ZOE BANJOE, Appellant, V. REPUBLIC OF LIBERIA, Appellee.
APPEAL FROM THE CIRCUIT COURT, FIRST JUDICIAL CIRCUIT,
MONTSERRADO COUNTY.
Argued November 1, 2, 1977. Decided November 25, 1977.
- Before the Supreme Court can uphold a judgment against appellant in a murder case, his responsibility for the death of the decedent must have been proved beyond a reasonable doubt.
- The testimony of a layman who lacked adequate medical qualifications falls short of the expert medical evidence which the law requires to establish the cause of death in a case of homicide by shooting.
- In a prosecution for murder by shooting where there was no autopsy performed on the bodies of the decedents and no qualified explanation of the cause of death, there is insufficient evidence to support a conviction.
This was an appeal from a conviction for murder committed by shooting. The Supreme Court held that there was insufficient evidence to prove beyond a reasonable doubt that the two decedents were killed by defendant’s shotgun, especially since it appeared that the deaths might have occurred as a result of shots fired by soldiers and policemen pursuing him. The judgment of conviction was reversed.
Nelson Broderick for appellant. Jesse Banks for appellee.
CHIEF JUSTICE PIERRE delivered the opinion of the Court.
This case has come up to us on appeal from the First Judicial Circuit in Monrovia, where Zoe Banjoe, the appellant, was tried for the alleged murder in January 1976 of two persons—Benjamin Samor and Amadu. The death of these two persons is alleged to have been brought about by Zoe Banjoe’s shooting in an attempt to kill one Edwin Sando, a former police officer, who he claimed had tormented and harassed him a year before, and who was dismissed from the force, and who had since his dismissal resorted to persecuting him. This, according to the story told by Zoe Banjoe, had provoked him to try to kill Sando for his own safety. The full story culled from the records is told later in this opinion.
Zoe Banjoe was arrested for the alleged murder of the two decedents, and the indictment charges in effect that on January 24, 1976, at the General Market in the City of Monrovia, he, the said Zoe Banjoe, having armed him self with a Remington single-barrel 12-gauge automatic shotgun, Model No. 1 100, bearing Serial No. M-934312V, the same being a dangerous and deadly weapon loaded and charged with bullets and gunpowder, did unlawfully, purposely, wickedly, willfully, maliciously, deliberately, feloniously, premeditatedly, and with malice aforethought point at, aim at, and shoot and wound the aforesaid Benjamin Samor, Amadu, and 34 others whom the said indictment names. It charges that all of these persons received upon various parts of their bodies gunshot wounds inflicted upon them by the same Zoe Banjoe, contrary to the statute laws of the Republic, and against the peace and dignity of the State.
The indictment charges further that Zoe Banjoe aforesaid having discharged the said Remington 12-gauge shotgun at the decedents as mentioned hereinabove, namely, Benjamin Samor and Amadu, they the said decedents, sustained mortal wounds and injuries on divers parts of their bodies, and that from said mortal wounds they did instantly die, thereby the crime of murder the aforesaid Zoe Banjoe did do and commit, contrary to the form, force, and effect of the statute laws of Liberia in such cases made and provided, and against the peace and dignity of this Republic. That in effect is what the indictment charges.
Witnesses were called on both sides, and they deposed before a jury duly selected, sworn, and empanelled, and were cross-examined. Zoe Banjoe testified on his own behalf denying that his gun had killed the decedents, and his testimony will be recited in this opinion. After argument of counsel for both parties, the jurors were charged and retired to •their room of deliberation, from whence they returned a verdict of guilty, to which the defendant excepted and from which he announced appeal to the Supreme Court. The jurisdictional steps incident to appeal were taken, and the case is now before us on a bill of exceptions containing twelve counts.
Our Criminal Procedure Law provides that in all cases of violent death, including death by shooting, the coroner shall have the body examined at an inquest over which he shall preside with a jury of fifteen persons, and at which he shall have authority to compel the appearance of a medical practitioner to determine the cause and manner of death.
“It shall be the duty of . any government official or other person who learns of a death to report it to the coroner for the county, territory, or district in which the body is found, if he has reason to believe that the deceased: (a) died violently, that is, by homicide, suicide, or accident. . . .
“Upon being notified of a death of the type described in the preceding section, the coroner shall go to the place where the body is, take charge of and examine it, record all material facts and circumstances surrounding the death, and take the names and addresses of all witnesses. He shall convene at that place a formal inquest with a jury of fifteen persons in the course of which inquest the coroner and jury may hear the testimony of witnesses. Any such testimony shall be reduced to writing by the coroner or a clerk appointed by him and shall be included in the report required by section 7-5.
“If the coroner is not himself a medical practitioner, he shall have the authority to compel any medical practitioner resident within his jurisdiction or the medical practitioner most convenient to the place of investigation to assist him in examining the body of the deceased.” Rev. Code 2:7.1-7-3.
According to the records certified to us from the trial court, no coroner’s inquest was held; no medical doctor examined the bodies of the deceased; hence there is no medical report of what was the cause of decedents’ deaths. It is assumed that these decedents died of gunshot wounds inflicted by appellant Zoe Banjoe during his admitted shooting in the market place on January 24, 1976; but this assumption cannot amount to proof, and certainly cannot be used to determine whether or not Zoe Banjoe must be punished for the deaths of these two persons. Before the Supreme Court can uphold a judgment against the appellant in a murder case, his responsibility for the death of decedent must have been proved beyond the shadow of a reasonable doubt.
Especially do we hold this to be necessary in this case, since the appellant admits, as will be shown later, that he did shoot with his Remington shotgun three times, but that the shots which killed the decedents did not come from his gun, but rather came from the weapons being fired by soldiers and policemen who were shooting at him in the crowded market place on that occasion.
While it is true that there was no corroboration to this part of appellant’s testimony, and while it is also true that the uncorroborated testimony of one accused of crime is not sufficient to acquit, Zaiglor-Or v. Republic, 2 LLR 624 (1927), we feel that under the circumstances it was incumbent upon the prosecution to have rebutted this part of the defendant’s testimony. And while it might be true that his admission of shooting in the market place would have, according to some authorities, necessitated his having to prove that it was not his weapon that killed, the most positive means of proving this would have been by the performance of autopsies on the dead bodies. We do not need to belabor the point that failure to have had the autopsies performed according to law cannot be made the responsibility of the accused. How else could it have been positively determined what kind of weapon killed the decedents without removing the bullets and examining them, as the law requires? But this was not done ; nor were the bodies examined, nor was Zoe Banjoe’s insistence that his gun did not kill the decedents rebutted, as also should have been done. None of these necessary steps was taken, even though competent medical skill was available at the J. F. Kennedy Memorial Hospital in Monrovia, where surgeons and pathologists are always on duty.
“The coroner may, if he is unable to ascertain the cause of death by preliminary examination, perform, if he is a competent medical practitioner, or authorize to be performed by a competent medical practitioner, an autopsy on the body of the deceased for the purpose of determining the cause and circumstances of death. Every such autopsy must be witnessed by two credible and discreet residents of the county, territory, or district in which it is performed, and the coroner shall have the power to compel their attendance by subpoena.” Rev. Code 2:7-4.
The report of the coroner must in every case be submitted to the prosecuting attorney, and based upon it he prepares the charge against the accused. Since the report must state the time and every circumstance of the death, and the conclusion of the coroner and the jury as to its cause, there would be no latitude left for doubt where all of this information necessary to secure a proper conviction of the accused for the commission of the crime is presented. Id., 7-5.
But in this case there was no coroner’s report; no autopsy was performed, and no medical report of any examination of the bodies was put in evidence; no doctor was called to testify at the trial to explain the “dead on arrival” contained in Dr. Cooper’s letter of March 29, 1976, found in the record and addressed to E. Winfred Smallwood, County Attorney for Montserrado County. The relevant portion of that letter reads as follows :
“Dear Hon. Smallwood :
“This is to acknowledge receipt of your letter of March 22, 1976, requesting a medical report on the several persons involved in the Zoe Banjoe’s shootout on January 24, 1976, at the General Market. Listed below are the individuals who were treated at the Emergency Room of the John F. Kennedy Memorial Hospital.
“Benjamin Samor and Amadu were dead on arrival. [Emphasis the Court’s.]
“The following persons were treated for superficial wounds and discharged in satisfactory condition.’
Then follows a list of 34 names, showing opposite each One the nature of the wound sustained, and its place on the particular part of the victim’s body.
The purpose of this letter being put in evidence in this murder case is not quite clear, because it does not support the charge of murder; it merely reports that two persons were received at the hospital with 34 wounded, and that these two persons were dead on arrival. The determination of the cause of their death, which should have been the reason for putting this document in evidence in a murder case, was never mentioned, nor does the document state that the two bodies were ever examined.
It is significant that in some cases the letter made reference to minor lacerations, minor injuries, and in one case to injury sustained by one of the injured persons hitting himself against a “parked car while running during the shoot-out.” Therefore, not all of the injuries were caused by gunshot wounds. It is also significant that the report of the examination of 34 injured persons is so detailed, and yet no effort seems to have been made to show what kind of shot had caused the deaths of the two persons who were also taken to the hospital along with the wounded ; and especially so in view of the fact that this letter of Dr. Cooper, the Chief Medical Officer of the hospital, was put in evidence by the prosecution to secure conviction of the accused for first degree murder. But then, according to the tenor of Dr. Cooper’s letter, it seems that no request was ever made by the State for an autopsy. “The cause of death of a person is considered so within the range of scientific knowledge that medical expert testimony is admissible as to such cause; or as to the different ways in which the death might have been caused, that death did or did not result from a given wound or injury, which of several bullet wounds was the most fatal where a person died after being shot several times or how long a person has been dead.” 2 Underhill, Criminal Evidence, 796 (5th ed., 1956).
“A licensed physician but not a graduate, and not having studied surgery, and not familiar with gunshot wounds was not qualified to give opinion as to cause of death of a person who had been shot.” Smith v. State, 99 S.W. 100 (Tex. Crim) .
Therefore the testimony of a layman, who lacked adequate medical qualification, must be held incompetent to establish the cause of death of a gunshot victim in a murder trial. In this case prosecution’s witness David Kakula testified that he saw Zoe Banjoe shoot and kill the decedents, and that he saw the gunshot wounds on the bodies of decedents, and that said wounds were similar to that he had sustained. Here is the testimony of David Kakula found in the record for Monday, May 31, 1976: “Q. Mr. Witness, since you have placed on record that you were present at the episode in which one Mr. Zoe Banjoe is allegedly involved and now has been indicted for murder by the State,
did you see Banjoe shoot and kill Sando and Amadu the alleged decedents?
“A. Yes, I saw him kill the people with my two eyes.
‘(Q. Since you say you saw the two bodies, how come you know they were shot by the defendant in the dock?
“A. When I was taken in• the bus after being wounded by the defendant in the dock, the two bodies were also brought in the bus. I observed that the same gunshot wounds that was inflicted on me was on the dead bodies.
“Q. How do you know that the two bodies that were dead, whether they were Samor and Amadu since you did not know them?”
This question was objected to and the objection was sustained. According to this witness his certain knowledge as to the defendant/appellant’s responsibility for the death of the two decedents hinged upon the fact that the dead bodies were transported in the same vehicle which took him and other wounded to the hospital, and that the wounds he saw on the bodies while they were being transported in the vehicle with him, were similar to those he had sustained. Could we uphold a judgment in a murder case on such testimony? This testimony falls short of the expert medical evidence which the law requires to establish the cause of death in a case of homicide caused by shooting.
Besides the absence of a medical report as to the cause of death, not a single spent shell of the cartridges fired during the shooting was put in evidence. The gun used by defendant/appellant was an automatic single-barrel Remington shotgun 12-gauge, according to the indictment; this gun was marked by the court “PRO-I.” We know that a shotgun cartridge carries fine shots or pellets used in shooting birds, and buckshots used in hunting larger game. The records show that a bag containing cartridges was taken from the accused when he was captured, and the court marked the bag containing the cartridges “PRO-2″ and admitted it in evidence. Whether the cartridges in the bag were fine shots, or buckshots, or any other kind of shot, is not disclosed in the record ; but during his argument before us, counsel for the prosecution/appellee insisted that the murder gun marked by the court ‘ ‘PRO-I” fired a single bullet from this gun which had hit one of the decedents and blown out his brains.
This phase of the testimony is important to the fair determination of this case, because there is the question as to whether a single-barrel shotgun can take two kinds of cartridges in the same barrel; that is to say, a cartridge carrying pellets, whether fine shots or buckshots, as well as a cartridge carrying a single bullet. Such a bullet would have to be the size of the barrel of the gun which is shown to be 12-gauge. The question then arises: It is true that a single bullet had blown out the brains of one of the decedents? We have found in the record testimony of one witness that shows this.
Here is relevant portion of that witness’s testimony as it appears in the record. On Monday, May 31, 1976, Kondua Nyanquay was cross-examined as follows :
“Q. Were you present and saw for yourself defendant shoot and kill any person?
“A. I saw with my own eyes when he shot and killed a little boy.
“Q. What was the name of the little boy if you know?
“A. I do not know his name.
“Q. Tell us if you observed any wound or wounds on the body of this boy you say you saw the defendant shoot and kill; what part or parts of the body did you see wounded?
“A. I saw his head broken and all the brains were out.”
If this testimony can be taken as being the truth, then every effort should have been made to ascertain the possibility of pellets from the alleged murder weapon, the 12gauge shotgun, breaking the decedent’s head for “all the brains” to come out. Was it at all possible for pellets, even buckshots, to have broken the decedent’s head sufficiently to have led to this result? Had an autopsy been performed as the law required, this unanswered question would have been resolved to the satisfaction of all concerned. We would like to here remark that, “the primary duty of a lawyer engaged in public prosecution is not to convict, but to see that justice is done.” Rule 4, Code of Moral and Professional Ethics.
It must be borne in mind that the accused had testified to the effect that while he was shooting at Edwin Sando, a soldier and policeman were shooting at him as he ran into the market place in pursuit of Sando, as we shall see later. We know that normally neither soldiers nor policemen in Liberia carry shotguns, but rather rifles and revolvers respectively; and both of these weapons fire powerful single bullets, especially the soldiers’ rifles.
So there is a doubt as to whether the two decedents were killed by pellets from the alleged single-barrel 12-gauge murder weapon marked by the court “PRO-I,” or by a single bullet which could not have been fired from this gun ; and we also know that doubts which arise in the trial of criminal cases must always operate in favor of the accused. But if an autopsy had been performed as the law quoted hereinbefore required, there could have been no room for doubt of any kind on this important point.
When M. Edwin Sando, the dismissed police officer who, according to the accused, had provoked the shooting which took place in the market place that Saturday afternoon, came to the witness stand as one of the prosecution’s witnesses, he testified that as a police officer he was assigned to the area in which the accused lived, two years before the shooting incident. He was informed that Zoe Banjoe, the accused, was in possession of a pistol, later discovered to be stolen. He sent someone to investigate if the accused carried a license for the gun, and found the information of Banjoe having the gun to be true. The officer sent to investigate returned with the pistol and reported that Zoe Banjoe had explained that the gun had been pawned to him for $10 by one Mr. Boima Passawe, who later sold it to him for $45. Officer Sando took possession of the gun on the ground that neither Zoe Banjoe nor Passawe had a license, and he informed them that he would have to report the matter to his superiors. He informed Zoe Banjoe that the gun had been stolen, but that the $45 he had spent to buy it would be returned to him by Boima Passawe.
According to Officer Sando, Zoe Banjoe had promised to report to the police station the next day, but failed to do so. He (Sando) asked Passawe for Banjoe’s $45 and Passawe promised to return the money. Just at this point it might be of interest to comment that although Police Officer Sando testified that the gun in question had been stolen by Passawe and sold to Zoe Banjoe, up to now the police had taken no step to apprehend a known thief, but instead held the fruit of crime, and allowed Passawe to promise to return Banjoe’s $45 and remain at large. They thereby attempted to compromise a criminal act and thus clearly condoned a felony committed by a police officer, whose duty it was to arrest for crime whenever and wherever he found it, leaving the .hearing and determination of the matter to competent authority.
A week later, according to Officer Sando’s own story, Zoe Banjoe complained against him to the effect that this offcer had sold him a government gun, that he had been arrested by Sando, and that he spent money in connection with the matter. Quoted hereunder are Offcer Sando’s own words as he testified on the witness stand :
“1 then called Monah Sando [the person to whom Banjoe had reported the police offcer] for us to meet Mr. Banjoe and when we got to his house he was in the market selling. I waited until evening at about 6 0’clock P.M. I called Agent Daniel Tweh of the C. I.D. and I called Mr. Abu Ploster including myself ; we went to Mr. Passawe’s place and invited him to the zone to come along with the gun. I stopped at Mr. Banjoe’s house and asked him to go with us. Passawe and Banjoe followed me. When we got to the offce I asked Mr. Passawe to give me a written statement in connection with the gun. I called a uniformed police offcer to take Mr. Passawe’s statement ; I also called another one to write down Mr. Banjoe’s statement. Mr. Banjoe refused to give a statement. I then showed him the gun and he said it was the gun that I took from him. I asked Mr. Banjoe that since it was his gun he should produce his license for it; he told me that he was not saying anything but that I should let him go. I said no. Passawe and Mr. Banjoe were detained for illegal possession of firearms and illegal sale of firearms.”
It is strange that although the police had known for a week up to that time that the gun in question had been stolen, no charge was entered as to the theft. However, according to this police officer’s story, this phase of the matter ended with his having to return $10 which he had taken from Zoe Banjoe in connection with this gun; the money was returned to Zoe Banjoe who issued a receipt for it. But this did not seem to be the only amount taken by Police Officer Sando, because he was eventually dismissed from the force, as a result of a written report made by the accused.
This story told by Police Officer Sando covers a period of more than a year, between the time when he got to know that the accused was in possession of the pistol and the shooting incident growing out of it which took place in January 1976. In that time the accused had threatened to sue the police officer for some money illegally taken from him, and in an investigation held at the Ministry of Justice he was advised to collect his money from Police Officer Sando by lawsuit. The whole Sando testimony is a story of sordid police irregularity and complicity in crime, with Zoe Banjoe being used by a police officer as a victim of extortion and blackmail.
Officer Sando told of how Special Security Service Director Clarke had held an investigation into the matter of Zoe Banjoe’s report against him, Boima Passawe, and Abu Ploster. They were detained and later turned over to the Ministry of Justice, when they were arrested for defrauding and cheating and sent to jail. They filed bonds and were released. But Sando’s story has confirmed the mistreatment which Zoe Banjoe suffered at the hands of the police previous to the shooting incident of January 1976. A part of his testimony on cross-examination follows :
“Q. Is it not a fact, Mr. Witness, under your oath, that after Boima Passawe sold the pistol to Zoe Banjoe for $45 and you heard that Zoe Banjoe was illegally in possession of a pistol, you took the pistol from Zoe Banjoe and returned it to Boima Passawe, who had already sold it to Zoe Banjoe?
“A. Yes.
“Q. And you did that as an officer of the law, Mr. Witness ?
“A. Yes.”
Here was a police officer admitting that he had returned stolen property to the rogue whom he had arrested, and that he had done so in his official capacity!
The State rested oral testimony and offered evidence marked by the court “PRO-5.” The defense objected to its admission on the grounds: (1) that under the best evidence rule, the medical report written by Dr. Cooper should have been identified and testified to by the doctor, instead of his secretary; (2) that it had not been shown that Dr. Cooper was not available to testify; (3) that it had not been shown that due diligence had been used, and a subpoena had been issued for him and returned by the ministerial officer. The defense contended that to admit the medical report into evidence without allowing Dr. Cooper who had prepared it to testify, would be depriving the defendant of his right to cross-examine on the document. The objections of the defense were overruled ; the evidence was admitted, and the State rested its case.
Zoe Banjoe, the accused, is shown by the records to be a man who sold in the market place for a livelihood. The record shows that he bought a pistol from one Boima Passawe for $45 ; that after the purchase of the gun, Police Offcer Edwin Sando called to see him at his home in company with Passawe who had been arrested and handcuffed for stealing the gun; and there the police officer questioned the accused as to how he had come into possession of the weapon. Zoe Banjoe admitted that the gun had been pawned to him for $10 and later sold to him for $45, but that if he had known that the gun was government property and stolen, he would not have bought it from Passawe.
Police Officer Sando then informed Zoe Banjoe that he was arresting him for receiving stolen goods. Banjoe entreated the officer not to take him to the police station because he had not known the gun was government property. The officer agreed not to go through with the arrest if Zoe Banjoe would give the officer $10, and the officer left taking his prisoner Boima Passawe and the gun with him.
Zoe Banjoe testified that when Officer Sando and Boima Passawe “got outside, he released the handcuffs from Boima Passawe. Edwin Sando then took the gun and gave it back to Boima Passawe, and gave him $2 in addition, and said to him, ‘Go and try again.’ ‘ Some time later according to Zoe Banjoe, another offer was made to him by one Momo, that he buy another pistol. Zoe Banjoe’s story appears in the record :
“Then Momo came to me, and said, ‘Oldman, I see something; look at it. He showed me this gun. I then said to him, ‘Who sold you this gun?’ He said, ‘Boima Passawe is the one who sold the gun to me.’ I said to him, ‘Let me see it.’ I looked at the gun. It was the same gun that was sold to me and taken away from me. I said to myself, ‘This is the identical gun just taken away from me.’ However, I said to him, ‘Momo, call me Boima Passawe so I can find out from him if he has two of these pistols because I myself want one.’ When Boima Passawe got before me I asked him, ‘Boima, you who were handcuffed just now and they were carrying you to prison, you are the one who come and sold this gun to this man?’ Right away he got vexed. I then said to Momo, ‘That gun is trouble gun.’ “
Zoe Banjoe testified that he reported what had happened to Momo, the police officer’s brother-in-law; he complained that Officer Sando had wronged him by taking his pistol from him on the ground that it was stolen government property when this was not true, because he had given the gun back to Boima Passawe, who had now sold it to another man. Zoe Banjoe then demanded the return of the money he had paid for the gun, and Police Officer Sando promised to give Banjoe his money back. Zoe Banjoe’s testimony continues :
“In the night when I looked, Edwin Sando and Abu Ploster plus many other people, but I do not know them, I only know Abu Ploster and Sando and Boima Passawe, rapped at my door. When I opened the door Edwin Sando gave the order to Abu Ploster and others to have me arrested because I am a rogue, and I scandalized Edwin Sando’s name. Sando’s orders were : ‘When you all arrest him you all must whip him all the way to the C. I.D. office in Point Four and jail him there.’ And his orders were carried out.”
This part of Zoe Banjoe’s testimony has not been denied. A pathetic story of police connivance in crime and a trumped-up charge against an unfortunate man, whose only offense seems to have been his effort to protect his rights against an avaricious and criminal-minded police officer. But what had Zoe Banjoe done to have warranted such treatment at the hands of the police?
The services of a lawyer were employed, and Zoe Banjoe was released from police custody. Then followed a series of investigations ; one of them in particular, referred to in Banjoe’s testimony, was conducted by Gono, head of the C. I.D. Banjoe’s testimony continued :
“When I got there that morning he gave his decision that I got best. Then I said, ‘Director Gono, all the money that I spent in this gun matter I want for this man to pay, Edwin Sando.’ Gono then asked me, ‘Oh, because I gave you best you are not satisfied with that; then you are contending about money? O.K. I will give you money just now.’ He left me in his office and went out. When he returned I saw him with two men, and he ordered them and said, ‘Carry this man and jail him. I don’t want to see him in my office.’ I then asked Gono, ‘What have I done, you order these men to carry me?’ Gono answered me and said, ‘You got best and you contending about money that Edwin Sando must pay. For that reason I am locking you up.’ ‘
Once again Zoe Banjoe had tried to protect his rights, and again had been paid for his efforts by being thrown into jail. The Chief of C.I.D. admitted that the man had been wrongly treated but still ordered him imprisoned, because he had asked that the police return the money which had been extorted from him. The Zoe Banjoe story will last a long time in the memories of the citizens of this community and it should be a lesson to all of us.
As a result of the treatment Zoe Banjoe had received from the police up to this point, he decided to sell his house and all that he had in the country and go to Freetown, Sierra Leone, to live. According to Banjoe, Sando went to his house that 24th day of January and began abusing him. His testimony reads :
“I said to Sando, ‘Get from before my house.’ I said, ‘All this matter that we have had, the first abusive words that you abused me hurt me bad and I have decided to leave this country. Even though because you hear that I am leaving the country because of your troubling me; and I have sold all of my things because of you, you cannot let me go in peace but keep on troubling me? So since you have come back to abuse me today, I will follow you.’ . I did not plan in my mind in the beginning to buy that gun to kill Sando. I did not buy the two packets and four extra shots just for Sando. I bought these shots and gun to carry along with me to Freetown, Sierra Leone. Where I was going is on the new road leading to Freetown, Sierra Leone, and since the man knew the place I wanted to follow him. I then told Sando, ‘If you do not get from before my house, I will move you from there.’ My heart got spoiled, then I went in the house took my gun and my bag of shots and came outside. Because he, Sando, was abusing me, and because he, Sando, told me that he was going to kill me. So I said, ‘He has come to kill me.’ So I came outside myself. Some time ago Edwin Sando had shot a man in my presence, and he was having a pistol, too; and since he told me that he would kill me, I would not permit him to shoot first; I would be the first to shoot him.
“So I came outside with my gun. . 1 said Edwin Sando had turned his back running, and I fired behind him. When I fired behind Sando, the people heard the news that Zoe Banjoe has shot. Then the police came from West Point, Zone Two. They starting firing too at me. They were running behind me firing and I was running, too. I had only fired the three shots that were in my gun. The gun takes five shots at a time, but only three were inside, and the three shots that I fired, I did not shoot any more. I was running among the group, and the police were shooting there too. The police that came from the coaltar road with the car, they are the ones who caught me in PI-JA yard. As I have said before, I was going out of Liberia; if Edwin Sando did not go there at my house and continue abusing me, all this trouble would not have been, but he is the cause of all of this. so 1 rest.”
This testimony of Zoe Banjoe was not rebutted, nor was it shaken on cross-examination. The shenanigan of Police Officer Sando and Boima Passawe in setting Zoe Banjoe up to be swindled through the manipulation of the pistol was testified to by Edwin Sando himself while on the witness stand as has béen shown hereinbefore; and although witnesses Lassana Cummings, Jefferson Shannon, John Harvey, H. Wellington Harmon, and others all testified that they did not see soldiers and policemen shooting that day, they also said that they were not present when the shooting began. If they were not present when shooting began, they could not say that soldiers and policemen did not shoot at Zoe Banjoe as he pursued Sando into the market place with intent to kill him.
But all of this is extraneous to the important issue, which is: the positive determination of what weapon actually killed the decedents. Had this been determined by autopsy as the law required, the question of whether soldiers and policemen did or did not shoot would not have needed to be considered. Moreover, the fact that Zoe Banjoe’s admitted shooting might have wounded a number of persons does not necessarily make him responsible for the death of the decedents, if it cannot be proved that the weapon seized from him actually fired the shots which killed, if the decedents died of gunshot wounds. The medical report did not show this. If there is doubt as to this part of the corpus delicti, he must benefit from it.
In Berrian v. Republic, 2 LLR 258, 264 (1916), this Court said that “so careful is the law in deciding upon the guilt of one accused of homicide in deciding whether a man is guilty of the commission of that highest and most heinous of all crimes, that it refuses to convict whenever a reasonable doubt as to the guilt of the prisoner arises.” In Dunn v. Republic, 1 LLR 401 (1903), the Court held that it was necessary in prosecutions for murder that the cause of death should be made out with certainty and that the evidence in support of the essential facts should be so conclusive as to exclude every rational doubt of the prisoner’s guilt. In the Berrian case, supra, the Court, relying upon BOUVIER’SLAW DICTIONARY, defined doubt to be “the uncertainty which exists in relation to a fact, a proposition, or other thing; an equipoise of the mind arising from an equality of contrary reasons.” But doubt as to the criminal agency causing the death of the two deceased persons need not have existed if the autopsy had been performed; or even if Dr. Cooper, the medical expert, who prepared the report alleging that decedents were dead on arrival at the hospital, had been called to testify; or even if his medical secretary who presented the report in court, had been allowed to be cross-examined as to its contents. But attempt to cross-examine her on the contents of the document was objected to, and the objection was sustained.
In Freeman v. Freeman, 8 LLR 187 (1944), where a Dr. J. Abayomi Cole had issued a certificate to the effect that a testator was not of sound mind when he executed a will, at a hearing in the Probate Court in Monrovia Dr. Leo Sajous was called to testify to the contents of Dr. Cole’s medical certificate, although Dr. Cole himself was in Monrovia and available. The Supreme Court laid down the principle in that case, that a witness who is called upon to identify the signature of a written document must be qualified and competent to testify as to its contents. Just at this point there seems to be an unanswered question: With all of the medical authority available at the hospital in Monrovia, why wasn’t a colleague of Dr. Cooper called to testify to the contents of the medical report, if Dr. Cooper himself was not available? But it was never established that Dr. Cooper himself was not available. “The best evidence which the case admits of must always be produced ; that is, no evidence is sufficient which supposes the existence of better evidence.” Rev. Code 1 •.25.6(1).
Sentiment ran wild following the shooting incident which gave birth to this case; but the court cannot allow sentiment to influence its decisions. That there appears to have been unusual provocation which resulted in Zoe Banjoe’s attempt to leave the country to escape persecution by Sando, the former police officer, did not justify his act of wanton disregard for human life to the point that he took the law in his own hands and discharged his gun in and upon a crowd in his attempt to kill his tormentor.
There is no doubt that Sando and Passawe had cheated, blackmailed, and provoked the accused; but that cannot excuse his resort to armed force to vindicate himself. Had an autopsy been performed and expert medical evidence had shown that his gun had fired the fatal shots, we might have upheld a judgment for homicide. But under the circumstances, we find ourselves unable to do so in face of the fact that the cause of death has never been established, even though a medical report was put in evidence. We do not feel that the evidence in this case is sumciently conclusive to warrant confirmation of the sentence of death passed upon the appellant in the trial court; on the contrary, we are of the considered opinion that there is sufficient doubt as to what weapon actually fired the fatal shots to warrant the appellant’s discharge. The judgment of the trial court is therefore reversed, and the appellant is hereby discharged without day. And it is so ordered.
Judgment reversed.