JOHN BING, Appellant, v. REPUBLIC OF LIBERIA, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT, SINOE COUNTY. Argued November 1, 1966. Decided December 16, 1966. A proper motion for diminution of record will be granted when, prior to the hearing of an appeal, the moving party shows that the record is deficient through no fault of the moving party and that the deficiency is curable by the clerk of the court below. On appeal from a judgment of conviction on a verdict of “guilty” of murder, the appellant’s motion for diminution of record was granted. G. P. Conger Thompson for appellant. eral Nelson W. Broderick for appellee. Solicitor Gen- MR. JUSTICE SIMPSON delivered the opinion of the Court. Appellant John Bing was indicted during the November 1963 term of the Circuit Court of the Third Judicial Circuit, Sinoe County, sitting in its criminal assizes for the heinous crime of murder. During the May 1965 term of the aforesaid circuit court, the case was called for hearing before His Honor Lewis K. Free, circuit judge presiding by assignment. Upon the trial, the jury returned a verdict of guilty against appellant, to which he duly excepted and appealed to this Honorable Court for final review. When this case was called for hearing, it was discovered that although a capital offense was involved, the appellant was not represented by counsel. Thereupon this Court appointed Counsellor G. P. Conger Thompson to represent the interest of the appellant. After accepting said 651 652 LIBERIAN LAW REPORTS appointment, counsel requested the Court to grant him reasonable time within which to familiarize himself with the records in the case and thereafter to prepare and file the appellant’s brief thereon. This request was granted and the matter was continued to a later date. When the case was finally called for argument, it was discovered that a motion for diminution of record had been filed by counsel for appellant. In this motion, appellant alleged that the clerk of the trial court had omitted to have entered upon the records appellant’s exception taken to the trial judge’s charge to the jury as made on the 17th day of May, 1965. In buttressing this allegation, appellant’s counsel contended that whenever a written charge is made and delivered by the judge, the exceptions taken thereto by either party to the cause are generally recorded in the minutes of that particular day’s sitting, and this recordation does not appear upon the written charge sheet itself. Appellant’s counsel further contended in his motion that the same error on part of the clerk of the trial court obtained in respect of Count 4 of appellant’s bill of exceptions which dealt with exceptions taken at the time of the admission into evidence of a knife allegedly used by appellant in the commission of the crime. It was contended that these omissions from the record were caused by the carelessness of the trial court’s clerk. In the premises, appellant prayed that this Court direct a mandate to the clerk of the Circuit Court of the Third Judicial Circuit, Sinoe County, commanding that the above-referred-to record be forthwith sent hereat. To this motion, the prosecution spread upon the records a resistance containing three counts. In substance, it alleged that the motion was designedly filed for the purpose of delaying justice. It was contended that no exceptions were taken to the judge’s charge or to the trial court’s ruling on the admissibility of the knife into evidence. Additionally, the prosecution strenuously argued that the LIBERIAN LAW REPORTS 653 records had been carefully scrutinized and a certificate signed by Attorneys Allen W. Smith and Willie N. Duncan attesting to the fact that they had carefully scrutinized the records in the said case and found them to be correct and complete. This Court has held in Elliott v. Dent, 3 L.L.R. i II (1929), that it takes cognizance only of matters of record upon the face of certified copies of the proceedings had in the lower court and transmitted through the proper channel. See also Franco-Liberian Transport Company v. Bettie, 13 L.L.R. 318 (1958). Diminution of records is generally held to mean incompleteness of records. It signifies that the record sent up from an inferior to a superior court for review is incomplete or not fully certified. In addition to the above, the Supreme Court of Liberia has often and anon made pronouncement to the effect that it will not entertain a case legally deficient in its records. Anderson v. Anderson, 10 L.L.R. io8 (1949). It follows that where a deficiency exists and same is discovered prior to commencement of argument on the particular case, and a proper motion in respect of the purported diminution is addressed to the court apprising it of the existence of such deficiency, the motion for diminution will generally be sustained. In the case of Vietor & Huber v. Vines, [1914] LRSC 3; 2 L.L.R. 146 (1914), we held inter alia, while confirming the several rulings of this Court in Johnson v. Roberts, [1861] LRSC 4; 1 L.L.R. 8 (1861), McAuley v. Laland, [1894] LRSC 1; 1 L.L.R. 254 (1894), and Jackson v. Horace, i L.L.R. 99 (1878), to the effect that the parties appealing should superintend their appeal and see that all legal requisites are met, it should be observed that these decisions refer to cases called for hearing and dismissed on account of some material defect in their records. The present appellant having neglected to move to continue the case in order to have the records corrected, the above cases are not analogous to the case at bar. 654 LIBERIAN LAW REPORTS In the present case, as hereinabove mentioned, counsel whose duty it is to prepare the brief and present arguments before this Court did not represent this appellant in the court below and therefore had no actual knowledge of what had transpired in that court save for information obtained from the record. The case before us has to do with murder. A life has been lost and judgment rendered as to guilt for the commission of this atrocious crime. It is legally incumbent upon us as judges of the law to ensure that every legal right of an accused is protected so as not to violate his inalienable right to life in the event he is found innocent, especially so when the law places the burden upon the prosecution to establish his guilt and not upon him to show his innocence. In the present case, the prosecution has contended that two lawyers signed a certificate attesting to their careful scrutiny of the records in this case and that, in the premises, it cannot be said that the records are incomplete. The fallacy in this line of reasoning is easily discernible when one considers that a prerequisite to the transmission of all records from an inferior to a superior court is a statement by counsel to the effect that the records are correct. Therefore, if we were to sustain the argument of the prosecution, a motion for diminution of records could never be granted because of the existence of a certain certificate or statement made during the superintendency of the appeal in the lower court. In the case of Attia V. Rigby, i L.L.R. 534 (1907), this Court said : “Diminution of records being a lawful ground for postponing the hearing of a cause before an appellate court, and a reason which this court has uniformly held for continuing suits brought before it, this court entertains the motion… .” We find that this holding as propounded by this Court during its January 1907 term still stands today. In view of the above, the motion is hereby sustained and the clerk of this Court is ordered to send a mandate LIBERIAN LAW REPORTS 655 to the clerk of the Circuit Court of the Third Judicial Circuit, Sinoe County, commanding him to transcribe and transmit forthwith to this Court the documents named in the motion and this case is continued until the March 1967 term. And it is hereby so ordered. Motion granted.