Soma hii case upate changamoto, unaweza toa maamuzi yako pia wewe kama wewe

The case is based on a statute N.C.S.A (N.S.) which states in specific terms in Section 12-A that ‘Whoever Lawfully Takes The Life Of Another Shall Be Punished By Death.'

The facts of the case are as follows:

The four defendants and Roger Whetmore were members of a Speluncean Society in the Commonwealth of Newgarth. This society encouraged the exploration of caves.

Early in May of 4299 they, in the company of Roger Whetmore, penetrated into the interior of a limestone cavern of the type found in the Central Plateau of this Commonwealth.

While exploring the cave, when they were in a position remote from the mouth of the cave, a landslide occurred. Heavy boulders fell in such a manner as to block completely the only known opening to the cave, and therefore, they were all trapped within the cavern.

The five men were carrying scant resources with them. On their non return their families of the explorers informed the Society which in turn informed the State. A rescue party was promptly established for their rescue.

In the rescue operations, 10 workmen lost their lives in fresh landslides. A great expense was also incurred to rescue the trapped men.It was found that one of the explorers has a portable radio set capable of sending and receiving messages.

Therefore, contact was established by the rescue team with the trapped men. The five trapped men, after learning that it would be atleast ten more days until they were rescued, sought a professional medical opinion as to whether or not they could possibly survive this duration.

Upon being informed that they would not, they deliberated for eight hours after which they sought counsel first from the physician, then from a government official, and finally from a minister as to whether or not it would be advisable to cast lots and kill and consume one of their members so that the others may survive.

None of the three parties were willing to answer. None of them answered in the affirmative or negative. With their question unanswered, the men severed radio contact with the people outside.

On their eventual release, it became apparent that some twenty three days after their entry into the cave, the defendants had killed and eaten Whetmore.

In evidence, it was indicated that Whetmore had suggested that the group's survival would be impossible without nutrient, and that this would necessitate the eating of flesh of a member of the group.

It was also said that Whetmore himself had suggested the casting of lots by dice to choose such unfortunate member. However, Whetmore after reflection withdrew from the offer terming it frightful and odious.

He was accused by the defendants of breach of faith and they proceeded to cast dice. Whetmore also declared tat he had no objection to one of the defendants casting the dice on his behalf.

The throw of the dice was unfortunately against Whetmore. The other group members therefore killed him after which they ate his flesh.

After the defendants had been rescued from the cave and their suitable treatment, they were indicted for the murder of Whetmore in the Court of General Instances, the County of Stowfield.

The court found all of them guilty and were sentenced to death by hanging. Following the discharge of the jury, its members joined in communicating with the state's Chief Executive and requesting that the death sentence be commuted to imprisonment for a period of six months. Similar action was taken by the Trial judge.

The defendants brought a petition of error to the Supreme Court of Newgarth. The court issued its opinions in the year 4300. In the trial that ensued, the five judge bench gave differing opinions and profoundly different ratios for the same.

CHIEF JUSTICE TRUEPENNY

In his argument Chief Justice Truepenny after stating the facts as mentioned in Part I of this paper ruled in favour for strictly applying the letter of the law rather than interpreting the law.

According to him the jury and the trial judge followed a course that was not only fair and wise, but the only course that was open to them under the law.

He however also proposed to his colleagues that they follow the example of the jury and trial judge by joining in the communications they have addressed to the Chief Executive of the State for clemency for the defendants.


He said Law is what it is rather than what it ought to be. That is, it is free from moral considerations once it is enacted by a sovereign authority.

VERDICT:

He affirmed the decision of the trial court but however requested clemency also.

JUSTICE FOSTER,

His opinion is the best written one of the five.Justice Foster expressed shock at hearing of Chief Justice Truepenny's opinion. He argued that the Law of the Commonwealth is at stake if we try to textually apply the law in this case.

According to him, the defendants when trapped in the cave were outside the jurisdiction of Commonwealth of Newgarth.

VERDICT:

In his verdict, he set aside the verdict of the Trial court and held that purposive construction should be given to the statutes.

JUSTICE KEEN

In the outset of his opinion, Judge Keen says Executive clemency is a question for the Chief Executive, not for the judges to direct the Chief Executive.

He therefore disapproved of that passage in the opinion of the Chief Justice in which he in effect gives instructions to the Chief Executive as to what he should do in this case.

He said while deciding whether what these men did was "right" or "wrong" "wicked" or "good' is not for a judge to decide. He should not apply his conceptions of morality, but the law of the land.

The sole question before us, therefore, he said, for decision is whether these defendants did, within the meaning of N.C.S. A. (N.S.) § 12-A, willfully take the life of Roger Whetmore.


But that hard decision may even have acertain moral value by bringing home to the people their own responsibilities toward the law that is ultimately their creation and by reminding them that there is no principle of personal grace that can relieve the mistakes of their representatives, i.e. the legislators.

VERDICT:

He found the defendants guilty.

JUSTICE HANDY.

Justice Handy believed that law should be what the public wants. He disproved of what he called his colleagues' ability to throw an obscuring curtain of legalisms about every issue presented to them for decision.

According to him, since by a poll it was said that the majority populace wanted the defendants to be let off with a token punishment, the judges should comply with this popular opinion.

According to him government is a human affair, and that men are ruled, not by words on paper or by abstract theories, but by other men. They are ruled well when their rulers understand the feelings and conceptions of the masses.

"According to him, the case before the court was a question of practical wisdom, to be exercised in context, not of abstract theory, but of human realities.

He said the most obvious advantage of treating forms and abstract concepts as instruments is that it permits one to go about one's daily tasks with efficiency and common sense.

When these conceptions are applied to the case before the courts, decision becomes perfectly easy. He further added that this case has aroused enormous public interest.

In one widely read newspaper chain's poll, on the question, "what do you think the Supreme court should do with the Speluncean explorer?", about ninety per cent expressed a belief that the defendants should be pardoned or let off with a kind of token punishment.

It is perfectly clear, then, how the public feels about the case. And this is the decision the judges should give.

VERDICT:
He set aside the verdict and said that the court should follow public opinion.

JUSTICE TATTING.

Judge Tatting had a complete opposite view of that of Judge Foster. He said he cannot accept any of the latter's opinions, more so the first part of it. According to Tatting J. how can law of contract be more powerful than law of murder.

Secondly he asked a very fundamental question – when exactly did the 5-member company move from a ‘state of civil society' to a ‘state of nature'. Was it when the party entered the cave, or when the landslide occurred or when the party crossed the threshold of starvation.

Further, he asked the Supreme Court of Newgarth was created out of a positive law. From where does the court arrive its authority to decide a dispute on law of nature rather than law of the State.

VERDICT

He withdrew from the case.

=========Kiufupi kwa kiswahili=======

Kiufupi ni case inayowahusu watu wanne kama watuhumiwa wa mauaji. Kwenye hii kesi, walikuwepo watu watano waliokuwa wamezoea kutalii kwenye mapango huko mchini kwao.

Katika harakati zao za utalii, waliingia ndani ya pango moja wakiwa watano lakini kwa bahati mbaya lile pango liliporomoka na kusababisha kuzibika kwa njia ile ya kuingilia ndani ya pango.

Kitendo hicho kiliwafanya kutoonekana majumbani kwao hivyo taarifa ikabidi itolewe na ndugu zao kwa umma na serikali kuhusu kutorudi kwa ndugu ao waliopotea.

Katika harakati za kujiokoa walikuta kuna kifaa cha mawasiliano ambacho waliweza kuwasiliana na serikali yao iwaokoe, na hiyo ni baada ya kuwa wamekaa siku kadhaa bila ya kula wala nini, maana walienda bila chakula hivyo hofu ya kufa kwa njaa ikawajia.

walivowasiliana na serikali yao kuomba msaada, serikali ikaanza zoezi la uokoaji lakini katika zoezi hilo watu kumi walipoteza maisha kutokana na lile pango kutokuwa imara.

Zoezi la uokoaji lilichukua mada mrefu na hivyo ikabidi waombe ushauri wa kitabibu kama wataweza kuendelea kukaa kwa mda gani bila kula wakasurvive.

Daktari aliwashauri mda wa kuweza kukaa, wakaomba pia kama wanaweza kumtoa mmoja kati yao wamle ili wasife , kuhusu swali hilo hakuna aliyetoa jibu la kukubali au kukata dhidi ya maamuzi hayo hali iliyopelekea wabaki kwenye sintofahamu.

Kwa baati mbaya yale mawasiliano waliyokuta kwenye ilo pango gafla yalikatika na ikapelekea kutoweza tena kuwasiliana na kikosi cha uokozi.

Wakiwa ndani wakashauriana wale nini, mmoja wao aliyeenda kwa jina la Whetmore, alipendekeza warushe dice, za bahati na sibu kwa kupiga kura itakae mwangukiwa ndio aliwe.

Yale makubaliano yakapitishwa kwa wote na kukubali. Kabla haijaanza kurushwa, jamaa aliyependekeza ilo akataka ajitoe maana akawa hataki tena kushiriki, ila wenzake wakakataa kuwa anavunja makubaliano yao kwanini.

Mchezo ukaendelea na kwa bahati mbaya kura ikamwangukia yule aliyependekeza na baadae akataka kujitoa. Baada ya kumuangukia kura wakamuhoji kama ana pingamizi juu ya uchaguzi huo akasema hana, hivyo akaliwa na idadi ikabaki ya watu wanne.

Walipofanikiwa kuokolewa walikutwa watu wanne tu na mmoja keshaliwa, hivyo wakashtakiwa kwa kesi ya ,mauaji baada ya kupata ushaidi wa kutosha kuwa wamemuua mwenzao.

Sheria ya nchi yao ilikuwa inakataza mauaji, na inasema, yeyote kwa kukusudia akiua ni kosa na anahukumiwa kufa kwa kunyongwa

Kesi ilipelekwa mahakamani, na wakaukumiwa kuuwaa, walikata rufaa kwa kupinga ukumu iliyotolewa na mahakama iliyotoa hukumu kuhusu hukumu hiyo.

Kwenye rufaa kesi hii walikaa majaji watano na kila mmoja akitoa maamuzi pingamizi juu mwenzake, mwingine akisema wana hatia maana sheria ya nchi iko wazi, wengine wakisema sheria iko kwa ajili ya watu hivyo inabidi iangalie watu wanahitaji nini ili watatuliwe, wengine wakasema sheria inabidi ifanyiwe marekebisho kwa kuangalia hali halisi ya kitu kilivyotokea.

Kuna mwingine akasema ingalie na maadili na kusema kwambwa kule walipokuwa kipindindi wanafanya kosa ni walijitenga na jamii hivyo makubaliano yao ni mkataba tosha wa kufikia maamuzi hivyo sheria hii haiwahusu.

wakazidi kuongea kuwa wakati wa uokoaji watu kumi walikufa iweje tena waue hawa watuhumiwa kwa ajili ya mauaji ya mtu mmoja ili wao wapate kuishi, hivyo ilipelekea jaji mwingine kujitoa kwenye kesi.

Baada ya maelezo hayo mafupi, wee kama muamuzi, hata kama si mwana sheria ni mtu wa kawaida unatatuaje hii case, ungeruhusu wanyongwe au wapewe adhabu gani?