show that the accused was standing when he fired the gun, but Mathai (PW3) agreed with the accused that he was still on the ground when the gun was fired. Bearing in mind that this incident happened 1½ years ago and that 'Matanki was being constantly assaulted at the time and was no doubt in a confused state, she may possibly have been mistaken about it. I would accept the evidence of Mathai and the accused that the gun was fired while the accused was on the ground.
For some reason, when he was being cross-examined. the accused chose to insist that his gun was not fired at all, although in his
examination-in-chief he had in fact stated that it fired when he lifted it off the ground. Both 'Matanki and Mathai stated that they saw the accused fire his gun and I can see no good reason to disbelieve them. There was no evidence of anyone else having a firearm or having any reason to fire a gun, or even of any likelihood of there being another gun in the area. It would have been more helpful if either W.O. Makamane or the firearms examiner had taken the trouble to examine the gun to see whether it had been fired recently, but they did not do so unfortunately. However, I have no doubt from the evidence available that the single shot which was fired came from the accused's gun and that he was the one
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who fired it. Indeed, as I have said, the accused himself stated in his evidence-in-chief that his gun fired, though he claimed that it went off accidentally. The witnesses both said that the accused aimed the gun before he fired and said, "Now I am killing you" or words to that effect. Furthermore the accused hid the gun after the shooting incident.
The witnesses agreed with the accused that he was behaving as if he was very drunk at the time. The accused in his defence tried to persuade the Court that he was so drunk that he could not have known what he was doing and so he could not be held responsible for his actions. I do not believe that this was so because he was able to walk to his home and to knock on 'Matanki's door. He recognised and deliberately assaulted 'Matanki. He twice picked up the gun from the ground, which action requires more coordination of eyes and muscles than an extremely drunk person can usually manage. I accept that he was indeed very drunk at the time, but not so drunk as to be incapable of knowing what he was doing.
However, I have some doubt whether, in the condition that he was, the accused was able to form an intention to kill. It is just possible that he fired the gun to frighten the witnesses. It is a very dangerous type of firearm since it has no safety catch fitted to prevent it from being fired without thought or accidentally. It was not necessary for the accused to carry such a gun with him all the time and most certainly not when he was out drinking. He could have fallen down or been involved in an accident which might have resulted in the gun firing itself and seriously injuring him.
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Furthermore, if it had to be carried, the safest way of doing so would have been to unload it and to carry the bullets separately. When this was pointed out to the accused he agreed but admitted that he had taken no such precautions. I would expect a police officer of his length of service to have been more careful with a firearm and also to have exercised restraint when he was out drinking and not to have got himself so drunk.
He disturbed the woman 'Matanki late at night and assaulted her a number of times without any good reason. The evidence indicates that be became more and more aggressive and that he probably lost control of himself while he had the loaded gun in his hand. He fired it in the direction of the witnesses but I am prepared to give him the benefit of what little doubt there is and I find that there is not sufficient evidence to show that he had an intention to kill at that time. However, his continual assaults upon 'Matanki and his firing of the gun were clearly unlawful actions for which the accused was responsible and which resulted in the death of Nkopo, an innocent boy who unfortunately happened to be present at the time. Consequently I find that the offence committed by the accused amounted to culpable homicide and not murder. The Assessors agree with this verdict.
Accordingly the accused is convicted of the offence of culpable homicide.
P.A.P.J. ALLEN
JUDGE
17 May 1988
Mr Pheko for defence
Mrs Mophethe for Crown
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SENTENCE
The accused is a first offender aged 32 years and married. He has served in the police force for 7 years and this conviction means the end of his police career. He has been on bail awaiting his trial.
As a result of his irresponsible behaviour and drunken aggressiveness he took the life of a teenaged youth who had done him no harm at all. The offence is worse because the accused was a police officer whose duty is to prevent such crimes and to protect the public. I understand that the accused has paid cattle to deceased's family to "raise his head" and has contributed towards funeral
expenses which shows signs of remorse.
In the circumstances the accused is sentenced to imprisonment for 4 years.
ORDER
The gun (exhibit 1), the empty cartridge case (exhibit 2), and the spent bullet (exhibit 3) are to be handed over to Maseru Police for disposal.
The other exhibits i.e., the jacket of the accused (exhibit 4) and the nightdress of 'Matanki (PW2), are to be returned to their respective owwers if they want them;
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otherwise to be destroyed.
