SAMUEL DEAN, Appellant, v. REPUBLIC OF LIBERIA, Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued November 15, 1965. Decided January 20, 1966. 1. The Supreme Court will impose a disciplinary penalty upon a counsellor who attempts to mislead the Court by irregular procedure on oral argument. 2. Fraudulent design or intent is an indispensable element of the crime of obtaining money under false pretense. 1956 CODE 27:302. On appeal, a judgment of conviction of obtaining money under false pretense was reversed. A. Garga Richardson for appellant. No appearance for appellee. MR. CHIEF the Court. JUSTICE WILSON delivered the opinion of The history of this case may be briefly stated as follows. In the year 196o, one Maria Galizia subsequently private prosecutrix herein, sought information through the appellant’s brother in law, Coker A. J. George, concerning the purchase by her from appellant of a certain tract of real property in the Sinkor area near Monrovia. A conference with the appellant followed. He expressed willingness to sell one town lot out of three and one-half acres of land in this area. But the Government of Liberia had need to use this parcel of land and offered the appellant another tract in lieu thereof. He made it known that he had not transferred the said land to the Government nor had he yet obtained a title deed for the land which the Government had offered in exchange. He invited the private prosecutrix to accompany him to the site of the 204 LIBERIAN LAW REPORTS 205 land offered to him by the Government and stated to her that he would be willing to sell it to her for $700. After inspecting the property, the private prosecutrix expressed her willingness to buy the lot, whereupon the appellant asked her for an advance of money to make a survey and put in the necessary boundaries, which he did. The lot was surveyed and concrete monuments placed at the four corners of same. Thereafter the private prosecutrix commenced making payments for the lot in installments, leaving still a balance to complete full settlement of the $700. After advancing the appellant the sum of 535, as the indictment alleges, she refused to pay the balance until a title deed was issued in her favor for the lot. This appellant was unable to do because the. Government of Liberia had not then issued a deed in his favor for said land. The private prosecutrix, considering the failure of appellant to be an act of deception designed to defraud her of her money, made a complaint to Counsellor Alfred Raynes, the county attorney for Montserrado County, who initiated proceedings against the appellant for the crime of obtaining money under false pretenses. At the November 196o term of the Circuit Court of the First Judicial Circuit, Montserrado County, the appellant was indicted by the grand jury for the commission of said crime. At the May 1963 term trial of the case was had and appellant, upon arraignment, pleaded not guilty to the charge. The empaneled jury sworn to try the issues thus joined, after hearing evidence, returned a verdict of guilty against appellant. Motions for new trial and arrest of judgment were denied by the court and final judgment was rendered against appellant sentencing him to a fine of $25 to be paid forthwith together with restitution in the sum of $535. The appellant entered exceptions and prayed for an appeal to this Court which was granted. At the call of this case at the present term of Court, fol- 206 LIBERIAN LAW REPORTS lowing a regular assignment thereof, the Republic of Liberia failed to appear to contest the appeal. Appellant having appeared through Counsellor A. Garga Richardson, trial of the appeal was commenced. On the 9th of November, 1965, appellant’s counsel filed a motion for diminution of record, claiming the omission from the record certified to this Court of the following documents : (r) a warranty deed from Richard Bedell and wife to Samuel Dean for three and one-half acres of land situated in Sinkor, Monrovia; (2) a surveyor’s certificate in favor of Samuel Dean for seven lots in Sinkor, Monrovia; (3) a blank deed for seven lots situated in Sinkor which should have been signed but was not signed at the time it was made profert. Appellant contended that these documents were regularly introduced, identified, marked, confirmed, and admitted into evidence and that their omission from the record would tend to prejudice this case before this Court. He concluded said motion with a prayer that an order be sent to the court below commanding clerk of that court to supply the missing records. Relying upon the bona fides of appellant’s counsel’s submission, the clerk of the Circuit Court of the First Judicial Circuit, Montserrado County, was immediately summoned before this Court to show why this omission in the record existed, if at all there was an omission. We must here observe that appellant’s counsel commenced argument of his appeal without reference to the motion he had filed until the Court’s attention was called thereto by the clerk. Under our procedure, such a motion had to be disposed of before the hearing of the appeal on the record could commence. When queried by the Court concerning this strange and unprecedented behavior, counsel stated that he thought that the missing record had been transmitted to this Court since the filing of his motion. It turned out, however, that the information which he gave to the Court, apart from being grossly LIBERIAN LAW REPORTS 207 misleading, was tainted with deception and hypocrisy in that, as revealed by the clerk of the Circuit Court of the First Judicial Circuit, the identical record that counsel had alleged to be deficient had been taken by him from Mr. Isaac Woods, the retired clerk of Court and surrendered to one of the administrative assistants to the President of Liberia to be used in an investigation at the Executive Mansion; and neither the original nor any copy thereof had been returned to the clerk’s office. It seems rather ludicrous for counsel to have waived argument on the motion for diminution of record in this indirect way by proceeding to the argument of his appeal as though no such motion had been filed, nor the material documents he claimed to have been missing from the record produced by the clerk of Court, especially so when he admitted being the one who took said documents from the office of the former clerk of Court Isaac Woods and surrendered them to one of the administrative assistants to the President. We must therefore conclude that the motion was filed with a design to mislead this Court; and for this act, without prejudice to either of the parties in this case or the resolution of the issues involved herein, we penalize the counselor by a fine of $so to be paid forthwith. Now to the case. Traversing the bill of exceptions containing the assignment of errors complained of, we consider it necessary to bring under our consideration the portion thereof which attacks the jurisdiction of the trial court over the subject matter, namely the charge of receiving money under false pretense, which, according to appellant’s counsel, could not be sustained against his client even if the allegations contained in the indictment were true. The record reveals eight or more receipts successively dated and made out to the appellant by the private prosecutrix showing payments for one town lot in Sinkor near Monrovia aggregating the sum charged in the indictment. The record also shows that preliminary to these successive 208 LIBERIAN LAW REPORTS payments was an approach to appellant by the private prosecutrix through Mr. Coker A. J. George, for the purchase of one town lot in Sinkor near Monrovia, and not a spontaneous offer by appellant to induce the private prosecutrix to make the cash advances she made to him. Appellant contends that under the circumstances his inability to convey the property bargained for could not constitute ground for conviction of obtaining money under false pretense and that any obligation on his part arose out of a civil contract which could only be enforced by action for damages or specific performance. To resolve the question as to which form of proceeding would be maintainable, let us take recourse to the following statutory definitions. The crime of obtaining money under false pretense is defined as follows in our Penal Law. “Any person who makes false representations, with a fraudulent design to obtain money, goods, wares or merchandise with intent to cheat another, or a representation of some fact or circumstance alleged to be existing calculated to mislead which is not true or does not exist, with intent to cheat or defraud another of his goods, wares, money, merchandise or other property of value, is guilty of obtaining money under false pretense and punishable by a fine of not more than one hundred dollars; he shall be required to make restitution of the money or thing of value obtained.” 1956 CODE 27 :302. Actions for specific performance are defined and subdivided as follows : “(b) Actions for specific performance in which it is sought to compel the respondent in pursuance of a contract into which he is alleged to have entered, to perform some act other than the payment of money. Such actions are referred to briefly as actions for specific performance.” 1956 CODE 6:163. LIBERIAN LAW REPORTS 209 Under the above-quoted statutory provisions a fraudulent design or intent forms the basis and is an indispensable element to a successful prosecution for obtaining money under false pretense, whereas intent is not an element of an action for specific performance of a contract. Since the record certified to us is the guide by which we must determine whether this case involves obtaining money under false pretense or specific performance of a contract, we must rely on the testimony of the private prosecutrix, the appellant himself, and Mr. Coker A. J. George, who were the only participants in the negotiations for the sale of the property to the private prosecutrix by the appellant. According to the record, the private prosecutrix was taken to the site of the property for inspection thereof before she commenced making the installment payments. Also in the record is a letter dated December 12, 1958, wherein the late Honorable Thomas E. Buchanan, then Secretary of Public Works and Utilities, wrote as follows : “I suggest that we assign a piece of land for Mr. Samuel Dean somewhere in Sinkor of equal dimension and value. I have instructed the Division of Surveys, Department of Public Works and Utilities accordingly and Mr. Samuel Dean can contact the Director of this Division for more information and final arrangements.” The letter was addressed to appellant’s attorney in response to an inquiry about the property in question and clearly negates the existence of any fraudulent design or intent on the part of appellant by showing that he had negotiated a bona fide arrangement with the Government to acquire the property in question with the intent of conveying same to the private prosecutrix. We must conclude that the transaction in this case involves a contract between the appellant and the private prosecutrix which could be enforced only by a civil action 210 LIBERIAN LAW REPORTS and could not properly constitute the basis of a criminal prosecution for obtaining money under false pretense. The verdict of the empaneled jury and the judgment confirming it are accordingly hereby reversed and the clerk of this Court is directed to send a mandate to the court below informing it of this decision. And it is hereby so ordered. Judgment reversed.