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S. v. MELINDA.

(APPELLATE DIVISION.)

1970.	December 1, 14. JANSEN, J.A., DE VILLIERS, A.J.A., and MULLER. A.J.A.

Criminal law.-Murder.-Sentence.-Sentence of death.-Deceased strangled but death not ensuing.-Thereafter strangled by only one of the ,accused.--Another accused sentenced to death in spite of ex­tenuating circumstances.

AppelIant (accused No. 2) and other accused had broken into ,the premises of a bakery and had entered it with intent to steal. They had had, however, to get rid of the night watchman. Appellant and accused No. 3 had attacked the night watchman, dragged him into the premises and bound him. When he came round the appellant and accused No. 3 held him while accused No. 1 strangled him with a scarf. Death however did not ensue and when the watchman again recovered for the second time accused No. 1 alone assaulted him and strangled him to death. The case against No. 1 was post­poned---he was not present. Appellant and accused No. 3 were found guilty of murder and the. appellant was sentenced to death. He alone appealed, but only against the death sentence, with the leave of the trial Court.
Held, that the appellant had rightly been convicted of murder by dolus eventualis despite the fact that he had not assisted in the final act of strangulation.
Held, further, although the trial Court had found extenuating circumstances, that the Court would not interfere with the sentence in that it had not been shown that the trial Court had not exercised its discretion in a judicial man­ner. (MULLER, A.I.A., dissented).

Appeal against a sentence passed in the Eastern Cape Division. (CLOETE J.) Facts of no importance have been omitted.
A. P. Beckley, for the appellant, at the request of the Court: The purpose of appellant and his friends was• not to commit murder but merely to rob. In the light thereof, as well as the part played by appel­lant in the activities, he was convicted of murder based on dolus even­tualis. This point was not considered by the Trial Court either at convic-

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tion or when sentence was imposed. In the light of the fact that dolus eventualis was not considered as a mitigating factor by the Trial Court,

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