MONDAY GREENE, Appellant, v. REPUBLIC OF LIBERIA, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, MARYLAND COUNTY. Argued November 1, 1960. Decided December 16, 1960. Where denial by the trial court of a well-grounded motion for continuance in a criminal proceeding has the effect of depriving the defendant of a full and fair trial, a judgment upon a verdict of guilty will be reversed and the case remanded for a new trial. On appeal from a judgment of conviction upon a verdict of guilty of assault and battery with intent to kill, the judgment was reversed and the case remanded. 0. Natty B. Davis for appellant. Assistant Attorney General J. Dossen Richards for appellee. MR. CHIEF the Court. JUSTICE WILSON delivered the opinion of Against one Monday Greene, a resident of the township of Pleebo in Maryland County, now appellant in the above-entitled cause, a true bill was found by the grand jury of the August, 1957, term of the Circuit Court of the Fourth Judicial Circuit, Maryland County; and an indictment was drawn and offered to court against him for the commission of the crime of assault and battery with intent to kill. On August 26, 1958, the case came on for trial before an empanelled jury with Judge Joseph Findley, presiding by assignment over said term of court. Issue was joined between the defendant and plaintiff by the entry of a plea of Not Guilty, whereupon witnesses were qualified, and testified for and against the accused. 164 LIBERIAN LAW REPORTS Evidence having rested, the case was submitted to the jury who retired to their room of deliberation and thereafter returned a verdict of guilty against the accused. This was on August 26, 1958. Defendant, considering said verdict to be contrary to the evidence produced at the trial, filed a motion for new trial, which motion was denied by the court. To this ruling defendant excepted. On September 4, 1958, final judgment was rendered by the presiding judge who sustained the verdict of the empanelled jury, adjudged defendant guilty of the crime with which he had been charged, and sentenced him to imprisonment in the common jail in Maryland County for a period of one year from the date of said final judgment. Defendant noted exceptions to said final judgment and completed an appeal to the March, 1959, term of this Court. At the call of the case before this Court for review, Counsellor 0. Natty B. Davis appeared for the appellant, and Assistant Attorney General J. Dossen Richards appeared for the appellee. Argument on the briefs filed by both sides commenced. Among the points very strongly and ably advanced by counsel for appellant and appellee was one which seriously attracted the attention of the Court; and that was the issue as to denial of a motion for continuance of the hearing of said case on the day on which the trial commenced. This issue was raised in Count “i” of appellant’s brief which alleges the absence of a material witness, Samuel Gaye, who was to establish the deadly assault made by the private prosecutrix on the person of the defendant, in substantiation of his plea of self-defense. Appellant contended that, without the testimony of such a material witness, he could not conduct a proper defense on the trial. Appellee strongly resisted this contention and insisted that the ruling of the trial judge on said motion was legally justified in the exercise of a sound LIBERIAN LAW REPORTS 165 discretion and should therefore be upheld, because appellant had not exercised due diligence to put the machinery of the court in action so as to secure the attendance of said witness at the time said case was assigned for hearing; that is to say, it was just at the point when the case was called for trial that defendant applied for a writ of summons to have said witness appear to testify. Appellee further contended that the purpose of appellant’s application was to baffle and delay the trial of said case. Appellee further insisted that the evidence sought to be obtained from the witness constituted a conclusion and not factual proof of the claim of self-defense set up by the defendant in an effort to justify the assault and battery made upon the body of the private prosecutrix. At this point appellee contended that the onus of establishing the guilt of the accused shifted from the prosecution ; that the defendant had the duty of establishing his innocence by showing that, for the protection of his limb and life, he was compelled to kill the private prosecutrix; and that the appellant was compelled to establish that he was not the aggressor. Nowhere in the record has it been made sufficiently clear who was the aggressor in the alleged fight which took place between the appellant and the private prosecutrix. Nor has it been made sufficiently clear what actually provoked the conflict between the private prosecutrix and the appellant which may or may not have justified the use by appellant of the deadly weapon, a mallet, with which he struck the private prosecutrix. The principle has been laid down by this Court that continuance of a case may be granted on a motion duly filed by the party desiring said continuance. “The law governing continuance has frequently been expounded by this court and we have uniformly held that where it is made apparent that to proceed with the trial of a case substantial justice would not be meted out to all parties concerned, the application 166 LIBERIAN LAW REPORTS should not be refused, provided it is founded upon legal grounds. Among the grounds commonly admitted as good grounds for granting a continuance may be mentioned the following: ( ) Absence of material witness. (2) Inability to obtain evidence of a witness out of the State, in season for trial. (3) Illness of counsel, etc.” Dyson v. Republic, [1906] LRSC 6; 1 L.L.R. 481, 482 (1906) . We desire to emphasize that under our law, supported by the common law, a motion for continuance is addressed to the sound discretion, of the court; and in the exercise of that discretion there should be no abuse. In the admeasurement of substantial justice the conviction of a person charged with the commission of a crime must admit of no doubt; hence it is imperative that, in the exercise of this discretion, anything that would deprive the defendant of all the facts and circumstances through the testimony of witnesses that could lead to the establishment of innocence ought not to be excluded at the trial. In the instant case the appellee has contended that a claim of self-defense under a plea of not guilty imposed upon the defendant the burden of establishing who was the actual aggressor. To establish this, the defendant should have been given every opportunity and chance to produce witnesses on the one hand and the private prosecutrix on the other, since an allegation by one and a denial of the allegation by the other makes a balance on both sides that denies the court the opportunity to determine which of the two has told the truth. To tip the balance it therefore becomes necessary that there must be corroborating witnesses to the testimony of either of the two. Appellant contended that, by the evidence of witness, Samuel Gaye, whose testimony was not heard by the trial court because of its refusal to sustain the motion for continuance, he not being available to testify at the time the case was called for hearing, this essential fact could not be established. LIBERIAN LAW REPORTS 167 We do not intend, by the reference made, supra, concerning the exercise of sound discretion by the trial judge in denying the continuance of a cause because of the absence of a material witness, to infer that a continuance should be granted where there has been gross negligence on part of the mover for such a continuance to put the machinery of the court in action within seasonable time. We do hold, however, that the maximum of discretion should be exercised by the trial judge when it is clear that substantial justice could not be meted out to the defendant or the accused if the testimony of the witness sought by said motion were not heard at the trial. Before the close of argument on the briefs filed by both sides, and at the time when appellee’s counsel was arguing his case, sundry queries were propounded to him from this bench regarding the action of the judge in denying the motion for continuance, and his frank and conscientious position as to whether or not the trial judge had actually exhausted the limit of his discretion in the disposition of said motion. Counsel for appellee waived further argument in the case and requested the Court to remand the case so that this and other salient points involved in the trial of said case could be fairly and impartially retried. Counsel for appellant waived closing on his side because of this request and application of the appellee. This Court, therefore, finds itself obliged to grant the request made by the appellee, which was not resisted by the appellant, and order a remand of said case for retrial; and it is so ordered. Reversed and remanded.