KRUBOR ZUMO PEWUE, Appellant, v. REPUBLIC OF LIBERIA, Appellee.
APPEAL FROM THE CIRCUIT COURT FOR THE TENTH JUDICIAL CIRCUIT, LOFA COUNTY.
Heard March 22, 1988. Decided July 29, 1988
1. The identification of the signature of the author of a document does not necessarily require the writer himself, but anyone who has corresponded or transacted business with the person or who is acquainted with the handwriting of the person can identify his handwriting or signature.
2. A trial judge does not commit error in allowing a witness to testify only to the genuineness of the signature of the writer of a document.
3. Where a defendant denies killing the decedent, it becomes incumbent upon the prosecution to establish at least the cause of death by producing the doctor who examined the decedent to testify as to the cause of death and to explain the contents of the medical report prepared by him.
4. Before a judgment in a murder case can be upheld, his responsibility for the death of the decedent must have been proved by the prosecution beyond a reasonable doubt.
5. Although the State may have established the first part required in a murder case, that is, the corpus delicti or death of the decedent, it is also incumbent upon it to prove the second part, which is to connect the defendant to the criminal agency, the death of the victim. A conviction in which these elements are missing is a palpable misapplication of the law.
6. Every person charged with the commission of a criminal offense is presumed to be innocent until the contrary is established. in other words, the burden of proof rests upon he who maintains the affirmative. The burden may shift, however, where the accused attempts to justify his act.
7. While it may be true from the circumstantial evidence in a case, that the eye of suspicion naturally follows the accused, yet suspicion is not proof; the prosecution just prove with legal certainty and beyond all reasonable doubt, the charge levied against the accused, as required by law.
8. The law refuses to convict, especially in the case of the highest and most heinous crimes, whenever a reasonable doubt as to the guilt of the prisoner arises.
9. Where a witness is called upon to testify only with respect to identifying the signature on a written instrument, he must be qualified and competent to testify to the contents of the instrument.
10. The best evidence which a case admits must always be produced, that is, no evidence is sufficient which supposes the existence of better evidence.
Appellant was charged, indicted, tried and conviction of the murder of one Korwah Saysay. The indictment charged that after the appellant, the decedent and others had consumed a certain quantity of palm wine, the remaining had been left in the care of the decedent; that some of the palm had been removed, which act the could not explain; that the decedent had accused that appellant of stealing the palm wine, which accusation had caused the development of a scuffle between the appellant and the decedent; that although the fight was broken up the others, the appellant later went to the decedent premises where a second fight occurred, resulting in the appellant killing the decedent.
The appellant denied killing the decedent, but witnesses for the prosecution testified that they had been informed by the appellant that he was responsible for the death of the decedent. No eye witness testified ton having witnessed the second fight which allegedly resulted in the death of the decedent, and the doctor who performed the autopsy and certified the cause of death did not appear to testify as to the cause of death. Instead, the prosecution produced a magistrate who testified only as to the signature of the medical doctor who prepared the report on the cause of death.
The jury found the appellant guilty of murder, and in a judgment handed down confirming the verdict, the trial court sentenced the appellant to death. On appeal to the Supreme Court, the judgment was reversed. The Court held that the prosecution had failed to meet the required burden of proof standard, noting that none of the witnesses for the prosecution had testified to seeing the second fight in which the decedent was alleged to have been killed by the appellant; that all of the testimonies given by the witnesses were hearsay evidence, having allegedly been made by the appellant to them, but which the appellant had denied at the trial. This evidence, the Court opined, was not probative to warrant affirming the judgment of the trial court. The Court noted especially that in the face of this denial by the appellant, it was incumbent upon the prosecution to at least establish the cause of death by the production of the medical doctor who had determined the cause of death of the decedent. That evidence, the Court observed, was never produced. The identification of the doctor’s signature by a person, other than the doctor himself, was insufficient to meet the burden of proof required of the prosecution. The best evidence which a case admits, it said, must always be produced, and that no evidence was sufficient which presupposed the existence of better evidence. The Court therefore concluded that as the doctor who had performed the autopsy and determined the cause of death had not appeared in court to testify as to the cause of death, the burden of proof required of the prosecution had not been met.
The Court observed that under the law, a defendant is presumed innocent until proved guilty. The prosecution, although establishing the corpus delicti, that is, the death of the decedent, had failed to connect the appellant to the death, the Court said. Accordingly, the Court reversed the judgment and ordered the defendant discharged without day.
E. Wade Appleton appeared for appellant. McDonald J. Krakue, Solicitor-General of the Republic of Liberia, appeared for appellee.
MR. JUSTICE KPOMAKPOR delivered the opinion of the Court.
According to the story as told in the brief of appellee, on the 31st day of March, 1982, in the Town of Boi, Lofa County, Republic of Liberia, a group of men, including Korwah Saysay, accompanied Krubor Zumo Pewue to his palm wine tree. When they returned to town later that morning, a misunderstanding developed between Pewue and Saysay. This incident eventuated in a fight which allegedly resulted in the death of the decedent. The records reveal that on the afore mentioned date and at the aforesaid place, Krubor Zumo Pewue, defendant in the court below, now appellant, and Korwah Saysay, along with some other friends, decided to go to appellant’s palm wine tree for the usual morning drinking spree. After the men had had enough of the wine, they collected the leftover and gave it to Korwah Saysay for safekeeping. In the old days, and to some extent even today, men went “under the palm wine tree” for more than just wining or frolicking; they also went there to find out what was going on around them. It was the place where they discussed and obtained information on just about everything. It was there that Saysay was given the leftover palm wine to keep. Later when the men called on Saysay and demanded him to produce the wine, they discovered that Pewue, the appellant and owner of the tree, had gone behind them and had surreptitiously taken and drunk the remainder of the wine. Saysay condemned this act of Pewue, since the group would certainly now lose confidence in him. Of course, Pewue was so enraged for being questioned about his own wine that he said to Saysay, “I don’t blame you; I blame myself for leaving my tree (palm wine) with you when I am gone out of town; during the time I was away, you emptied my wine into your ‘damn stomach.”‘ This remark indeed infuriated Saysay and a scuffle ensued. However, their friends broke it up immediately by separating them. Saysay then retreated to his house, but appellant Pewue followed him. There they allegedly fought again, this time with nobody around to separate them, The other men who later left the town and went into the bush to perform their daily assignments returned at night, and, according to them, they neither went around the town nor inquired as to what had happened curing the day while they were away.
The next morning, to the astonishment of all the people of Boi town, the body of Korwah Saysay was discovered outside his residence. Everybody in the town who came around was alarmed. The defendant, who was the obvious suspect, was absent. The authorities found him later and brought him to the scene. He is said to have admitted at the time to having had a second fight with the decedent which resulted in the latter’s death. Although at the scene the defendant denied engaging in a second fight, or, for that matter, being responsible for the death of the decedent, he was however carried to the County Commissioner and later to the Magistrate of the City of Zorzor, Lofa County, for a preliminary investigation. During the investigation, appellant allegedly admitted to killing Saysay. The indictment stated that during the fight, the appellant beat Korwah Saysay, the decedent, and broke two of his rib bones, burst his left eye and one of his testicles, and cut him on the mouth, thereby inflicting fatal and mortal wounds in and upon the body of the decedent, and from which serious injuries Korwah Saysay died.
The defendant was arrested, indicted, arraigned and tried for murder. The indictment alleged malice aforethought or deliberation in the conduct of the accused, which resulted in the death of decedent.
We hereby quote the indictment for the benefit of this opinion:
“INDICTMENT
THE GRAND JURORS, GOOD AND LAWFUL MEN AND WOMEN, of the County of Lofa, Republic of Liberia, being duly selected, sworn ana empanelled to inquire in and for the County of Lofa, and in the name and by the authority of the Government of the Republic of Liberia, upon their oaths do present: That Krubo Zumo Pewu, defendant, of Boi Town, Zorzor District, Lofa County and Republic aforesaid, and within the jurisdiction of this Honourable Court, in violation of Title 27, Section 232 of the Penal Law, Sub-section (1), Volume III, of the Liberian Code of Laws of 1956, Pages 968 & 969, relevant portions which reads thus:
MURDER: “Any person who, without legal justification of excuse, unlawfully with malice aforethought, kills any human being …is guilty of murder and punishable with death by hanging”.
The grand jurors do say that previous to the finding of this indictment, on March 31st. A. D. 1982, Krubo Zumo Pewu, defendant, of Boi Town, Zorzor District, Lofa County and Republic of Liberia, joined Korwah Saysay, decedent, and other folks, all of Boi Town, Zorzor District, County and Republic aforesaid, who all walked into the bush to drink palm wine and thereafter they all returned to town (Boi Town), during which time Krubozumo Pewu, defendant aforesaid, and Korwah Saysay (decedent), got into a quarrel which later resulted in a fight and they were parted by Forkpayea Kawala and Kolubah Yankoi and when the said Forkpayea Kawala and Kolubah Yankoi left to their farms, defendant returned to decedent, Korwah Saysay, and then and there, being not having the fear of (God) before his (defendant’s) eyes, but being a man of wicked and malignant mind, without any legal justification or excuse whatsoever, with malice aforethought and having total disregard for the safety of human life, and without any color of right for the safety of human life and without any color of right, unlawfully, wickedly, intentionally, feloniously, maliciously and with premeditated mind, unmercifully beat Korwah Saysay, decedent aforesaid, and broke two of his rib bones, burst his left eye, burst one of his testicles, and cut him on the mouth, thereby inflicting fatal and mortal wounds in and upon the body of decedent Korwah Saysay, from which serious wounds and injuries decedent, Korwah Saysay, did bleed, scuffle and being not able to endure the terrible pains and agony caused him (decedent) Korwah Saysay did languish for a while and in the peace of God and of this Republic did die shortly thereafter; then and there the crime of MURDER the aforesaid defendant did do and commit, contrary to the form, force and effect of the statute laws of Liberia, in such cases mace and provided and against the peace and dignity of this Republic.
AND SO, the Grand Jurors aforesaid, upon their oaths aforesaid, so say that Krubo Zumo Pewu, defendant aforesaid, at the time and place aforesaid, in the manner and form, aforesaid the crime of MURDER, the aforesaid defendant did do and commit, contrary to the form, force and effect of the statute laws of Liberia, in such cases made and provided, and against the peace and dignity of this Republic.
RESPECTFULLY SUBMITTED
REPUBLIC OF LIBERIA, ….PLAINTIFF
BY:
/S/ Jallah K. Faciann, Sr.
/T Jallah K. Faciann, Sr.
COUNTY ATTORNEY – LOFA COUNTY”
The defendant was tried, as aforesaid, and the jury returned a verdict of guilty. Final judgment was thereupon rendered against him in keeping with the verdict. As a result of an appeal taken by the appellant, the case is before us for review.
The essence of the testimonies of the witnesses of the prosecution is that they were told by the appellant himself that after the first scuffle between him and the decedent, which some of them promptly broke up, a second fight was has by the two men. According to them, the appellant admitted voluntarily that he beat the decedent until the latter died. But, without any exception, none of those witnesses either saw the second fight or the decedent being beating to death. Of interest to us is count 2 of the bill of exceptions filed by the defense, in which the defendant charged that the trial judge committee. a reversible error when he overruled defendant’s objection to the admission into evidence of a medical certificate, marked by the court as p/4. The objection stemmed from the fact that Dr. Korathu Alexander who examined the body and prepared and signed the said medical certificate never appeared to testify to the document; rather, it was a stipendiary magistrate who came to the stand and, over objection of the defense, identified the signature of the doctor.
The indictment alleged that on the 31st day of March, A. D. 1982, in the town of Boi, Lofa County, Republic of Liberia, a fight took place between defendant and decedent. Although these facts were not in controversy, many questions remained unanswered, because no one witnessed the fight which allegedly took place in a house. What the records reveal is that the body of decedent was discovered outside his residence on the next day, and that the two men (appellant and decedent) had earlier fought over an issue involving palm wine. The indictment alleged that there was a second fight and that as a result of the alleged second fight, the decedent sustained two broken ribs, a completely damaged left eye, one missing testicle, a cut on the mouth and other serious wounds, from which he die.
One thing which made this case and the attending trial in the court below very peculiar and unconventional is the fact that although an application was made to the trial court by the prosecution for a subpoena to be served upon the doctor who had examined the body of the decedent and who had written a certificate concerning the cause of death of the decedent, to have him appear and testify, and the said application was granted by the court, the doctor failed to appear. We resort to the minutes of the trial court and quote some relevant excerpts therefrom relating to this point. On Friday, November 12, 1982, the 4th day’s session, November Term, A. D. 1982, at sheet 22 of the minutes, the prosecution is shown to have made the following record:
“At this stage, except the doctor who performed the autopsy and whose testimony is greatly needed during this investigation, the prosecution thus far is satisfied with the testimonies of all his witnesses that have testified before this Court. We have made every effort to get the doctor from Zorzor only to be told that he is due here shortly from Monrovia; we forwarded a telegram that any two senior members from this office could serve the purpose were the doctor not to come today. To this telegram, up until the making of this submission, we have not been able to get a response, hopefully in the morning. And submit.” (Emphases added). The trial judge suspended the hearing of the case until the next day. While we do not doubt the fact that the prosecution made these efforts, the records certified to us do not contain a copy of the telegram mentioned in the submission.
On Saturday, November 13, 1982, the 5th day’s jury session, November Term, A. D. 1982, at sheet 4 of the minutes, the case was called. The prosecuting attorney informed the court and the defense of a message he received from the current Lutheran Hospital, apparently regarding the need for the medical doctor to appear and testify. He continued: “your humble County Attorney has placed the office of the Clerk of this Court into action and a writ of subpoena has been issued and has been sent to the Tellewoyan Memorial Hospital on the Medical Director, Dr. Rama Moothy or his assistant, to appear as a special witness to testify in this case. The counsel is therefore respectfully requesting the court for a temporary suspension of the hearing of this case and to resume same as soon as the sheriff returns can indicate service of the subpoena.”
The judge granted this request and suspended the hearing. When the hearing of the case resumed on Monday, November 15, 1982, as shown by the minutes of court, 6th day’s jury session, November Term, A. D. 1982, sheet 2, the following record was again made:
“At this stage, the prosecution begs to inform the court that witness Henry G. Washington is a .special witness merely to identify the signature of Doctor Korathu Alexander and he is to testify on the general aspect of what transpired in his office as preliminary (sic) magistrate in these proceedings and submit.” (Emphases ours).
The defense resisted this application in the following manner:
“Defense respectfully submits that the application just made by the prosecution is ambiguous, in that he is saying that the witness for the prosecution is invited to testify as a special witness and further states that the witness should testify on the general aspect on the offense charged against the defendant and further identify the signature of the Medical Doctor, but he has not laid a premise. In view of the ambiguity of the said application, defense objects. And respectfully submits.”
In denying the application of the prosecution, the judge said:
“It is impracticable for a witness to be both general and special, since neither a special witness can be cross-examined on the general question nor a general witness can be questioned on a special question. Under these circumstances, the application of the prosecution is hereby denied.”
Regarding the signature of the writer, the witness testified that the signature appearing on the medical report or certificate was that of Dr. Korathu Alexander.
This is the evidence of the prosecution upon which they rested the case for the State.
The accused, the only witness for the defense, testified for himself. Here is what he said:
“On the 31st of March, 1982, about 9:00 a.m., Kowah Sayzay and myself had little misunderstanding which resulted to pushing each other. And we were parted. And I left and went on the farm. The next morning around about 7:30, I was lying down in the room when I saw a group of people enter. They held me by my hand. We came in Piassa; they took my shirt from me, sat me down, tied me. They took me to Kowah’s place; they took my clothes covered the body with it (deceased). From there, the town chief came with a foot cuff and foot cuffed my feet.
He left me and went to Zorzor to the County Commissioner. He came back and they took me to the Commissioner. When he came, he lose my feet and carried me, put me in bar. We went to Zorzor to the Commissioner.
He asked me, you and anybody made palaver? I said yes. He asked who is he? I said yes, Kowah Sayzay. He said, the people say you and him fought and he died, so what do you have to say? I told him no; yesterday; after we had the misunderstanding, he pushed me and I pushed him; we were parted by those present on the spot; and we went back. He looked into the case, he said if that is how it happened, I will release you. The people of the town said no. We went back to Zorzor along with the witnesses anti we were sent to jail for five days. When Magistrate Henry G. Washington came, we went before him. He asked me, I said no. CID Agent himself, I did not tell him that I was the one who killed Kowah Sayzay; and also the other witnesses who testified that I told them that I was the one who killed the man. From there, we all were sent to Voinjama prison.
After three months, the witnesses that came along with me were released by the County Attorney. That’s all I know. I rest.”
It is quite interesting to note that in the case at bar, Magistrate Washington was cited as a witness to testify for the prosecution, not as to the cause of death, or the contents of the medical report, but as to whether the signature which appeared on the document was the genuine signature of the attending physician. The defense objected to the procedure, but he was overruled by the trial judge.
In the case Nebo v. Republic, [1981] LRSC 32; 29 LLR 326 (1981), decided on July 31, 1981, during the March Term, A. D. 1981, Chuck Nebo, the defendant therein, was indicted for the crime of Murder in the County of Nimba, having been accused of assaulting the body of the decedent, brutalizing her with a belt, and punching her in the mouth. The indictment in that case alleged that as a result of the unlawful violent act of the defendant, the decedent, Rose Peabody, received mortal wounds, subdural haematomas, bruised internal surface or scalp, lacerations of the left upper and lower extremities, and brain injury, as a result of which she died. The case was tried and the jury brought a verdict of “guilty” against the defendant. The trial court affirmed the verdict and the defendant appeal to this Court of dernier resort.
The thrust of appellant’s contention in that case, as in the instant case, was that the doctor who saw the body of the decedent at the hospital, or the pathologist who performed the autopsy, should have appeared at the trial to establish the cause of death.
In the Nebo case, there was an autopsy report which was testifies to and marked by court, but was excluded from the evidence. In the instant case, however, there was a medical report by the doctor who examined the body of the deceased. It was marked by the court and admitted into evidence. At the request of the prosecution, the doctor was subpoenaed to appear and testify as to the contents of the report or certificate. The records are silent as to the returns made by the sheriff, if any was made, as to why the doctor could not appear.
This Court held in the Nebo case, where the trial court had denied the admission into evidence of an autopsy report on the ground that the doctors had failed to appear to authenticate their signatures or show any legal reason why they could not come, that the trial court committed an error when it denied admission into evidence of the document on that ground. The Court, citing the Civil Procedure Law, Rev. Code 1: 25.17, reasoned that the identification of the signature of the author of a document “does not necessarily require the writer himself, but anyone who has corresponded or transacted business with the person or who is acquainted with the handwriting of the person can identify his writing or signature.” We are of the opinion, therefore, that the trial judge did not commit any error when he allowed the prosecution witness to testify only as to the genuineness of the signature of Dr. Alexander. Whether or not such a witness may testify to the contents of the document, and whether or not the prosecution established the cause of death by the testimonies of this witness will be discussed later in this opinion.
The magistrate testified only as to the signature of the doctor. That he could do; but he did not and could not testify to the cause of death. Besides this fact, not a single witness saw the alleged second fight and no weapon or weapons were reported seen in the room where the second fight was alleged to have taken place.
We note that the story told by the accuse while on the witness stand is a complete denial of what the prosecution attempted to establish; he denied either killing the decedent or telling any of the witnesses for the prosecution that he killed the decedent. Although almost all of the witnesses for the prosecution testified that the accused had confessed to the killing, done by him beating the decedent to death, none of them testified to seeing the alleged fight or to seeing the decedent alive after the alleged fight.
Since the defendant categorically denied killing the decedent, we feel that under the circumstances it was incumbent upon the prosecution to have established at least the cause of death by producing the doctor to testify to this effect. While a medical report of the examination of the body was put in evidence, the doctor allegedly cited did not appear to explain the contents in the doctor’s report.
In the case Banjoe v. Republic, [1977] LRSC 48; 26 LLR 255 (1977), text at 261, this Court held, quoting from 2 Underhill Criminal Evidence 796 (5th ed. 1956), as follows:
“‘The cause of death of a person is considered so within the range of scientific knowledge that medical expert testimony is admissible as to such cause; or as to the different ways in which the death might have been caused, that death did or did not result from a given wound or injury, which of several bullet wounds was the most fatal where a person died after being shot several times, or how long a person has been dead.”
The holding of the Supreme Court in the Banjoe case, supra, was that before a judgment against the appellant in a murder case can be upheld, his responsibility for the death of the decedent must have been proved by the prosecution beyond a reasonable doubt.
Once again, we must reiterate here that the evidence given by all of the witnesses, which tended to link the defendant to the crime charged was, without exception, based on hearsay, or not of their own certain knowledge. Witnesses Gayflor Peko, Mawa Zubah, Korlubah Yanquoi, Forkpayea Kawala, Lt. Stephen Kawalawu and others, testified essentially that the defendant had told them that he and the decedent had a second fight in their absence, and that it was during this fight that he beat the decedent until he, the defendant, killed him. This evidence, produced by the prosecution to prove its case, is not probative to warrant confirmation of the trial court’s final judgment. From a careful study of the evidence, this Court is of the opinion that while the State did clearly establish the first part of the corpus delicti, the fact that Korwah Saysay did die, it was also incumbent upon the State to prove the second part, that is, to connect the defendant to the criminal agency, the death of the victim. See Seton v. Republic, [1972] LRSC 17; 21 LLR 133 (1972).
We hold therefore that there was a palpable misapplication of the law to the evidence considered as a whole. Under our system of justice, every one charged by the State with a criminal offense is presumed to be innocent until the contrary is established. In other words, the rule is that the onus probandi, or burden of proof, rests upon him who maintains the affirmative. Under this rule, the burden may shift, as where, for example, the accused attempts to justify his act. It is clear, however, from the facts and circumstances in the case at bar, that this case does not fall within this exception to the general rule.
In the case Berrian v. Republic, [1916] LRSC 16; 2 LLR 258 (1916), at 264, this Court held that:
“While it is obvious, from the circumstantial evidence in the case, that the eye of suspicion naturally followed the accused, yet suspicion is not proof; the prosecution did not, we hold, prove the charge with that legal certainty and beyond a rational doubt as the law demands. So careful is the law in deciding upon the guilt of one accused of homicide in deciding whether a man is guilty of the commission of that highest and most heinous of all crimes, that it refuses to convict whenever a reasonable doubt as to the guilt of the prisoner arises. ‘It is better,’ said Judge Sir Mathew Hale on one occasion, ‘for ten guilty persons to go unpunished than that one innocent person should be punished’; and this theory has been upheld by the Supreme Court of this country for more than half a century as a safe and sound rule for the observance of criminal tribunals.’ This is still the cardinal rule today under our scheme of justice.
Finally, in the case, Freeman v. Republic, [1944] LRSC 2; 8 LLR 187 (1944), this Court laid down the principle that where a witness is called upon to testify only with respect to identifying the signature on a written instrument, he must be qualified and competent to testify to its contents. The question that comes to one’s mind is, why didn’t a colleague of Dr. Alexander pome to testify to the contents of the medical report, if Dr. Alexander himself was not available? As for the prosecution, it felt that applying for the subpoena for the doctor to appear and testify was all it had to do. As we have said earlier, the records certified to us is silent as to what happened after the request for the subpoena was made and granted by the court. Our Civil Procedure Law makes it mandatory that the best evidence which the case admits of must always be produced; that is, no evidence is sufficient which supposes the existence of better evidence. See Civil Procedure Law, Rev. Code 1: 25.6 (1) .
In view of the circumstances surrounding this case and the authorities cited, we do not feel that the evidence in this case is sufficiently conclusive to warrant confirmation of the sentence of death passed upon the appellant in the court below. We are of the considered opinion, on the contrary, that there is sufficient doubt as to what actually caused the death of the decedent. The judgment of the trial court is therefore reversed, and the appellant is hereby discharged without a day. And it is so ordered.
Judgment reversed.