WHEATON S. THOMPSON, Appellant, v. REPUBLIC OF LIBERIA, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, GRAND BASSA COUNTY. Argued March 31, 1960. Decided May 6, 1960. 1. A motion in arrest of judgment based on failure of an indictment to show jurisdiction or to charge an offense may be made before the rendition of final judgment, whether or not a defense or objection on such ground was previously raised. 1956 Code, fit. 8, � 310. 2. Where defects on the face of an indictment are, by nature, dilatory, they may be corrected by a motion to quash ; otherwise they are deemed waived. 3. Defects going to insufficient description of charges in an indictment are deemed cured by a verdict upon the indictment. 4. Where a trial court excludes evidence sua SPOntE, the record should show the grounds of such exclusion. 5. A witness may be cross-examined as to interest, motive and prejudice. 6. A witness may be directly examined as to any relevant, material and admissible proof. 7. A defendant in a criminal action is presumed to be innocent until the contrary be proved; and in case of a reasonable doubt as to whether the defendant’s guilt is established, he is entitled to an acquittal. 8. Notice by writ or subpoena duces tecurn to produce documentary evidence is only required when such evidence is in the possession of another. On appeal from a judgment of conviction for embezzlement, judgment reversed. Momolu S. Cooper for appellant. eral for appellee. The Solicitor Gen- MR. CHIEF JUSTICE WILSON delivered the opinion of the Court.* This is a case that has lingered on the dockets of our courts for more than thirteen years. It had its origin in the finding of a true bill by a grand jury of the Circuit Court of the First Judicial Circuit, Montserrado County, *Mr. Justice Harris, who presided as a circuit judge on the trial of this case below. and Mr. Justice Pierre, who was associated as counsel for appellant, recused themselves and took no part in the adjudication of this appeal. 134 LIBERIAN LAW REPORTS at its November, 1947, term. The appellant was indicted on a charge of embezzlement of the sum of $186,338.61 advanced him by the Liberian Government for the purchase of equipment and supplies in his capacity as quartermaster and supply officer of the Liberian Frontier Force. Local prejudice prevailing against him in Montserrado County at the time of his indictment and arrest, appellant made application to the trial court for a change of venue, which was granted, and the case removed to the Circuit Court of the Second Judicial Circuit, Grand Bassa County. At the May, 1949, term, with His Honor, D. T. Harris, then Circuit Judge, presiding, the case came up for trial. Upon being arraigned, defendant pleaded Not Guilty, whereupon a jury was empanelled to try the issue thus joined. Witnesses having testified for and against the accused, the jury retired to their room of deliberation and thereafter returned a verdict of Guilty against the accused. To this verdict, exceptions were noted by the defendant and a motion for new trial was filed, which being denied, a motion in arrest of judgment was filed and also denied. Final judgment was then entered against the defendant, sentencing him to three months imprisonment and a fine of $ioo with restitution of $58,506.01 embezzled by him. To this final judgment, exceptions were entered and the case removed on appeal to this Court for review. Before entering upon the facts testified to at the trial, we will first address ourselves to the consideration of the motion in arrest of judgment which was tendered after verdict of the empanelled jury, and based on defects apparent on the face of the indictment. Count “1” of defendant’s motion to arrest judgment reads, in its essential parts, as follows : “That the indictment upon which the defendant was charged, arraigned, and pleaded Not Guilty is materially defective, that is to say, said indictment is vague, LIBERIAN LAW REPORTS 135 indistinct and uncertain, in that the indictment, charges that the defendant ‘then and there being, did from time to time receive into his custody, possession, control and supervision, for and on behalf of his employers, the Government of the Republic of Liberia, the aforesaid amounts, subsistence, equipments and supplies for the officers and enlisted men of the Liberian Frontier Force, the aforesaid money totaling the sum of $186,33 8 . 61 , as will be more fully seen in detail by inspection of the statements of accounts herewith filed and made a part of this indictment. And in the same count of the indictment, defendant was charged with receiving cash advances to the amount of $ 21 4, 1 50.43; which uncertainty in the two separate and distinct debts aforesaid does not give the defendant sufficient legal notice of what plaintiff intended to charge him.” Therefore the defendant moved the trial court to arrest judgment. The question which suggests itself to us now is whether the grounds laid in the motion of defendant are such as are cognizable or suited to a motion to arrest a judgment or a motion to quash. In answer to this question we have the following: “A motion in arrest of judgment based on failure of the indictment to show jurisdiction in the court or to charge an offense may be made before the rendition of final judgment, whether or not a defense or objection on such ground was previously raised.” 1956 Code, tit. 8, � 310. By that is meant the jurisdiction of the court over the subject matter, or failure to charge an offense. It is clear from the allegations laid in the motion in arrest of judgment that defects allegedly appearing on the face of said indictment constituted the basis of said motion, which, under our statute controlling, is the proper subject for a motion to quash the indictment. “By pleading generally to an indictment or informa- 136 LIBERIAN LAW REPORTS Lion, is usually held that the defendant admits its genuineness, and waives all matters that should have been pleaded in abatement.” 14 R.C.L. 208 Indictments and Informations � 52. Where defects on the face of an indictment are, by nature, dilatory, they may be corrected by a motion to quash ; otherwise they are considered as waived. Defendant having pleaded to the indictment carrying on its face these alleged defects, which go to the insufficient description of the charge, these defects if such, were cured by the verdict. The trial court therefore did not err in denying said motion. We find several questions put to witnesses by appellant’s counsel which were arbitrarily disallowed by the court, and objections by the prosecution sustained, in some instances without any grounds given by the prosecution or by the court in sustaining said objections. We recite, for example the following question put to witness Alford C. Russ by the appellant’s counsel : “As an officer specifically detailed to reaudit defendant Captain Wheaton S. Thompson’s account, from the aggregate amount of receipts he submitted to his credit, but which were arbitrarily disallowed, please state, if you can, what will be the correct deficit, if any, had they been accepted.” This question was disallowed by the trial court sua sponte, without stating any reasons. We would like to remark here, as we have on other occasions, that while it is the right of the court to disallow a question sua sponte if, to the mind of the court, such a question is irrelevant or legally untenable, the ground or reason on which such a disallowance is based should be stated by the court so as to place the party against whom the ruling is made in a position to prepare a defense against said ruling if said case is removed for review to an appellate court. In this respect the trial court erred. Logan V. Republic, [1924] LRSC 6; 2 L.L.R. 472 ( 1924). LIBERIAN LAW REPORTS 137 On cross-examination the following question was put by defense counsel to witness Alford C. Russ : “I want to suggest that you joined your colleague, travelling auditor Mr. Adorkor, in disallowing many receipts and vouchers submitted by the defendant Thompson along with and in support of his accounts, because he, the defendant, had on the 16th day of July, 1946, reported to the commanding officer, L.F.F., your failure to account for $2,000 advanced you for the purchase of cooking utensils for the Liberian Frontier Force from the United States of America ; am I correct?” The court disallowed this question, notwithstanding the contention by counsel for appellant that the defendant had a right, on cross-examination, to test the motives, inclinations, and prejudices of the witness by this question. On this point we have the following : “A cross-examiner is entitled as a matter of right to test the interest, motives, inclinations and prejudices of a witness, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, and the manner in which he has used those means.” Bryant v. Bryant, [1935] LRSC 15; 4 L.L.R. 328 (1935) , Syllabus 2. It does strike us that the above question would seem to be relevant and admissible when put to a witness who not only had testified against the defendant in a way that could establish guilt for the commission of an infamous crime, but who also, as suggested by the question, was one of the architects of the defendant’s prosecution. There being no reasons assigned by the trial judge for disallowing such an important question, we can only conclude that this ruling of the trial court was erroneous. The contention of the appellant on this score is therefore sustained. When testifying in his own behalf, the defendant was asked the following question on direct examination : “The prosecution during this trial has introduced into evidence books of account said to have been kept by 138 LIBERIAN LAW REPORTS you, and which contain transcripts of your financial transactions during the period of your employment as Supply Officer and Quartermaster, L.F.F. Please say, if you can, whether these books of account contain all of your said accounts and debit figures prior to the checking of your said accounts by the special auditors assigned to perform said duty.” The defendant was also asked the following question : “Please say whether or not you were requested by the special auditor assigned to audit your account to have the books posted to date which have been introduced into evidence during this trial.” In objecting to the above questions, the prosecution stated no grounds whatsoever for such objections. Nevertheless the court sustained said objections and the witness was not permitted to answer the questions. Against this ruling of the trial court, which in our opinion, was contrary to the controlling principles of law, we quote as follows from cases decided by this Court: “The party who produces a witness has a right to elicit by questions any fact which the witness omitted to mention in his general statement before the crossexamination by the other party commences.” Cummings v. Republic, [1934] LRSC 2; 4 L.L.R. 16 (1934), Syllabus 1. “The ground upon which an exception is taken should always be stated so as to enable the appellate court to decide with certainty whether or not same is well founded.” Logan v. Republic, [1924] LRSC 6; 2 L.L.R. 472 (1924), Syllabus 1. The ruling of the trial court sustaining the objections of the prosecution and disallowing said questions was therefore erroneous and prejudicial to the interests of the appellant. We will travel further to the ruling of the trial court on objections raised by the prosecution to the admissibility of all of appellant’s written evidence after it had been introduced and marked by the court, for the reason that the de- LIBERIAN LAW REPORTS 139 fendant had not applied for and obtained a writ duces tecum for their production, even though they were in defendant’s possession. Under the statute applying in such a case, it is only when a document desired to be used by a party as evidence is in the possession of an adversary that a writ duces tecum is necessary. The law on the point is found in our statutes. 1956 Code, fit. 6, � 734. Because of these gross irregularities and illegal conclusions reached by the trial court to satisfy the prosecution at all hazards, we are obliged to quote the following for the benefit of the prosecution in like criminal cases. “In short, in prosecution for embezzlement no party should rest his case upon the weakness of his adversary.” Massaquoi v. Republic, [1933] LRSC 10; 3 L.L.R. 411, 414 ( 1 933). Any person criminally charged is presumed to be innocent until the contrary is proven; and in case of reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to an acquittal. 1956 Code, tit. 8, � z68. Not only does it seem that the prosecution and the court were bent on denying the defendant an opportunity to establish his innocence; in addition, every effort on part of the defense to impeach the veracity of the prosecution’s witnesses was rejected by the court, in most instances without stating any reason therefor. More than that, we noted in the testimony of some of the prosecution’s star witnesses a tendency to overreach in stating facts supposed to be peculiarly within their knowledge, and tending to prove the guilt of the accused. We give, for an example, the substance of a statement of the prosecution’s star witness, auditor Adorkor, as recorded May . 18, 1949. After the defense had failed to get clarification of the charge that the defendant had failed to account for r,io5 bags of rice at a cost of $5,899.78 that is to say, to clarify how it was discovered that the appellant did not have this rice in stock, information was sought from witness Adorkor concerning the sum of $251.70 which the prosecution 140 LIBERIAN LAW REPORTS contended was never accounted for by appellant after he had received same from Colonel Grant. Yet, when asked if this amount formed a part of the deficit for which appellant was being prosecuted, the witness answered : “No,” even though in a previous statement he had explained that, like other amounts that came in to the hands of the appellant, this amount was the residue of sums left over from purchases made by Colonel Grant and paid over to the appellant. The anomaly lies in charging this item as one of the cash advances made to appellant for which he did not account; hence the charge of embezzlement. Yet, when asked if said amount advanced by Colonel Grant to the appellant formed part of the $186,338.61, the total sum charged with having been embezzled by appellant, the witness answered : “No.” If this amount testified to by witness Adorkor in proof of defendant’s guilt, was not a part of the sum charged in the indictment as having been embezzled, why was it injected into the case? Coming to the 1,105 bags of rice at a cost of $5,899.78 alleged to have been delivered to the defendant, the prosecution witnesses testified that denying the defendant credit for said amount was justified for the reason that cash was advanced to the men of the Liberian Frontier Force as a substitute for this rice because it was not in stock to issue to the men. This bench questioned counsel for the prosecution as to the means by which it was discovered that said rice was not in the stock of the appellant, that is to say whether an inventory was taken of the stock and the shortage discovered, especially since the record certified to us reveals that appellant, when on the stand in his own behalf, made the following statement: “In July, 1944, there were a little over zoo men who had been subsisted from the intended enlargement of the force. These men had been subsisted from January to June; but in July, as they were unassigned, no voucher had been made for their subsistence.” LIBERIAN LAW REPORTS 141 Counsel for the prosecution could give an explanation of this. The only statement recorded on this point was by witness Adorkor, who preceded appellant Thompson on the stand, and we quote : “Then an amount of $5,889.78 was disallowed because the defendant claimed to have bought 1,105 bags of rice with this money, and it was never issued to the men nor shown to be in stock. In January and February, 1946, the defendant was supposed to have purchased rice to the value of $1,056, which was not in stock. There was a false entry of $5,018.19 in the statement of account, which was also disallowed.” Nowhere in the record is there any showing, nor has it been advanced in argument by the prosecution before this appellate court, that any inventory was taken of the stock of defendant Thompson which revealed this alleged rice deficit; hence the conclusion must be hypothetical and presumptive. Reconciling these two statements with other like statements in the record could possibly have been easy if written evidence offered by the appellant and sought to be admitted in his defense had not been excluded by the trial court. It therefore seems reasonable to conclude that the verdict reached by the jury was inspired by the exclusive testimony of the prosecution in the absence of these rejected documents of the defense, which, to the mind of this Court, is sufficient to create substantial doubt of the guilt of the defendant. Another element of far-reaching import which seems worthy of notice by this Court entered the trial of this case. During the testimony of Alfred Russ, a witness for the prosecution and one of the auditors who were the architects and builders of this case, it was brought out that, on orders of his superior officer, the defendant made a cash advance of $2,000 to one Captain Russ to purchase certain supplies in the United States of America for use of the officers of the Frontier Force; that the said Captain Russ 142 LIBERIAN LAW REPORTS and auditor Alfred Russ had failed to account for the said amount; and that the appellant and the Bureau of Audits had repeatedly demanded such an account, even to the extent of threats if said amount was not accounted for, but without avail. Further in the record it is shown that the matter reached the Chief Executive, but was suspended on the request of Captain Russ. There is no showing, however, in the record that this amount was ever accounted for by Captain Russ, who was one of the auditors who reaudited the appellant’s account. Reference to this amount by the appellant during the trial of said case, as far as the record reveals, was not merely an attempt to account for the $2,000 but also to show bias and motive from which prejudice to the interest of the defendant could not be excluded. It would appear significant that no effort was made by the prosecution either to prove that no such cash advance had been made by the appellant on orders of his superior officer, or to prove that any such advance had been accounted for before the auditing of appellant’s account resulting in his arrest, indictment and trial for the crime of embezzlement. Therefore the likelihood that auditor Russ must have been prejudiced to his own interest, and could have exerted influence over his associate, auditor Adorkor, in disallowing sundry amounts presented to them by the appellant to confirm the clearance of his account previously made by the Bureau of Audits, would be difficult to exclude from a fair and impartial decision in this matter. Among the written evidence offered by the defense and rejected by the trial court was a certificate of clearance executed in the appellant’s favor by Messrs. Ensuah and Philips, who made the first audit of appellant’s account as authorized officials of the Bureau of Audits. Though not made a point of objections to the admissibility of said documents, yet it was stressed by the Solicitor General when arguing for the prosecution before this Court, that LIBERIAN LAW REPORTS 143 the clearance so executed was unauthorized. Pressed by this Court to explain why, and under what circumstances, the act of these two auditors in the lawful pursuit of their official duties was unauthorized, the explanation given was that it was in violation of office procedure, since their findings could not become public property save through the head of the bureau, namely the auditor. The point of privacy intended to be secured by this procedure strikes us as strange, since this information could not be withheld from appellant, who was an indispensable party to the audit. As to the correctness or incorrectness of the conclusion reached by auditors Ensuah and Philips, for which they gave a clearance to appellant, the prosecution holds that the second auditors, Adorkor and Russ proved same to be incorrect. In Taylor v. Worrell, 3 L.L.R. i4 18 (1928), Mr. Justice McCarthy, speaking for this Court, said : “For it is the evidence that determines the issues of fact in all litigation, and where it appears that a court, tribunal or officer proceeded without the proper evidence for both parties, it creates an irregularity in the trial, and no judgment should be entered thereon.” The foregoing quotation is intended to buttress our opinion that the arbitrary exclusion of all of the written evidence of the appellant because a writ duces tecum did not issue for its production, and the disallowance of sundry credits of appellant by Auditors Adorkor and Russ, without sufficient reasons legally and clearly established on the record, amount to an irregularity at the trial; and therefore the verdict which declared the defendant guilty of the charge was not supported by sufficient evidence to convict; hence the judgment rendered confirming said verdict was also illegal, as the law and circumstances leading to it did not justify such a judgment. In Faber v. Republic, [1929] LRSC 1; 3 L.L.R. 69, 72 (1928), Mr. Justice Page, speaking for this Court, said: , 144 LIBERIAN LAW REPORTS “If the verdict is not founded upon legal evidence, it cannot be upheld ; and if the verdict is not supported by evidence the judgment is therefore also not founded on a legal verdict; and if the judgment is founded on an illegal verdict, the entire proceedings then must naturally tumble ; because where evidence is given at a trial it should form a part of the record even though it be not admitted, in order that the appellate court upon an appeal may ascertain whether it is sufficient legal evidence to convict.” Concluding our opinion on the law and facts stated, supra, we have the abiding conviction that the guilt of the defendant-appellant has not been sufficiently established ; hence the judgment rendered against him is hereby reversed, and the appellant is ordered discharged. And it is so ordered. Reversed.