Introduction
The doctrine of transferred intent or malice is another nuance of criminal intent. Transferred intent occurs where one intends the harm that is actually caused, but the injury occurs to a different victim or object. To illustrate, the law allows prosecution where the defendant intends to burn one house but actually burns another instead. The concept of transferred intent applies to homicide, battery, and Arson.
In other words, transferred malice refers to the cases where the offender intends to harm one victim but instead harm another. In such cases the offender is held, responsible for his or her act though his or her intended victims was not injured, but transferring the malice he had towards the intended victim to the actual victim who suffer harm. This transfer is not made if the intent was not to accomplish similar harm, for example intent to assault does not transfer to the breaking of a window by throwing a rock intended to injure the victim.
The concept of transferred malice is enshrined under section 200 of the Penal code. Under this section it doesn’t matter who is the person killed provides an intention to kill is present. In other words, we have what is called transferred malice in this section.
As firstly held in the case of R v Latmer, a defendant will still be liable if he or she has the necessary mens rea to commit a particular crime and he or she actually executes an actus reus on a different victim, by mistake or otherwise, other than the one intentionally targeted. However, if a defendant has a requisite mens rea for a particular offence but by mistake he executes a different actus reus, intent or malice cannot be transferred. This was rightly espoused in the case of R v Pembliton .
The concept of transferred malice can also be seen in the following hypothetical examples or scenarios:-
Juma married Asha and they have lived together for a number of years enjoying their marriage life, but on one occasion Juma and Asha quarried as Juma was accusing his wife for having an affair with the house boy. One day Juma made up his mind and decided to kill the house boy by poisoning him, to that effect, Juma poisoned the food in the hot pot that was to be eaten by the house boy. Unfortunately, his wife came and ate such food and consequently died on spot. In this scenario Juma’s malice to kill the house boy will be transferred to the killing of his wife, despite the fact that his wife was not a target.
In another hypothetical example, Felister had an intention to kill Geofrey, having formed a requisite mens rea to kill his friend by shooting him with her two barreled gun, but by mistake she entered in her friend house and kidnap his friend and later release him. In this scenario therefore, though Felister has a requisite mens rea for a particular offence but by mistake he executes a different actus reus, intent or malice cannot be transferred.
