GEORGE SCOTT, alias QUAE, Appellant, v. REPUBLIC OF LIBERIA,

Appellee. APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, MARYLAND COUNTY. Argued April 24, 1967. Decided June 16, 1967. 1. When a defendant in a criminal case elects to take the stand in his own defense, he may be cross-examined on all matters relating to the crime charged, and may not thereafter contend that the testimony elicited from him thereby violated his constitutional right against self-incrimination. 2. Exceptions to the charge of a trial court must be specific, and when not, the Supreme Court will not entertain argument relating to them. 3. Where, as in the present case, it is clearly seen from the evidence that the injuries inflicted upon the decedent resulted from the aggression of the defendant in the heat of passion and without premeditation, the crime is properly manslaughter, and not murder, under the statutes applicable to such cases. 4. When the Supreme Court finds the crime of which appellant is legally guilty lesser than the crime for which he stands convicted, the period of imprisonment to the time of appeal will be computed by the Supreme Court in determining the further period of time to be served. The defendant was charged with murder, having caused the death of the man he suspected of improprieties with his girl friend. The killing occurred during an altercation which suddenly arose when the suspicion of defendant had been aroused for the first time. The jury found him guilty of murder, and an appeal was taken from the judgment of the trial court. Judgment reversed, the verdict of the jury set aside as unsupported by the evidence of guilt of murder and the term already served by appellant having been declared as the maximum for the crime of manslaughter, he was ordered discharged forthwith. Richard A. Diggs for appellant. Nelson W. Broderick for appellee. Solicitor General MR. JUSTICE SIMPSON delivered the opinion of the Court. 13 14 LIBERIAN LAW REPORTS During the month of December, 1961, one Yaouhdi, a female resident of Maryland County, claimed illness. In consequence of this illness she requested tablets from one David King to remedy this situation. King, it is reported, provided medication that remedied her particular malady; however, there was a recurrence, whereupon Yaouhdi decided to again visit King for additional medical assistance. The following morning Yaouhdi set out for David King’s farm, at a place near Biabo Suekeh, in the then Webbo District, Maryland County. George Scott, the appellant in these proceedings, being the boy friend of the patient, felt that he should accompany her ; however, she strenuously objected thereto, stating that since he claimed he wanted his cutlass he should go his way to collect the same and she, in turn, would go to get her medicine. The record reveals that Yaouhdi proceeded to the farm of David King, now deceased, in order to obtain the desired medicine. After attending to other business, appellant set out to fetch his girl friend from the house of David King. Upon his arrival at the latter’s home appellant inquired for Yaouhdi and was told that she was in the room with King. After requesting entry into the room and being refused the same, he proceeded, of his volition, to enter the room. Thereafter, a fight ensued between appellant and King. Getting the better of the fight, � appellant took his girl friend and left the farm. On June 12, 1962, the grand jury of Maryland County found a true bill against George Scott, appellant in these proceedings, indicting for murder. The returns to the writ of arrest show that defendant was arrested on July 3o, 1962, and submitted to the jurisdiction of the court. During the August 1962 Term of the Fourth Judicial Circuit Court, Maryland County, the accused was tried, convicted of murder, and sentenced to death by hanging. A motion for a new trial was duly filed, opposed, and denied. After this, appellant served a ten-count bill of LIBERIAN LAW REPORTS 15 exceptions, and upon these exceptions this appeal has found its way to this court of last resort. The first six counts of the bill of exceptions deal purely with matters of evidence in respect to questions that the court either allowed or disallowed, and which in the opinion of the appellant were legally incorrect and adversely affected his interests. Only count six in our view contains an exception of sufficient merit to claim our attention. Here, it is shown that a question was propounded to the appellant by the prosecution on cross-examination which endeavored to elicit an answer from him in respect to the alleged admissions made by him in the presence of certain persons, to the effect that he did not strike and brutalize the decedent, David King, to the extent of pulling and wringing his testicles. Objections were made by the defendant to this question, but the same were not sustained by the trial court. In the lower court the two grounds given as objections were that the question was unconstitutional and incriminatory. In our view these two grounds may be rightly merged into one, for the question is held unconstitutional if it is incriminatory. As a general rule, one accused of the commission of a criminal act cannot be compelled to give evidence against himself. And where the defendant’s refusal to give evidence after having been accused is predicated upon the advice of counsel, no unfavorable conclusion may be drawn from the failure of the accused to make or deny a statement. 8o A.L.R. 1267; 20 AM. JUR., Evidence, � 572. However, where an accused has determined that it is in his best interest to testify in his own behalf, having entered a plea of not guilty, which is a general issue plea, all facts and circumstances touching the commission of the alleged crime may properly be the subject of interrogations during the course of a judicial proceeding. Count six of the bill of exceptions is, therefore, not sustained. In count seven of the bill of exceptions, defendant complains against the judge to the effect that, after the written 16 LIBERIAN LAW REPORTS charge to the jury had been delivered by the court, the defense then and there took exception thereto. In respect to this count, this Court has often held that where a party to an action objects to part of the charge made to the jury, these objections must be stated with specificity, and where not so stated the court will refrain from taking legal cognizance of the same. In the premises, count seven is also not sustained. Count eight is but a recital of the exceptions taken to the verdict of the jury. The next count concerns itself with the motion for new trial filed by the defense, which, in effect, states that the verdict was manifestly against the weight of the evidence, the law controlling, and the instructions of the court. It is here contended by the appellant that, in view of the charge, the jury should have brought in a verdict for manslaughter and not one holding him guilty of the crime of murder. Count two of the motion held that malice prepense constitutes an essential ingredient of the crime of murder, and where there is a lack of evidence to show the existence of malice aforethought preceding the act that gave rise to the particular death, then the crime, if any, must be manslaughter and not murder. Let us review the relevant evidence in an endeavor to determine whether or not the contention of the appellant is supported by the record. As hereinabove recited, it is shown that appellant and decedent ostensibly bore no ill will one to the other ; instead, appellant was happy about the tablets that had been given to Yaouhdi by the decedent. It is also an uncontroverted fact that at the time George Scott reached the home of David King, he inquired of the whereabouts of his girl friend. Additionally, when he knocked on the door he was told to wait for a while; he did wait as directed and it was only after having been made to wait for a protracted period of time that he eventually decided to force open the door to discover what was going on behind the then closed doors. The evidence has also shown that a fight between the ap- LIBERIAN LAW REPORTS 17 pellant and decedent followed an altercation in respect to the reasons why the appellant had found his girl friend in such a compromising position with the deceased. It was only after this heated exchange of words that a fight ensued, and during this fight that the appellant inflicted several blows upon the body of the deceased. The medical examination of the physician in attendance at the hospital showed that the decedent died as a result of injuries sustained during the affray. The appellant, furthermore, in his testimony admitted that there had been a fight between himself and the decedent. The facts of the existence of the fight have been corroborated by Yaouhdi, who was the only actual eyewitness to the fight. Where do these facts lead us? A man has died ; his death has been caused by wounds inflicted upon his person by another. These wounds were inflicted during an illegal affray between the appellant and the decedent. What does our law say about such an occurrence? It is provided in our Penal Law, 1956 Code 27:233 “Manslaughter.–Any person who : it ‘. Without legal justification or excuse unlawfully kills any human being, malice prepense not appearing from the circumstances; or It 2. While engaged in any lawful pursuit without intent to hurt, negligently kills any human being; or “3. Being the aggressor in any sudden affray, unlawfully kills any human being; “is guilty of a felony and punishable by imprisonment not exceeding five years.” From the law quoted above and its application to the facts that were revealed during the trial, it is clearly seen that the incident was devoid of malice prepense, and, instead, was concerned with an affray in which the appellant was undoubtedly the aggressor. Therefore, both counts of the motion for a new trial should have been sustained by the trial judge, since the evidence adduced could not support the verdict of the jury. Defendant at 18 LIBERIAN LAW REPORTS best could have been adjudged guilty of manslaughter and should not have been found guilty of murder. It is our decision that, since the appellant has been in custody for a period commencing from July 3o, 1962, he should remain incarcerated until July 31, 1967, since the 3oth day of July constitutes a dies non, and on this day he is to be discharged, having fully served the maximum period allowed by law for the commission of the crime of manslaughter. And it is hereby so ordered. Reversed and modified.