“The main argument for the appellants is that even if it was proved that one of them killed the deceased by manual strangulation the evidence does not show which of them it was and the circumstances are not such that they can all be held guilty for the act of one. In convicting the appellants the judge referred to Section 8 of the Criminal Code, which provides that- “When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of that purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.” In our view Section 8 of the Criminal Code was rightly applied in this case. In R. v. Ofor and Ofor (1955), 15 W.A.C.A. 4, on which the appellants chiefly rely, the evidence was open to the construction that the two accused persons formed an intention to kill independently of one another and that they had no “common intention to prosecute an unlawful purpose in conjunction with one another”. In the present case the 1st appellant called on the others to join with him in attacking the deceased and his companions and it was in response to that call that they did so. They had manifestly a common intention to act in conjunction with one another in committing an assault. Where a number of persons join in an unlawful assault it is a question of fact in every case whether the death of the person assaulted is a probable consequence of that particular assault.”
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