JUDGMENT OF EDWARD WIREDU J.
The indictment preferred against the accused person accuses him of the offence of attempting to cause harm by the use of an offensive weapon, contrary to sections 18 (1) and 70 of the Criminal Code, 1960 (Act 29).
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The prosecution's case in support of the offence as presented by the first prosecution witness and the second prosecution witness, the material prosecution witnesses, reveals that on the night of 27 March 1970, the accused with a loaded double-barrel gun, exhibit A, went to the house of the first prosecution witness who was conversing with the second prosecution witness in a room and shot at the first prosecution witness, but the gun did not fire. As a result of a struggle which later followed the unsuccessful attempt, both the first and second prosecution witnesses over powered the accused and seized exhibit A from him. Both the first and second prosecution witnesses testified further that:
(a) when the accused pointed exhibit A at the first prosecution witness, he asked the second prosecution witness to clear the way to enable him kill the first prosecution witness;
(b) the accused actually pulled the trigger and they both heard the noise made by the trigger when it was pulled;
(c) exhibits B and B2 were the cartridges they found in the chambers of exhibit A;
(d) exhibit B showed a dent at one end indicating the impact made by the trigger on it when it was pulled.
At the close of the prosecution case, I felt that this was a clear case of attempted murder. I therefore invited learned state attorney to address me on whether it was open to me to call on the accused to open his defence in view of the variation between the evidence and the offence charged. I explained that in view of the expressed intention of the accused to kill the first prosecution witness as testified by the prosecution witnesses, I was of the view that it was a proper case of attempted murder, but that as the accused stood charged with another offence I was entertaining some doubt on what offence to call on the accused to answer. I further invited learned state attorney to satisfy me whether I could call on the accused to answer for a higher offence where he had been charged with a lesser offence. When inviting learned state attorney on the second issue I had in mind the fact that both attempted murder and causing harm by the use of offensive weapon are first degree felonies. In other words, the degree of seriousness of the two off
