WILLIAM N. APPLETON, Appellant, v. REPUBLIC OF LIBERIA, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, MARYLAND COUNTY. Argued November 17, 1952. Decided December 12, 1952. 1. A judge may not amend the verdict of a jury in open court where the issue is one of substance and not of form. 2. Amendment by a judge of a substantive portion of a criminal verdict is ground for ordering a new trial if the defendant was prejudiced thereby. On appeal from conviction of embezzlement, judgment affirmed. Momolu S. Cooper for appellant. eral for appellee. The Solicitor Gen- MR. JUSTICE SHANNON delivered the opinion of the Court. The appellant was indicted, tried, and convicted of the crime of embezzlement in the Circuit Court of the Fourth Judicial Circuit, Maryland County. The records disclose that he was employed by Saba Brothers, a Lebanese mercantile firm. Initially he was engaged as a store clerk in their main store in Harper and was subsequently transferred to Plibo as a factor. After five months employment at Plibo he was found to be short in his accounts to the amount of $1,167.27. Appellant’s employers, alarmed over such a large shortage in such a short space of time considering the smallness of the stock entrusted to him, took another inventory and discovered that appellant had an additional shortage of $79.54. Letters from the appellant to his employers show, that he acknowledged the shortages and begged an opportunity to settle; but, considering the circumstances, LIBERIAN LAW REPORTS 285 they decided to commence prosecution against him which resulted in the above conviction. Our statutes have re-enunciated the common law rule of evidence that : “It shall be the duty of every party alleging the existence of any fact to prove it.” 1841 Digest, pt. II, tit. II, ch. X, sec. 1 ; 2 Hub. 1548. This obligation ordinarily continues to the end of a trial. In the case at bar the shortage in the defendant’s account has been proved by an overwhelming preponderance of evidence buttressed by the appellant’s written admission. The only question to be considered is whether such a shortage constitutes conclusive evidence of criminal conversion by appellant. This Court, in Bowier v. Republic, [1927] LRSC 1; 2 L.L.R. 616 (1927), enunciated the principle that not every “deficit in the account of a factory man” establishes the necessary elements of the crime of embezzlement. The additional principle must here be stated that, where there is a large shortage in a small stock within a short space of time, criminal conversion must be presumed unless the accused can give an adequate explanation. The trial court so rightly charged. The defendant’s explanations merely covered a fractional part of the shortage. Furthermore, the manner in which he tried to explain his use of his principal’s money is so shocking that there is no alternative to finding a mind bent upon mischief to defraud and feloniously cheat another. The evidence is clear and the trial was regular. Appellant has raised an issue as to that part of the charge to the jury wherein the trial judge declared : “However, as the evidence does show that the defendant has been unable to account for the $878.92, fraudulent conversion is inferred and the defendant is guilty of having embezzled from Saba Brothers the sum of $878.92. “I therefore charge you to bring in a verdict in harmony with my instruction given you in this charge.” 286 LIBERIAN LAW REPORTS The jury returned a verdict that the appellant was guilty of embezzlement of $1,246.81, ignoring or not crediting the unsupported evidence of the appellant as to the $222.23, and not following the instructions of the judge with respect thereto. By order of court this verdict was amended to conform to the instructions of the trial judge, apparently in open court, without sending the jury out for further deliberation. Appellant, contending that the trial judge usurped the functions of the jury when he decided upon the effect of the evidence, rightly argues that it is the function of the court to decide on the admissibility of evidence; but it is the function of the jury to decide upon its credibility and effect. A clearer picture of the manner in which the verdict was amended is shown in the final judgment of the trial court from which we quote the following: “After presentation of evidence on behalf of both the plaintiff and the defendant, the jury, upon deliberation thereon, presented in open court a verdict of guilty of embezzlement in the sum of $1,246.81. The verdict not having conformed to the instructions of the court, was ordered amended to show embezzlement of $890.92, in harmony with the instructions to the jury. Which verdict is by this court affirmed.” Appellant submitted in his argument before us that it is not within the province of a judge to amend, or order amended, a jury’s verdict in the manner shown above, since it tends to substitute his mind, and not the jury’s, for the verdict. It is our opinion that, if the verdict of the jury did not conform to the evidence with respect to the amount embezzled, the trial court should have either disbanded the jury and ordered a new trial or given additional instructions and directed further deliberation. To have directed the amendment of the verdict in open court in a matter of substance finds no support in law. This error LIBERIAN LAW REPORTS 287 would have constituted grounds for ordering a new trial had it appeared that any interest or right of the appellant had been prejudiced thereby. But it appears that the amendment of the verdict was in the interest of the appellant since it reduced the amount required for restitution. The evidence against the appellant, his failure to account for the deficit which he admits, and the circumstances which show a criminal intent, allow us no alternative but to affirm the judgment of the lower court; and it is hereby so ordered. 4,ffirmed.