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

APPEAL FROM THE CIRCUIT COURT FOR THE FIRST JUDICIAL CIRCUIT, CRIMINAL ASSIZES “A”, MONTSERRADO COUNTY.

Heard: April 22, 1985. Decided: June 20, 1985.

1. A defendant charged with the commission of a criminal offense is presumed innocent until the contrary is proven.
2. Where a plea on arraignment of the defendant is “not guilty”, the onus probandi is on the prosecution to establish the defendant’s guilt, devoid of all reasonable doubt.
3. Although the guilt of an accused may be satisfactorily shown, if there exist any doubt, he is entitled to an acquittal.
4. Murder and manslaughter are all homicide in which the life of a human being is taken by another. Murder is distinguished from manslaughter, however, in that in the case of murder the intent is accompanied with malice aforethought, either expressed or implied, while in the case of manslaughter, although the act which occasioned the death may be unlawful or likely to be attended with bodily mischief, yet the malice, either expressed or implied, which is the very essence of murder, is presumed to be wanting.
5. Manslaughter is committed where, upon a sudden heat of passion, as upon a sudden quarrel two persons fought and one kills the other; it is the unlawful taking of human life under circumstances falling short of wilful or deliberate intent to kill.
6. Manslaughter is involuntary where the person, in committing an unlawful act, not felonious or tending to do great bodily harm, or in performing an unlawful act with proper caution or requisite skill, unguardedly or undesignedly kills another.
7. To constitute the crime of murder, intent with malice aforethought is the essential element, and when alleged in the indictment must be proved beyond all reasonable doubt.

The appellant was convicted in the Circuit Court for the First Judicial Circuit, criminal assizes “A”, Montserrado County, of the crime of murder and sentenced to death by hanging. On appeal, the Supreme Court reduced the charge to manslaughter, holding that the circumstances of the case did not show that in the killing of the decedent, there was malice aforethought, which is an essential element for conviction of murder.
The appellant had been in a fight with his wife and was alleged to have slapped her, causing her to fall to the ground, and to thereupon begin kicking her. The fight had grown out of the denial by the decedent (the appellant’s wife), of appel-lant’s request to have the decedent use her zinc to liquidate certain obligations incurred by appellant. The appellant had testified that the fight had developed suddenly; that following the fight he had gone to work, leaving his wife still alive; and that he had only learned of her death when he was later informed while at work. The Supreme Court held that these facts, while tending to show that the appellant had killed his wife, failed to show the required element of malice afore-thought to warrant a conviction of murder. The Court, in reducing the charge, ordered the appellant sentenced to impri-sonment for five years, retroactive to the first date he was committed to prison.

Roland Barnes appeared for the appellant. The Acting Solicitor-General of Liberia, in association with S. Momolu Kiawu, appeared for the appellee.

MR. JUSTICE SMITH delivered the opinion of the Court.

Upon his conviction in the First Judicial Circuit Court, Criminal Assizes “A”, Montserrado County, for the heinous crime of murder, the appellant announced and perfected an appeal to this Court of denier resort for the review of the judgment of the trial court sentencing him to death by hanging.

During the arguments before this Court, counsel for the appellant waived four counts of his bill of exceptions and narrowed his argument to reduction of the crime from murder to manslaughter, contending that the evidence of the prosecu-tion did not establish the charge of murder. He argued that death, resulting from a blow produced by provocation during a fight, as in the instant case, cannot be considered as murder but rather manslaughter. Therefore, he argued, the verdict of the jury was not supported by the evidence adduced at the trial and hence erroneous and the judgment of conviction for murder rendered thereon should be reversed and the appellant ordered discharged, especially as appellant had already served more than four years in jail from October 20, 1980.
Counsel for the State, on the other hand, argued that although the death of decedent resulted from a fight which ensued between the appellant and the decedent, his wife, yet the appellant was extremely indifferent to the value of human life; that as a result of this indifference, appellant inflicted serious bodily injuries on his said wife; and that it was these injuries which resulted in her death. Counsel for the State argued further that in leaving the scene of the fight and going to work, coupled with his failure and refusal to take his wife to the hospital for examination and treatment, the appellant had committed acts which, in themselves, were suggestive of premeditation and malice aforethought, the two elements which constitute the crime of murder. Hence, counsel for the State argued, the judgment of the trial court confirming the verdict of the empaneled jury, being supported by the evidence, should not be disturbed.
By virtue of the above arguments, as advanced by counsel on both sides, we deem it appropriate to take recourse to the evidence adduced at the trial to determine whether it was murder or manslaughter that was established.
The indictment under which the appellant was tried and convicted charged him with slapping, beating and battering the decedent upon and against her left jaw and other vital parts of her body with such force and violence as to cause internal injuries; that as a result of these acts, the decedent died; and that thereby the crime of murder the appellant did do and commit, in violation of the New Penal Code of Liberia. The indictment also charged that the appellant’s act was intentional, premeditated, deliberate and with malice aforethought.

Under our Criminal Procedure Law, a defendant who is charged with the commission of a criminal offense is presumed innocent until the contrary is proven, and where his plea on arraignment is “not guilty”, the onus probandi is on the prosecution to establish his guilt, devoid of all reasonable doubt. Thus, although an accused’s guilt is satisfactorily proved, if there is shown to exist any reasonable doubt, he is entitled to an acquittal. Criminal Procedure Law, Rev. Code 2: 2.1.
In this case, the appellant having pleaded not guilty, it was incumbent upon the prosecution, under the law, to establish beyond all reasonable doubt every element of the crime of murder, as laid in the indictment and found against the appellant. In attempting to meet this burden of proof, the State produced four witnesses, two of whom, John Howard and James Zuon, were said to have been eye witnesses. The other two witnesses were It/Col. Galarey, an agent of the Criminal Investigation Division, National Police Force, and Isaac Moses, M. D., a consultant in forensic medicine at the John F. Kennedy Medical Center.
Witness It/Col. Galarey testified that his testimony was based on what he was told by the two eye-witnesses, and witness Isaac Moses, M. D., who performed the post mortem examination, told the court and jury that the immediate cause of the death of decedent was the massive abdominal bleeding resulting from a lacerated spleen. He went further to say that the laceration was sustained shortly before death and may have been inflicted by blunt force during the fight.

In summary, the two eye witnesses, John Howard and James Zuon, testified during the trial that the appellant and the decedent were husband and wife who in October 1980 made “fuss” in connection with the selling of zinc belonging to the wife and on which the husband claimed he had paid $7.00; that the husband had demanded that this amount be refunded to him if his wife refused for the zinc to be sold; that as a consequence of the quarrel, a fight ensued between them; that the appellant then slapped his wife on the jaw and she fell to the ground; and that he began kicking her. John Howard testified further that in his attempt to stop the fight, he was bitten by the appellant on his left arm. The witnesses testified also that as a result of the fight, the wife became unconscious and later died; that appellant refused to take his wife to the hospital after she became unconscious; and that he left to go to work, alleging that his said wife was drunk.
Witness John Howard is said to be the brother of the decedent and some of the questions asked on the cross-examination and his answers thereto are as follows:

“Q. Being an eye witness to the fight, please say whether you observed any instrument or deadly weapon being in the possession of the defendant?

1. I didn’t see anything with him.
17. Being present while the fight ensued between the defendant and his wife, tell us, if you know, what occasioned the fight, that is, what gave rise to the defendant and his wife fighting?
1. As I have told you, I was in the house checking the zinc when they started fighting on the outside and I met them fighting, so I do not know what gave rise to the fight.
17. Did I also understand you to say that when you came out of the house, you saw defendant’s wife bleeding from the mouth and she was lying down on the ground even though she was speechless; am I correct?
    1. From inside the house, I met them fighting and it was at this time or juncture that the defendant slapped his wife on her jaw and she fell on the ground and then he started kicking her. It was at this time also that I went to part them and the defendant bit me. When I parted them they did not fight again.

After the State had rested evidence, the appellant took the stand and testified as a witness in his own behalf, as follows:

“In 1980, on October 20, I came from work and went home to my wife and told her that I had credited $30.00 from our club and the members were ‘jamming’ me for this amount. So I asked my wife for us to give my club two bundles of zinc that I had at the house for them to hold until I pay them, but my wife refused. She got up and went to call her people, John Howard and James Zuon, and an old lady named Natty. Upon their arrival at the house, John Howard straightly marched in the house to bring the zinc out. I then asked what was happening? Natty then called my wife and asked her what happened, and in answer, my wife said this stupid John Alfred being so stupid, didn’t even lay his eyes on the bodies of his ma and pa when they died because of his stupidness. I then got vexed and gave her a slap in her ear. I gave her a second slap in her ear. She then turned around and collared me and hauled me to the house and then sat on my feet and grabbed all my whole testicle and my penis and started hauling them. At this juncture John Howard came between us and while my wife was still to my properties (testicle and penis), I bent over almost helpless and I saw his arm thinking that it was my wife’s arm, I grabbed it and bit it in an effort for her to loose me but I came to realize that it was John Howard’s arm which I had bitten. John Howard then said oh John Alfred I came to take you from trouble then you came and bit me? I told him oh I am sorry, but you see your sister holding my nuts and hauling it like rope as though she wants to kill me. This is how we did the fighting. I then left them on the spot as I was jammed to go in the toilet and upon my return from the toilet I met my wife lying down in the kitchen where the fighting had taken place with a lot of women around. I saw them putting alcohol in her face. A Sarpoo tree was in the yard and I saw the women picking leaves from it, grinding it in their hands and putting it in her nose. The women made me to understand that it was cane juice medicine. I told the women who were around there to leave my wife. I then gave Zuon the zinc and he gave me the $30.00 to go and pay the club people. Zuon then told me to haul the zinc to his house which I did. Thereafter, I observed that it was time for me to go to work, but I was feeding my child had by my wife before going to work. While feeding my child, my wife got up from the kitchen, tied her lappa and walked in the room without the aid of anybody. A lady who was present on the scene went in the room to her and told her not to fight me again, and told me to hurry up and go to work. I then got up and went to work. I went back to work and while there, about 11:00 p.m., two ladies arrived at my working place and asked me to open the gate and upon doing so, one of them stocked (sic) me out to open and asked if my wife and I had a fight in the afternoon. I answered her yes. She then asked for my bossman and I told her that he was sleeping. She then said that I should go and wake him up, which I did. After my bossman was up, the soldier told me that my wife whom I fought this afternoon had fainted and was dead. This news had me confused. I then said to the soldiers that to live among strangers is difficult, for since this afternoon my wife and I fought, nobody took her to the hospital (ELWA) which is only five minutes walk from where we live, and why they didn’t carry her there and now you soldiers have come way from Kings-grave and come to me at Joe Bar, Zone 5. At this point the soldiers arrested me and said let us go, and they carried me to Kings grave to our house. When I arrived at my house there were many persons present and one of the soldiers was standing by me by the door and the other went by my wife and listened to her and said that she was still breathing. The other soldier said they would take me to the cell and then come for my wife and take her to the hospital. Since her people didn’t have any time for her, they, the soldiers, will come for her and carry her to the hospital. I was then taken to zone 3 police headquarters. Thereafter, being in jail, I cannot say what happened. This is all I know.”
Although the testimony of appellant remained un-rebutted as to his wife grabbing his testicles, yet the evidence on both sides establishes the fact that appellant and his wife, the decedent, did make fuss over zinc and fought as a result of which decedent sustained injuries and died later. The question that has arisen is whether such a situation like this is tantamount to murder or manslaughter?

Murder and manslaughter are all homicide in which the life of a human being is taken by another. It is murder when the intent is accompanied with malice aforethought, and malice is either express or implied. The distinction between the two crimes is: In manslaughter, although the act which occasioned the death may be unlawful or likely to be attended with bodily mischief, yet the malice, either express or implied, which is the very essence of murder, is presumed to be wanting. Therefore, manslaughter is committed where, upon a sudden heat of passion, that is, if upon a sudden quarrel, two persons fought and one of them killed the other. It is the unlawful taking of human life under circumstances falling short of wilful or deliberate intent to kill. This kind of killing is defined as voluntary manslaughter. It is involuntary where the person in committing an unlawful act, not felonious or tending to do great bodily harm, or in performing a lawful act without proper caution or requisite skill, unguardedly or undesignedly kills another.
From the definition given herein above, and the evidence as summarized, can this Court of denier resort conclude that the crime of murder was committed by the appellant? The answer to this question in the negative. The appellant, under the circumstances as testified to, can only be guilty of voluntary manslaughter. No prudent man can conclude that appellant intended to kill his wife by appealing to her for permission to either sell the zinc or offer it as a guarantee for the payment of the debt he had contracted with his club. Neither can it be said that the appellant intended to kill his wife by slapping and beating her without any deadly weapon and leaving her alive to go to work. The evidence also shows, and it was not rebutted, that decedent abused her husband in the presence of her sister and brother, that this provoked the anger of her husband, and that this led him to slap her, resulting in the fight which ensued between them.

To constitute the crime of murder, malice aforethought is the essential element, and when alleged in the indictment it must be proven beyond all reasonable doubt. Seventy-three (73) years ago, Mr. Justice McCants-Stewart, speaking for this Court in the case Lawrence v. Republic, [1912] LRSC 2; 2 LLR 65 (1912), said: “An element of every criminal offense is intent, and to constitute the crime of murder intent must be accompanied with malice aforethought.” In that opinion, the learned Justice of sainted memory warned all courts of justice that “the dearest of man’s inalienable rights is life. We may deprive him of liberty with only temporary effect; we may deny him the pursuit of happiness, but such denial is not necessarily permanent; but if we take his life, that is the end of all. Courts therefore, while never forgetting the duty to guard with jealous care the rights of litigants in general, should watch with special care every incident of a trial where human life is at stake.”
From the evidence adduced at the trial, and the circumstances attending this case, we are not convinced that the crime of murder was established. We are, however, convinced that the killing of decedent by the appellant was the result of provocation, which resulted in the fight from which decedent died. Hence, the appellant is guilty of manslaughter and is sentenced to imprisonment for a period of five years from the date of his arrest and imprisonment, that is, from October 20, 1980 to October 20, 1985. After this date, the appellant is ordered released from further detention to go without hindrance. And it is hereby so ordered.

Judgment modified; sentence reduced.