MADAM ELIZABETH DAVIES, Appellant, v. THE REPUBLIC OF LIBERIA, Appellee.

APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT FOR THE FIRST JUDICIAL CIRCUIT, CRIMINAL ASSIZES, MONTSERRADO COUNTY.

Heard: November 15. 2001. Decided: December 20, 2001.

1. A person is guilty of theft if he knowingly takes, misappropriates, converts or exercises unauthorized control over, or makes an unauthorized transfer of interest in the property of another with the purpose of depriving the owner thereof.

2. A person is also guilty of theft if he knowingly obtains the property of another through deception or by threat with the purpose of’ depriving the owner thereof or purposely deprives another of his property by deception or by threat.

3. In order to convict a person in a criminal case, the prosecution must prove the guilt of the accused with such legal certainty as to exclude every reasonable hypothesis of his innocence: and all material facts essential to constitute the crime must be proved beyond a reasonable doubt. Otherwise, the accused will be entitled to a discharge.

4. Every person alleging a fact must prove it.

5. The allegations of a party cannot be taken as evidence, but must be proved.

6. The burden of proof remains with the prosecution throughout the trial of a criminal case.

7. The inability of a bailee to account for money or any other article of value entrusted to his care violates the confidence which the owner reposed in him and he is therefore answerable to the owner and to society.

8. In order to constitute theft under the penal law, the taking or retention of property of another must be intentional, fraudulent, and felonious, and the ensuing circumstances in each case will determine whether or not the crime has been committed.

9. The evidence in a criminal case against an accused must be conclusive, and if it be circumstantial it should be so connected as to positively connect one element within another for a chain of evidence sufficient to lead the mind irresistibly to the conclusion that the accused is the guilty party.

10. Where the accused presents proof or evidence as to raise a strong doubt regarding the substance of the prosecution’s case, the latter is under a duty to rebut such evidence or the conviction will be overturned.

11. In order for any evidence to be weighty and relied upon, especially in criminal matters, such evidence must be corroborated.

12. The uncorroborated testimony of a person accused of a crime is insufficient to acquit, especially when the evidence against him is clear and cogent.

13. The Liberian Criminal Procedure Law gives the trial court the discretion to grant or deny a motion for a change of place of the prosecution of a case.

14. Only such matters as were interposed in the trial court and which appear in the bill of exceptions can be taken cognizance of in the appellate court.

15. Issues not raised in the lower court and not presented in a proper and timely manner on appeal will not be considered by the Supreme Court.

16. Under the Criminal Procedure Law, a verdict is legal and in consonance with law if it is (a) returned in open court by a twelve man jury panel presided over by a foreman; (b) unanimous in declaring that the defendant is guilty or not guilty; (c) if it does not convict the defendant of a greater offense than that which is laid in the indictment and proven at the trial; and (d) if the jurors are polled and their unanimous concurrence recorded.

The appellant, Elizabeth Davies, appealed from a conviction of guilty and judgment rendered thereon for theft of property by the First Judicial Circuit Court, criminal Assizes. Montserrado County. The indictment charged the appellant with having converted to her use the amount of US$153,650.00, being the amount for which she could not account out of a total of US$771,042.83 delivered to her on December 24, 1998 for encashment of checks and payment of withdrawals in United States dollars. The appellant, who worked as head United States dollar teller at the International Trust Company Bank, had represented that the amount with which she was charged was paid out on three checks issued by the Ministry of Finance. The Ministry of Finance denied ever issuing the checks alleged by the appellant and there were no records to indicate that the said checks ever passed through the system of the ITC Bank. The appellant also asserted that the trial court had erred in denying her motion for a change of venue, that the prosecution had failed to prove its case, and that the verdict and judgment was against the evidence presented at the trial.

The Supreme Court disagreed, holding that under the statute the trial court had the discretion to determine whether or not to grant a change of venue and that it had seen no evidence that the judge had abused that discretion. The Court, while acknowledging that in order to obtain a conviction of an accused the prosecution must prove his or her guilt beyond a reasonable doubt, opined that the prosecution had met that burden and had proved that the appellant was guilty of the crime of property theft. The Court therefore affirmed the judgment of the trial court but with the modification that the judgments not only include restitution of the amount which the appellant was convicted of stealing, but also the imposition of a sentence of three years imprisonment in the common jail.

Elijah F. Cheapoo appeared for the appellant. The Ministry of Justice, by and thru A. Wallace Octavius Obey, Solicitor General, and Sikijipo A. Wollor, Assistant County Attorney for Montserrado County, and in association with the Sherman and Sherman Law Firm, by and thru Emmanuel S. Koroma, appeared for the appellee.

MR. JUSTICE MORRIS delivered the opinion of the Court.

On the 23rd day of March, A. D. 1999, Elizabeth Davies, the appellant herein, and defendant in the court below, was indicted for the commission of the crime of theft of property by the First Judicial Circuit Court, Criminal Assizes “A”. Montserrado County, sitting in its February 1999 Term. The indictment alleged, among other things, as follows:

“The Grand Jurors for the County of Montserrado, Republic of Liberia, upon their oath do present: that Elizabeth Davies, defendant, of the City of Monrovia, County and Republic aforesaid, heretofore to wit:

That in violation of chapter 15, section 15.5 1(a) and (b) of the New Penal Law of Liberia, which states:

Theft of property: A person is guilty of theft if he:

a) knowingly takes, misappropriates, converts or exer-cises unauthorized control over or make unauthorized transfer of interest in the property of another with the purpose of depriving the owner thereof; and

b) Knowingly obtains the property of another by deception or by threat with the purpose of depriving the owner thereof or purposely deprives another of his property by deception or by threat.

1. That on the 24th day of December, 1998 (Christmas Eve), Elizabeth Davies, defendant, then serving as head teller of the International Trust Company Bank, responsible for receiving checks drawn in United States dollars on said International Trust Company Bank and paying the face value of said checks, did receive from two other employees of the bank, in persons of Allan Scholar, Vice President and Alice Roberts, Assistant Treasurer/Supervisor in the foreign exchange department of the ITC Bank, the sum of US$505,423.91 which had been taken from the vault of the ITC Bank and given to the defendant, Elizabeth Davies, to be used to encash United States dollar checks drawn by customers of the said bank and presented for encashment on said 24th day of December 1998; and as evidenced by the receipt of the said US$505,423.91, the defendant aforesaid did sign the appropriate official instrument of the ITC bank.

2. Also, considering that on the said December 24, 1998, like every other Christmas eve previous thereto falling on a banking day, was a very busy day, and considering that many, many checks in United States dollars were presented for encashment, in order to provide additional funds to the said Elizabeth Davies, defendant, to encash the checks drawn in United States dollars on the ITC Bank, two additional amounts of US$165,854.67 and US$99,764.25 were also delivered by the assistant treasurer/supervisor of the foreign exchange department of the ITC Bank to the said Elizabeth Davies, defendant; the receipt of which two separate amounts were acknowledged by the said Elizabeth Davies, defendant, on the official instrument of the ITC Bank for that purpose.

3. That therefore on this fateful 24th day of December 1998 a total of US$771,042.83 was given by the bank to be used by the said Elizabeth Davies, defendant, to encash checks in United States dollars drawn on the ITC Bank on the said December 24, 1998.

4. That the procedure for encashment of any United States dollar check at the ITC Bank is that the check must go to the reference department of the ITC for the following reasons:

to verify that the signatures are correct; to determine whether the balance in the account is sufficient to cover the check; to determine whether the date on the check is stale or whether the check is post dated; and to determine whether the amount of the check in writing corresponds with the amount in figures. In addition to these checks and balances for any check drawn on the ITC Bank drawn by the Ministry of Finance, an accompanying release letter must be sent from the Ministry of Finance to the ITC Bank for encashment on the Government of Liberia’s accounts.

5. At the end of the day’s work at the ITC Bank on that fateful date of 24th December 1998, it was not possible to complete the checking of all transactions, and the following day being Christmas day, and the next day being Saturday, and then thereafter Sunday. It was not until Monday, December 28, 1998 that the work done on the 24th of December 1998 was thoroughly checked and completed.

6. And so on Monday, December 28, 1998, it was conclusively discovered that there was a shortage in the cash of December 24, 1998 from Elizabeth Davies, defendant, in her capacity as head teller, disbursing United States dollar daily cash transaction report, submitted by the said Elizabeth Davies, defendant, and it was conclusively established that the shortage in the amount of US$153,650.00 was due to three transactions in the amounts of US$40,000, US$83,000.00, and US$30,650.00 entered on the United States dollars daily cash transaction report by the said Elizabeth Davies, defendant, as payment allegedly made to three separate persons who presented checks alleged by Elizabeth Davies, defendant, to be drawn by the Ministry of Finance on the Government of Liberia’s account.

7. That the alleged three checks for the amounts of US$83,000.00, US$40,000.00, and US$30,650.00, which the defendant aforesaid claims to have encashed, could not be found in the records of the ITC Bank; that there was no record of any such checks ever passing through the reference department of the ITC Bank; there was no release letter for any of the said checks from the Ministry of Finance; and finally the staff of the office of the Comptroller at the Ministry of Finance confirmed that no checks in such amounts were ever issued by the Ministry of Finance to anybody for encashment at the ITC Bank.

8. That, therefore, the said Elizabeth Davies, defendant, having custody of the funds of the ITC Bank. in her capacity as head teller of the foreign exchange department, on the 240 day of December, 1996, did unlawfully. feloniously, knowingly, purposely and intentionally steal and take away the aggregate sum of US$153,650.00, and made false entries on the United States dollar daily cash report for the 24th day of December, 1998, to make it appear that she had paid out three checks in the amounts of US$83,000.00, US$40,000.00, and US$30,650.00 drawn by the Ministry of Finance on the Government of Liberia’s accounts at the said ITC Bank.

9. Then and there, by virtue of the above acts of the defendant aforesaid, the crime of theft of property the defendant did do and commit, contrary to the form, force and effect of the statute law of Liberia, in such cases made and provided and against the peace and dignify of this Republic.

And so the Grand Jurors aforesaid, upon their oath aforesaid, do present: that Elizabeth Davies, defendant, at the time and place aforesaid, in the manner and form aforesaid, the crime of theft of property the 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.”

On the 9th day of December, A. D. 1999, the defense counsel filed a one count motion for change of place of prosecution. The motion was resisted by the prosecution and was subsequently denied by the trial court. Thereafter, on the 10th day of December, A. D. 1999, during the November, A. D. 1999 term of court, the appellant, after arraignment, entered a plea of not guilty, thereby joining issues with the State. Predicated upon the said plea, a twelve man trial jury with three alternates was selected, sworn and empanelled to try the issues joined under the direction of the court, presided over by His Honor Timothy Z. Swope, by assignment.

During the trial, the prosecution produced a total of five (5) witnesses who gave a thorough, vivid, and graphic account of how the appellant was responsible for the encashment of United States dollar checks and how she had received the total amount of US$771,042.83.

According to the certified records transmitted to this Court, one of the witnesses for the prosecution, in the person of Mr. Alexander Andrews, who testified in favour of the State, told the trial court and jury that at the International Trust Company (ITC) he was responsible for checking the various tellers’ reports. He further testified to the fact that on the 24th day of December, A. D. 1998, the teller proof sheet for the appellant, Elizabeth Davies, and the general entry did not balance by an amount of US$153,650.00. According to his testimony, at the end of the day he found out that the appellant, Elizabeth Davies, had received from the company’s bank vault a total amount of US$771,042.83, but that the said amount differed from the amount for which an account was given, due to the three checks. He further testified that he decided to check the original entries of these checks by going to the reference section. In this section, he said, any check for encashment will have to be verified as to signatures, dates, and amounts, followed by a release letter from the Finance Ministry. But according to him, these requirements were not available in the reference section for the three checks, in the amounts of US$40,000.00, US$30,650.00, and US$83,000.00, and that they therefore could not be found. He stated also that it was on the appellant’s daily report that the checks were recorded, but that the checks could not be found or located. Mr. Andrews further testified before the court and jury that he went to the Finance Ministry to inquire as to whether the checks in question were issued by the comptroller’s office, along with the release letter. The answer was “no”. The witness said that he further checked the various departments in the bank but that the appellant could not account for the amount US$153,650.00, which was only reported in her proof sheet for that day and did not go through the banking system. Witness Andrews also said that he then informed all the managers in the bank, and that on the final analysis the CID was sent for to conduct an investigation. At the end of Witness Andrews’s testimony, he was directed by the prosecution, cross-examined by the defense counsel, questioned by the court and jurors, and discharged with thanks by the court.

The second witness for the State, in the person of Mr. Allen B. Schollar, took the stand and testified for the prosecution. In his general testimony, he told the court and jurors that on the 24th day of December, A. D. 1998, he was acting foreign exchange manager at the ITC Bank. The appellant, he said, was the United States dollar paying teller and was responsible for paying all United States dollar withdrawals. He stated to the court and jurors that the appellant had received a total sum of US$771,042.83 and that this amount was received from the vault and from the deposits of tellers #6 and #2, and that the said figure was evidenced by the debit slips and journal entries for cash received from the vault for the two tellers. The witness further testified that during the day the appellant paid out certain sums in respect of cashed checks and savings withdrawal slips. According to him, the payments were backed by several journal entries. At the end of the day’s transactions, the appellant turned over to the vault her remaining cash of US$43,527.15, which was entered on her vault cash and supported by the credit journal entries. He stated that in addition the appellant completed the vault cash form and prepared another document transaction report. Witness Schollar further testified that because the teller proof sheet did not reach the bank’s accountants until the end of the following working day, it was only then that the accountants, after double checking the figure, discovered the difference in the credit journal entries filed and signed by the appellant and the shortage in the amount of US$153,650.00, which represented the three checks in the amounts of US$83,000.00, US$40,000.00, and US$30,650.00. respectively; and that it was from the tape attached to appellant’s proof sheet that the alleged checks were identified as Government of Liberia checks. Again a search for the checks was made but it appeared to them that the checks had never gone through the system. Witness Schollar further testified that if someone wanted to encash a check, the check would be sent to the reference section for verification as to signature, correctness of figure and availability of the amount in the account. However, in the instance involving the appellant, they could not see that the mentioned checks had passed through the process. He stated that Government of Liberia checks encashment are subject to a 1% charge to cash the checks, but that they could not find any evidence at the bank that the checks had been charged the 1% encashment fees. The witness further testified that the three checks in question were entered on the teller’s United States dollar daily transaction report list of checks cashed, but that the report had been written and signed entirely by the appellant. He stated further that the appellant’s report alleged that he had approved the encashment of these checks, but that in fact that was untrue as he had never written his initials ABS as having approved the three checks for encashment. The report, he said, was entirely in the appellant’s hand writing. The witness also testified that as a final verification of doubts surrounding the alleged transactions, he called the office of the comptroller at the Ministry of Finance to ascertain if any payment authorization letter had been issued for the three checks in question, but that the answer was “no”. Therefore, the matter was turned over to higher management for investigation because the reports which were signed by the appellant had no satisfactory explanation regarding the three checks that were entered on her daily transaction report, and that thereafter the matter was referred to the Criminal Investigation Division (CID) of the Liberian National Police.

Having rested his statement in chief, Witness Schollar was directed by prosecution, cross-examined by the defense counsel, questioned by the jury and court, and discharged from the witness stand with the thanks of the court.

The third witness for the prosecution, in the person of Deddeh Lavala, testified that on a normal business day at the ITC Bank, the United States dollar paying teller would submit to the foreign exchange department all cashed checks with credit journal entries attached, along with their tapes and the cashed checks, and that the purpose for this entire exercise was to check as to whether or not the customers were charged the 1% fee against the customers’ deposits at the bank. Witness Lavala further testified that the three checks in the amount of US$153,650.00, which were included in the teller’s daily transaction reports, did not pass through the system and that they were not seen on the United States dollar tape and the appellant’s credit journal entries. Therefore, he said, the three checks did not enter the system. He added that they were not referenced and that there were no payment authorization letters to validate cashing them.

Witness Lavala was directed by prosecution and cross examined by the defense counsel and discharged from the witness stand with thanks from the court.

The fourth witness for the prosecution, in the person of David P. Gbarlah, testified that he was employed with the Government of Liberia through the Ministry of Finance, and that he served as recording clerk assigned to the Office of the Comptroller, Republic of Liberia. He further testified before the court and jury that in obedience to the subpoena duces tecum ad testificandum from the trial court, the Office of the Comptroller had sent him to the trial court with photocopies of the returned checks, bank statement, and photocopies of payment authorizations authorizing ITC Bank to disburse Government of Liberia’s funds for December 24, 1998. These documents were received by the trial court over the objection of the defense counsel, identified and testified to by the witness on the stand, and marks of identification placed thereon as P/9, P/10, and P/11, respectively. After Witness Gbarlah had concluded his statement, he was directed by prosecution, crossed examined by the defense counsel, and discharged with the thanks of the court.

The fifth witness for the prosecution, in the person of Mr. Dixon Dargbe, informed the court and jury in his general statement that on December 24, 1998, the management of ITC reported to the police CID a theft of property case involving US$153,650.00: that a team of investigators was constituted by the CID; and that they proceeded to the ITC Bank and started investigating the appellant who told them that on that day she had reported to work as head teller of the foreign exchange account. She further explained to the investigators that she had received the amount in question for the normal business transaction and that during the course of the day she had disbursed the sum in question, being the value of the three checks in the amounts of US$83,000.00, US$40,000.00, and US$30,650.00, respectively. Witness Dargbe further narrated that the appellant could not show them the checks or say what had happened to the said checks. He stated that the investigators wanted to authenticate whether the three checks were paid and therefore they asked the appellant if she knew the source of the three checks that she had allegedly charged. She informed them that the three checks in question were authorized by the Ministry of Finance. However, all efforts to trace the letter(s) of authorization authorizing the payment of the three checks by the Ministry of Finance proved futile as there was no such letter in the bank. Witness Dargbe further told the court and jury that the investigators, not being satisfied with the appellant’s explanation concerning the three checks, proceeded to the Office of the Comptroller General, at the Ministry of Finance, to authenticate whether on December 24, 1998 the Ministry of Finance authorized the payment of the money in question, but they were told that at no time on December 24, 1998 did the Ministry of Finance authorize the payment of the three checks in the amounts US$83,000.00, US$40,000.00, and US$30,650.00, respectively. At this juncture, Witness Dargbe informed the court and jury that the investigators held the appellant liable for the amounts in question as there were no checks in the bank to show that the money was actually paid to any customer. As a result, he said, the investigators were left with no alternative but to charge the appellant with the commission of the crime of theft of property.

At the end of his testimony, Witness Dargbe was directed by the prosecution, cross examined by the defense counsel, and discharged from the stand with the thanks of the court. Thereafter, the prosecution rested evidence in toto and submitted the case to the court and jury for arguments, reserving the right to produce rebuttal evidence if necessary.

At that point and in keeping with the provision of the statutory laws of this land, the defense counsel filed a motion for judgment of acquittal, stating that the State had failed to establish a prima facie case against the appellant and praying that the trial court would dismiss the case against the appellant and discharge her from further sitting and answering to the charge of theft of property. The motion for judgment of acquittal was resisted by the prosecution, argued and denied by the trial court, which then ordered that the case be proceeded with on its merits in compliance with law.

Following the court’s ruling, the appellant took the stand as a witness in her own defense. In her testimony in chief, as appeared on sheet three of the minutes of January 26, 2000, the appellant informed the trial court and jury that on December 24, 1998 she was given money to pay all checks that were presented to her on that day; that the work load was very hectic that day and therefore she took the time to cash all checks that were presented to her; and that at the end of the day, she did all her work, sent them to Deddeh Lavala and R. Allen Schollar, and balanced her book for the day. She explained further that she did her proof sheet and gave it to the vault custodian and thereafter left for home. According to the appellant’s general statement, it was to her utmost surprise that on Monday morning, after she had started her work, Alexander Andrews from the accounts section informed her that her work was not balanced. Her immediate reaction, she said, was “how can that be,” because she had balanced her work and sent it to Mr. Schollar. She stated that Mr. Schollar had approved her work, intimating to appellant that her work was balanced. She alleged that upon receiving the information from Mr. Andrews, she advised him to go back and check his records thoroughly whilst she went ahead and started her daily transactions. She also explained to the court and jury that on Tuesday the ITC personnel still could not balance her work by US$153,650.00; that Mr. Andrews checked all day on Tuesday and that in the afternoon he alerted officials of the bank concerning the shortage; that a meeting was convened that afternoon with them on the platform; and that the officials of the bank told them that they had up to Wednesday morning to produce the amount. The appellant further testified that she went home and came back on Wednesday morning, and that she was again informed by Mr. Andrews that the amount of US$153,650.00, representing three checks the amounts of US$83,000.00. US$40,000.00, and US$30,650.00, constituted the shortage. In addition, the appellant explained that before the bank was opened at 9:30 ante meridian the following day, one Jerry convened another meeting to remind all concerned about the shortage. Thereafter, appellant noted that she was taken off and escorted into Jerry’s office and was instructed to write a statement, which she did. According to appellant, she remained in Jerry’s office up to closing time. The appellant further testified that she went back to work on Thursday, December 31, 1998, a bank holiday, and remained in her cage until she was transferred to the manager’s office where she was turned over to the CID; that she was requested to explain what had happened, which she did; and that thereafter she was instructed to go back to her cage, but as soon as she got to her cage, she was further instructed to go along with CID to the police headquarters where they requested her to make a statement. The appellant stated that it was then that she informed the CID that she was not writing a statement without her lawyer being present. According to the appellant’s statement in chief, she waited until Counsellor Gongloe came and when she informed him about what the CID had requested her to do, Counsellor Gongloe advised her to write her statement, which she did. After that, Counsellor Gongloe left and she was placed in the police cell on December 31, 1998. On January 1, 1999, she said, the CID asked her the same questions and she told them that she did not have the money. Therefore, she was put back into the cell and brought out on Saturday morning into the office of the charge of quarters, where she remained until 5:30 before she was sent back into the cell. It was while she was in the cell that Counsellor Gongloe signed for her to be released for three days. The appellant further intimated that her supervisor of the foreign department, Mrs. Alice Roberts, along with Mr. Varney Jackson and herself, left the police headquarters together. She also informed the court and jury that she had been employed by ITC for ten (10) consecutive years, commencing from September 1, 1988; that part of the period had been interrupted by the Liberian civil war, but that in 1994, after some peace had been restored, she was called back to work. She stated further that she had a good working relationship with her workmates and was consequently honoured for five years of service; that on December 12, 1998 she was again honoured for ten years of outstanding services rendered the bank; that in January 1998 she was promoted to the position of head teller in the foreign department in January, 1998; that she was pleased with the promotion and accepted the job with honour. Therefore, she said, she had no cause or reason to steal from ITC the US$153,650.00 which she was accused of stealing. The appellant further stated that the employees of ITC were informed that ITC was going to discontinue its operations as of December 31, 1999, and that because of this she was set up so that she could not get the benefits to which she was entitled because of her long service with ITC. Therefore, appellant said, she wanted the trial court and jury to know that under no condition would she have stolen the US$153,650.00 from the bank, of which she was accused.

Upon the conclusion of the statement in chief of the appellant, she was directed, cross examined by the prosecution, questioned by the jury and court, and discharged from the witness stand with the thanks of the court. The defense counsel then rested evidence in toto.

At that juncture, the prosecution, based upon the notice previously given to produce a rebuttal witness to rebut one of the answers given by the appellant while on the witness stand, produced one Julia Poboe as a rebuttal witness. The rebuttal witness was read the following question, which had been posed to the appellant and the answer which she had given in response thereto. We quote the said question and answer, as follows:

Q. “Mrs. Witness, you have stated that you encashed the three checks in question in the sum of US$153,650.00 and you have also stated that the said checks were approved by the bank’s authorities and the reference desk. Would you mind telling me the names of the bank’s authorities who approved those checks and the name of the person in the reference section who referenced the checks?”

A. The bank’s authorities names are Joseph Aquaye, Willie Laribe and Allen Schollar and the reference person is Mrs. Julia Poboe.”

The prosecution then posed the following question to the rebuttal witness:

Q. “Madam Witness, please tell this Honourable Court and jury what you know of Government of Liberia’s checks and Government of Liberia’s release?”

A. As I said before, I am Julia Poboe. I am supervisor of the reference section and I have worked with ITC for 15 years and we have a standing procedure that all Government of Liberia checks must accompany a Government of Liberia release. The release gives the amount the customer claims and the check number. There has been no time that any government checks were encashed without a release. I did not reference the alleged three checks. I did not receive a release and there are no three checks. I was further asked what I know. I know that Mr. Joseph Acquaye, Sr., vice president, does not approve the United States dollar checks for encashment; he is responsible for Liberian dollars only. So it is not possible for him to have signed United States dollar checks. That is what I know thus far.”

At the end of this statement, rebuttal Witness Poboe was cross examined and discharged from the witness stand with the thanks of the court.

Thereafter, both the prosecution and the defense counsel requested the court to charge the jury on certain principles of law with respect to their respective sides of the case, which the court did.

After final arguments of the case were heard, the jury retired to their room of deliberation and subsequently brought a unanimous verdict of guilty against the appellant, Elizabeth Davies.

On February 8, 2000, predicated upon the unanimous verdict of guilty, the court entered final judgment against the appellant, adjudging her guilty of the crime of theft of property as charged in the indictment and ordering her to make restitution of the amount of US$153,650.00, the same being the subject value of the theft, noting that upon the appellant’s failure to do so, she should be arrested and imprisoned until the full amount was paid. It was from this final judgment of the trial court that appellant excepted and announced an appeal to the Supreme Court of Liberia sitting in its October Term 2000. Thereafter, as required by law, the appellant filed a seven-count bill of exceptions.

After a careful perusal of the certified records transmitted to us, we consider that the below listed points constitute the cardinal issues for the determination of this case:

1. Whether or not the prosecution established its case beyond a reasonable doubt to warrant the conviction of the appellant?

2. Whether or not the uncorroborated testimony of the appellant was sufficient to acquit her of the charge levied against the appellant, especially when the evidence against the appellant is clear and convincing?

3. Whether or not the allegations contained in the appellant’s bill of exceptions are legally and factually sufficient to warrant the setting aside of the verdict and reversing of the trial court’s final judgment entered against the appellant?

Traversing issue one, resort was had to the indictment and the evidence adduced at the trial. The indictment upon which the appellant was arrested and charged with the commission of the crime of theft of property alleged that on the 24th day of December, 1998, while still employed with the ITC Bank, the appellant, as head teller of the foreign department of said bank, received the amount of US$771,042.83 from the vault of the ITC Bank and from teller no. 6 and teller no.10 for the exclusive purpose of encashing United States dollar checks drawn on the bank on the said December 24th 1998, and that the appellant could not account for the amount of US$153,650.00. The indictment further alleged that upon investigation, the appellant claimed that she had disbursed the said amount of US$153,650.00 to encash three checks drawn on the accounts of the Government of Liberia; that the three checks, it was also alleged, were only reflected on the appellant’s daily transaction report but were not recorded in the normal banking system because they were never referenced; and that when officials of the Ministry of Finance were contacted with the view to ascertaining whether or not the said checks were in fact issued by the Ministry of Finance, they denied that the Ministry had ever issued the alleged checks, adding that there were no records at the Finance Ministry evidencing the issuance of the said checks and that no release letter(s) were written, which would have accompanied the said checks. We have found nothing irregular about the indictment, and we hold that considering the evidence produced by the prosecution, the indictment charging the appellant with the commission of the crime of theft of property was well founded.

Count four (4) of the bill of exceptions raised the issue of the judge’s refusal to grant appellant’s motion for a judgment of acquittal and asserts this as a ground for the review and reversal of the final judgment because, according to the appellant, the prosecution had allegedly failed to establish a prima facie case.

Our Penal Law provides that a person is guilty of theft if he or she:

(a) knowingly takes, misappropriates, converts or exercises unauthorized control over, or makes an unauthorized transfer of interest in the property of another with the purpose of depriving the owner thereof; or (b) knowingly obtains the property of another through deception or by threat with the purpose of depriving the owner thereof or purposely deprives another of his property by deception or by threat. See Penal Law, Rev. Code 26:51(a) and (b).

The prosecution of all criminal matters in our jurisdiction has its foundation in certain basic principles of law. For example, it is a generally established principle of law that in all trials upon indictments in order for the State to convict the prosecution must prove the guilt of the accused with such legal certainty as to exclude every reasonable hypothesis of his innocence; that material facts essential to constitute the crime charged must be proven beyond a reasonable doubt; otherwise the accused will be entitled to a discharge. Dyson v. Republic, [1906] LRSC 6; 1 LLR 481 (1906), text at 483. The Honourable Supreme Court of Liberia, in speaking on this principle of law, has opined that:

“This Court reaffirmed the doctrine well founded in the statute laws of this Republic, that every person alleging a fact is bound to prove it, and further that allegations of a party, however logically stated in the court of law, cannot be taken as evidence. Proof to a judge, in the trial of a case, is what a compass is to a mariner on the ocean.” Massaquoi et al., v. Republic et al.[1943] LRSC 3; , 8 LLR 112 (1943), text at 119.

To warrant a conviction in a criminal case, the State must prove its case beyond a reasonable doubt; and the burden of proof remains with the prosecution throughout the trial. For reliance, see Burphy v. The Bureau of Traffic, [1976] LRSC 24; 25 LLR 12 (1976), text at 23. With this basic general principle of law in mind, the prosecution set out and proved its case beyond all reasonable doubt by the use of oral and documentary evidence.

During the trial, there was a common thread which ran through the testimonies of the prosecution’s witnesses. They were unanimous in their separate testimonies as to how the appellant had received the amount of US$771,042.83 on December 24, 1998, and that at the end of the day’s bank transactions, the records reflected a shortage of US$153,650.00, which shortage was attributed to the payment of three (3) alleged Government of Liberia checks in separate amounts of US$30,650.00. US$40,000.00, and US$83,000.00, and for which amounts the appellant could not account. The testimonies of the prosecution witnesses also corroborated the non-existence of the three checks, for reason that the subject checks never passed through the system of the bank.

The first witness for the prosecution, in the person of Mr. Alexander Andrews, testifying to the facts in the case, deposed as follows:

“As I earlier stated, I was assigned to the bank’s accounting section at the ITC Bank and charged with the responsibility of checking the tellers’ report for check and balance purposes. After the transaction on December 24, 1998, the teller proof sheet for Elizabeth Davies and the journal entry did not balance by US$153,650.00. I went to check how she incurred this shortage. I first started analyzing the report of Elizabeth Davies and on that report she carried US$771,042.83 as the total amount received from the vault and other deposit tellers. At the end of the day, the cash reported in the journal entry, as per the proof sheet, differed from the amount, resulting to three checks recorded only in her report…”

On the same issue, the prosecution’s second witness, in person of Allan B. Schollar, senior vice president of ITC, stated on sheets one and two of Tuesday, December 28, 1999 minutes of the court, as follows:

“On December 24, 1998, I was acting foreign exchange manager at ITC Bank. Mrs. Elizabeth Davies was the US dollar paying teller on that day. She was responsible for paying all United States dollar checks cashed and savings withdrawals. She received the total sum of US$771,042.83. This amount was received from the vault and from deposit tellers numbers 6 and 10. This figure was evidenced by debit journal entries for cash received from the vault and the two tellers. Elizabeth Davies paid out certain sums in respect of checks cashed and savings withdrawal slips. At the end of the day, she turned over to the vault her remaining cash of US$43,527.15.”

As to the shortage, Witness Schollar testified, as follows:

“When the bank’s accountants double checked the figure, they discovered a difference in the credit journal entries passed by Elizabeth Davies and found that the difference amounted to a shortfall US$153,650.00. The bank’s accountants informed us that this figure represented three checks totaling US$153,650.00, and that from the tapes attached to Elizabeth Davies’ proof sheet, it was found that the checks were for the amounts of US$83,000.00, US$40,000.00, and US$30,650.00.”

The fifth witness for the prosecution, in the person of Major Dixon Dargbe, while on the witness stand on Tuesday, December 30, 1999, testified to the effect that on December 28, 1998, the management of the ITC reported to the Police CID a theft of property case involving the amount of US$153,650.00; that the director of the CID immediately constituted a team of investigators to probe into the matter; that the team then proceeded to the crime scene (ITC Bank); and that upon their arrival at the bank, Mrs. Elizabeth Davies was introduced to the investigators as the person to whom the amount was entrusted. He said the team immediately started their work by asking Mrs. Davies to tell them what she knew about the allegation levied against her by ITC; that in response, Mrs. Davies explained to the investigators that on the morning of December 24, 1998, upon reporting to work as head teller of the foreign exchange account, she received the said amount for normal business transactions. The witness also stated that according to the appellant, during the course of that day, she disbursed the amount in question on three Government of Liberia checks in the amounts US$83,000.00, US$40,000.00, and US$30,650.00, respectively.

The testimonies of the prosecution’s witnesses as to the receipt of the money by appellant on December 24, 1998 and the shortage in the amount of US$153,650.00, as the result of the encashment of the three checks, was corroborated by the appellant herself. In her own behalf, she testified on Tuesday, January 25, 2000, as follows:

“On December 24, 1998, I was given money on that day to pay all checks that were presented to me… On Tuesday, they could not balance my work by US$153.650.00.”

She further testified that:

‘1 was told that morning by Alexander Andrews that the amount of US$153,650.00 was for three checks and the three checks were US$83,000.00, US$40,000.00, and US$30,650.00.”

When the appellant was asked a question on the cross examination on Wednesday, January 26, 2000 as to whether she included the three checks in her report for December 24, 1998, she answered as follows: “Yes, the three checks were included in my report.”

As to the non-issuance by the Ministry of Finance of the letters of release for the non-existence of the three checks, which the appellant alleged she encashed, resulting in the shortage of the US$153,650.00, the first witness of the prosecution, of Mr. Alexander Andrews testified, as follows:

“So to further our inquiries, we went to the Ministry of Finance Comptroller’s Office to inquire on any amounts of US$40,000.000, US$83,000.00, and US$30,560.00 release letter(s) and the checks from the Ministry of Finance for December 24, 1998, and they answered us that they did not issue any checks for the above amounts.”

This evidence was corroborated by another witness for the prosecution, in the person of Mr. Allan Schollar, who testified as follows:

“Finally, we did one last verification on all Government of Liberia checks. There must follow behind the checks letters from the Ministry of Finance authorizing the ITC Bank to pay checks drawn on Government of Liberia’s accounts. We even called the office of the comptroller at the Ministry of Finance to ask if any payment authorization letters had been issued for these checks and the answer was ‘no’.”

The third witness for the prosecution testified on the 34th day’s jury session, as follows: “I did not come across the three Government of Liberia checks in question in the individual amounts of US$83,000.00, US$40,000.00 and US$30,650.00, totaling the amount of US$153,650.00.”

The prosecution’s fifth witness, Major Dixon Dargbe of the Liberian National Police, while on the stand on Tuesday, January 18, 2000, the same being the 44th day’s jury session, testified to the non-issuance and, therefore, the non-existence of the three checks, which were allegedly encashed by the appellant. He said: “Not being satisfied, the investigators then proceeded to the Ministry of Finance, in the office of the Comptroller General, to authenticate as to whether on December 24, 1998 the Ministry of Finance authorized the payment of the amount in question. We were told that at no time on December 24, 1998 did the Ministry of Finance authorize the payment of these checks in the amounts of US$83,000.00, US$40.000.00, and US$30,650.00.”

In the case Matthews v. Republic, [1978] LRSC 50; 27 LLR 257 (1978), text at 265, the Honourable Supreme Court of Liberia opined: “The inability of a bailee to account for money or any other article of value entrusted to his care thereby violates the confidence which the owner reposed in him and he is therefore answerable to the owner and to society.”

In order to constitute theft under our Penal Law, the taking or retention of the property of another must be intentional, fraudulent and felonious and the ensuing circumstances in each case will determine whether or not the crime has been committed. In the case at bar, the appellant was entrusted with the bank’s money. It was given to her for the exclusive purpose of encashing all United States dollar checks presented for encashment at the bank on that day (December 24, 1998), because of her position as the head teller at the foreign exchange department of the bank. The appellant was therefore not clothed with the authority to expend the money for any purpose other than the encashment and/or payment of US dollar checks as well as US dollar withdrawal slips presented to her. The appellant did not deny receiving the total sum of US$771.042.83 from the bank. Therefore, she had the lawful responsibility to account for the money-all of it-with proper proof that it had been actually used for the purposes it was intended, and thus justifying the confidence the bank had reposed in her when she received the money. Up to the date of this opinion, the appellant still has in her possession the total amount of US$153,650.00, the same being part of the total sum of US$771,042.83 unaccounted for and which she intends to feloniously deprive the bank of.

Through both oral and documentary evidence, the prosecution, as already outlined in this opinion, has formed, link by link, the chain of evidence needed in criminal cases to lead any reasonable mind to the conclusion of the guilt of the appellant beyond a reasonable doubt. In criminal prosecution, in order to eradicate every reasonable doubt, the evidence must be conclusive; and if it be circumstantial, it should be so connected as to positively connect one element within another for a chain of evidence sufficient to lead the mind irresistibly to the conclusion that the accused is the guilty party. Kojèe v. Republic[1970] LRSC 29; , 20 LLR 18(1970); Republic v. Smith, [1976] LRSC 43; 25 LLR 207 (1976), Syl. 1.

The Honourable Supreme Court, in the case Kamara v. Republic. [1973] LRSC 81; 22 LLR 329 (1974), said that the question in criminal cases therefore, is not of mere proof but proof beyond a reasonable doubt. Thus, where an accused has presented proof or evidence as to raise a strong doubt regarding the substance of prosecution’s case, the latter is under the duty to rebut said evidence or the conviction will be overturned. The only evidence in the testimony of the appellant which needed rebuttal, and which was accordingly rebutted, was an answer to a question propounded to her, as follows:

“Q. Madam witness, you have stated that you encashed the three checks in question in the respective sums of US$83,000.00, US$40,000.00 and US$30,650.00, and you have also stated that the said checks were all approved by the bank’s authorities and the reference desk. Would you mind telling me the names of the bank authorities who approved of those checks and the name of the person in the reference section that referenced said checks?”

In response, the appellant stated:

“The bank authorities’ named is Mr. Joseph Acquaye, Mr. Willie Laribe and Mr. Allan Schollar, and the reference desk is Mrs. Julia Poboe.”

In consequence of the foregoing answer, the prosecution notified the court that it would produce a rebuttal witness to rebut the answer given by the appellant, quoted supra. Mrs. Julia Poboe, one of the authorities at the bank named by the appellant as having approved the three checks, appeared in court on Thursday, January 27, 2000 and testified, as follows:

“As I stated before, I am Julia Poboe. I am supervisor of the reference section and I have worked with ITC for 15 years. We have a standing procedure that all Government of Liberia checks must be accompanied by a Government of Liberia release. The release gives the amount the customer claims and the check number. There has been no time that government checks were cashed without a release. I did not reference the three alleged checks. I did not receive a release, and there are no three checks, and I was further asked what I know. I know that Mr. Joseph Acquaye, Sr., vice president, does not approve United States dollar checks for encashment; he is responsible for Liberian dollars only. So it is not possible for him to have signed the checks.”

With the foregoing answer, the defense that appellant intended to develop in her answer relative to the officials of the bank, whom she alleged approved the three checks, was completely shattered. Therefore, the prosecution having forged, link by link, the chain of evidence by the production of both oral and documentary evidence, it succeeded in prosecuting the crime of theft of property as charged in the indictment and found by the grand jury during the February 1999 Term of Court.

The next issue is whether or not the uncorroborated testimony of the appellant in this criminal case is sufficient to acquit her of the charge levied against her, especially when the evidence against the appellant is clear and convincing?

To corroborate, in legal parlance, means to strengthen; to add weight or credibility to a thing by additional or confirm-ing facts or evidence. Corroborating evidence is evidence supplementary to that already given and tending to strengthen or confirm it. It is additional evidence of a different character to the same point. BLACK’S LAW DICTIONARY 341 (5th ed.) In our jurisdiction, in order for any evidence to be weighty and relied upon, especially in criminal matters, said evidence must be corroborated.

The case at bar is premised upon a criminal offense-theft of property. In proving the indictment under which the appellant was charged, the prosecution’s five witnesses, most of whom testified to how appellant received the amount of US$771,042.83 and that at the end of the day’s transaction, that is December 24, 1998, there was shortage in the amount of US$153,650.00, corroborated each other as to the appellant’s claim that the amount of the shortage was disbursed for the encashment of the three checks in the separate amounts of US$40,000.00, US$83,000.00, and US$30,650.00. These prosecution witnesses were unanimous and corroborative as to the non-existence of the three checks aforesaid, as well as on the fact that the checks were never processed through the regular banking system. In addition to these strong links in the chain of evidence, to the effect that the said checks were never reflected on the list of checks issued by the Ministry of Finance for the same period during which the said checks were allegedly issued, the checks were also not listed in the release letters by the Ministry of Finance for the same period under review.

The appellant took the witness stand in her own behalf, in an effort to disprove the charge brought against her. She admitted receiving the amount of US$771,042.83, but endeavored to evade liability by asserting that she did what was required to be done on that day and that she made her report to Deddeh Lavala and Allan Schollar. She, however, deliberately avoided any reference to the three checks in her general testimony, and regarding which she had alleged she disbursed the amount of US$1 53,650.00 for their encashment.

We hold, after reviewing all the evidence that the appellant’s evidence was in total substantiation of the charge brought against her, instead of being exonerative or vindictive. Recourse to the records revealed that the appellant’s evidence or testimony in the trial court stood in isolation of the records which contained not a scintilla of evidence to corroborate it. The Supreme Court of Liberia has held that the uncorroborated testimony of a person accused of a crime is insufficient to acquit, especially when the evidence against him is clear and cogent, as in the instant case. Johns v. Republic, 13 LLR 143 (1958), text at 151. Therefore, the answer to the question raised by the second issue as to whether or not the uncorroborated testimony of appellant in this criminal case is sufficient to acquit her of the charge levied against her is in the negative.

The third issue is whether or not the allegations contained in the appellant’s bill of exceptions are legally and factually sufficient to warrant the setting aside of verdict and reversal of the trial court’s final judgment?

In count one of the bills of exceptions, the appellant contended that the trial judge erred when he denied her motion for change of place of the trial without first investigating whether appellant could establish local prejudice. The appellee counter argued that the trial court committed no error in denying the motion. Section 5.7 of the Criminal Procedure Law gives the trial court the discretionary power to grant or deny a motion for a change of the place of the prosecution of a case. The statute says that the court “may” order the proceedings in a criminal prosecution transferred to a court of competent jurisdiction in another county. In the interpretation and/or construction of a statute, the court generally considers the legislative intent of the statute. In our opinion, the word “May” as opposed to “shall” is indicative of discretion or choice between one or more alternatives. BLACK’S LAW DICTIONARY 883 (5th ed.) And in the absence of any showing of the arbitrary use of such discretion, the trial court cannot be said to have committed reversible error, especially as we have found no abuse of the trial court’s use of its discretionary powers.

In addition to the above, the appellee submitted that the motion for the change of place of trial was filed in gross violation of Rule 8 of the Rules of Court, in that the case having been assigned for jury trial at 10:00 ante meridian on December 9, 1999, the motion was not filed and served until the very hour the case was called for the commencement of the ,jury trial. The appellee cited for reliance, see Rule 8 of the Rules of Court of the Circuit Courts, as well as the filing date and hour as shown on the motion papers. The Court concurs with the appellee’s contention and reaffirms that the trial judge did not err in denying the appellant’s motion for change of place of trial.

With regard to count 2 of the bill of exceptions, appellee submitted that the trial court committed no error in disallowing the question posed to the prosecution’s third witness who had been introduced as an office assistant in the foreign exchange department of the ITC Bank. The appellee submitted that the question was intended to establish a bailor/bailee relationship when indeed and in fact this was not at all the issue before the court for trial, we fully agree with the contention of the appellee, and consequently, the said witness could not serve as the best evidence to answer the question. See page 2, minutes of court, December 30, 1999. We hold therefore that the trial court rightly disallowed the question because it was irrelevant and immaterial to the crime of theft of property and was therefore intended to introduce extraneous matter into the trial.

As to count three of the bill of exceptions, appellee submitted that no right of appellant was violated or any interest of hers affected by the transfer of the marks of identification from the originals of official documents from the Ministry of Finance to the photocopies which had been produced under the direction of the trial court. It is the holding of this Court that the originals of appellee’s exhibits P/1 through P/10 had been testified to marked and confirmed, and tested by the cross examination. Hence, the only reason for requesting the trial court to transfer the marks from the originals to the copies was to have the originals returned to the Ministry of Finance for the preservation of those very im-portant financial documents of a ministry of the Government of Liberia. It is the further holding of this Court that the originals of these documents, having been brought to the trial court, testified to, marked and confirmed, and the appellant having placed the said documents under the cross examina-tion, the transfer of the marks of identification to the photo-copies, made under the direction of the trial court, constituted no violation of appellant’s rights, and the admission of the said copies into evidence affected no interest of the appellant, since the whereabouts of the originals of the said documents had been established and were well known. It is our opinion therefore that under the circumstances the judge committed no reversible error.

With regard to count five (5) of the bill of exceptions, the same is vague and ambiguous, in that it does not give notice as to the points of law allegedly listed in appellant’s request on which the trial court omitted to charge the jury, as well as the points of law on which the trial court improperly charged the jury. This Honourable Court therefore disregards this count in the bill of exceptions. This Court is on record as holding that only such matters as were interposed in the court below and which appear in the bill of exceptions as record can be taken cognizance of in the appellate tribunal. Bryant v. African Produce Co., [1940] LRSC 4; 7 LLR 93 (1940). Also, in Flood v. Alpha, [1963] LRSC 31; 15 LLR 331 (1963) this Court held that “issues not raised in the court below and not presented in the proper and timely manner on appeal, will not be considered by the Supreme Court.”

As to count six (6) of the bill of exceptions, this Court says that the same is void of notice to the appellee, in that the appellant simply alleged that the verdict is illegal and contrary to law without stating the manner in which the verdict is illegal or contrary to law. In keeping with our Criminal Procedure Law, a verdict is legal and in consonance with law when it is: (a) returned in open court by a twelve (12) man empaneled jury presided over by a foreman; (b) unanimous in declaring that the defendant is guilty or not guilty; (c) when it does not convict a defendant of a greater offense than that which is laid in the indictment and proven at the trial; and (d) when the trial jury is polled and their unanimous concurrence recorded. For reliance see Criminal Procedure Law, Rev. Code 2:20.11, paragraphs 1, 2 and 3. Not having listed any of the legal grounds, count six (6) of the bill of exceptions cannot be sustained and the same is therefore overruled.

As to count seven (7) of the bill of exceptions, this Court says that the judgment of the trial court is in harmony with the law, because the said court adjudicated the crime that was charged and proven, declared the guilt of the appellant, and accordingly sentenced her to the penalty and treatment which the law prescribes. For reliance, see Criminal Procedure Law, Rev. Code 2:23.1.

Wherefore, and in view of the foregoing, it is the considered opinion of this Court that the judgment of the trial court should be and same is hereby confirmed and affirmed, with modification to also include the imprisonment of the appellant for a period of three (3) years, as prescribed by chapter 50, section 50.5(lb) of the Penal Law of the Republic of Liberia. The Clerk of this Court is hereby ordered to send a mandate to the court below instructing the judge presiding therein to resume jurisdiction over this case and to enforce its final judgment consistent with this opinion. Costs are disallowed. And it is hereby so ordered.

Judgment affirmed with modification.