JOSEPH N. BERRIAN, Appellant, v. REPUBLIC OF LIBERIA, Appellee.

ARGUED MAY 3, 1916. DECIDED MAY 6, 1916.

Dossen, C. J., and Johnson, J.

Res gestae—Corpus delicti—Circumstantial evidence—Doubt.

1. Any circumstance or fact surrounding the main or principal fact, and in any degree tending to support or establish that fact, may be admissible under the res gestce rule.

2. Representations of a sick person of the nature and effects of a malady under which he is laboring are receivable as original evidence whether they be made to the medical attendant or to any other person.

3. Declarations or acts accompanying the facts in controversy, as conversations contemporaneous with the facts or the complaint of the injured party both as to bodily suffering and the circumstance of the occurrence form a part of the res gestce, and are admissible in evidence.

4. In prosecutions for murder it is necessary that proof of the corpus delicti should be substantially established before the guilt of the accused can be made out with that legal certainty which excludes every hypothesis of his innocence.

5. The corpus delicti has two parts—the death, and the criminal agency in effecting it. If direct proof of one of these parts is given, circumstantial evidence as to the other part is sufficient provided it be consistent with guilt and inconsistent with innocence.

6. Where the evidence is so uncertain and inconclusive as to raise a rational doubt as to the guilt of the accused this must operate in his favor and a conviction can not be had.

7. In prosecutions for murder the cause of death must be established beyond a reasonable doubt. Dunn et al. v. Republic of Liberia, I Lib. L. R. 401.

Mr. Chief Justice Dossen delivered the opinion of the court:

Murder—Appeal from Judgment. This case is appealed from a judgment rendered against the appellant, defendant in the court below, in the Circuit Court, first judicial circuit, of Montserrado County, at its February term, A. D. 1916. The records filed in the case exhibit the following facts, to wit :

At the August term of the aforesaid court, A. D. 1915, the prisoner now appellant, was indicted by the grand jury of the aforesaid county for committing the atrocious crime of murder with malice prepense. The means alleged to have been employed in the commission of the crime was charged to be a certain poison unknown to the jurors, and the persons upon whom it was charged that murder was committed were Anna Capehart and Martha Johnson, both of the settlement of Dixville in the aforesaid county. Upon arraignment the prisoner pleaded “not guilty,” whereupon a jury was empanelled to try the issue raised, who, after hearing the evidence, returned a verdict of “guilty.” The counsel for the prisoner excepted to the verdict, and moved for a new trial which was granted and the case continued to a subsequent term. At the February term of the said court A. D. 1916, the case came on for re-trial when a verdict of “guilty” was again returned against the prisoner. Counsel for prisoner excepted to this verdict also and again moved the court for a new trial, which motion was denied by the judge of the court and sentence of death was pronounced upon the accused. It is to this verdict and judgment as well as the several rulings of the court below against the prisoner in the progress of the trial that exceptions were taken and the case appealed to this judicature for review. This briefly is a synopsis of the history of the case as appears from the records filed.

We now proceed to consider the points submitted for review as set forth in the bill of exceptions.

The first exception is taken as follows :

“Because on the 15th day of February 1916, prisoner’s counsel objected to witness George Capehart’s stating any conversation with his wife, the deceased, as it would be hearsay ; and Your Honor overruled the objection to which prisoner excepted.”

It is contended by counsel for prisoner in his brief in support of this exception, that the declaration made to witness George Capehart by his wife Anna Capehart, deceased, was not made under such circumstances and at such a time as would bring them within the rule of dying declarations and that therefore it should be rejected as hearsay, and the case of Dunn et al. v. the Republic of Liberia (I Lib. L. R. 401) is cited in support of this contention.

From inspection of the records we find that the evidence objected to consisted of a conversation alleged to have passed between the witness and the deceased referable to her feelings after eating a certain meal which brought about the sickness from which it is averred she afterwards died. This evidence was introduced as a connecting link in the chain of circumstantial evidence by which the State sought to connect the prisoner with the cause that produced the death of the deceased. We are of opinion that it was admissible as forming part of the res gestce of the case ; its credibility and effect being a matter for the consideration of the jury.

We think it is well settled by the weight of authority on criminal law that any circumstance or fact surrounding the main or principal fact tending in any degree to support or establish said fact may be admissible under the res gestce rule.

The comprehensiveness of this rule is illustrated in the celebrated case of the trial of Lord George Gordon for treason cited in 1 Taylor on Evidence, sec. 583, where “the cry of the mob, who accompanied the prisoner on his enterprise, was received in evidence, as forming part of the res gestce, and showing the character of the principal fact.”

It is held by the same author that : “whenever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings, made at the time in question, are also original evidence. * * * Thus the representations by a sick person of the nature and effects of the malady under which he is labouring are receivable as original evidence, whether they be made to the medical attendant, or to any other person.” (Idem, sec. 580.)

“Declarations or acts accompanying the fact in controversy and tending to illustrate, or explain it, as conversations contemporaneous with the facts or the complaints of the injured party both as to bodily suffering and the circumstances of the occurrence, form a part of the res gestce and are admissible in evidence.” (See Bouv. L. D., vol. 2, Res Gestae.)

The declaration of the deceased to her husband, the admissibility of which was objected to by the defense, is in perfect harmony with these principles and it is our opinion that the court did not err in refusing to reject it. The opinion in the case Dunn, et al. v. Republic of Liberia cited in support of the objection is not, in our opinion, analogous. There the defense offered in evidence, as the dying declaration of the deceased, statements made when the deceased was not in that extremity of life in which the law would regard such statements as dying declarations. In this case the evidence of witness Capehart was not offered as a dying declaration but as a fact correlated to the principal fact which was in issue.

The second exception is to the refusal of the trial court to strike from the records the evidence of George Brown, Priscilla Paul, Robert Walbuck and Henry Paul, on the ground that it formed no part of the res gestce, and the evidence of Jallah on the ground of irrelevancy.

We have already observed that evidence which goes to establish facts or circumstances connected with the principal fact is admissible as part of the res gestce. The evidence objected to in the first part of this exception is what we would regard as links in the chain of circumstances which although not conclusive in themselves of the guilt of the prisoner contained elements leading up to that fact. The evidence of witness Brown relates to a conversation between himself and prisoner anterior to the commission of the crime charged, in which conversation prisoner is alleged to have spoken of intimate relations between himself and the deceased which had become interrupted by one Abraham Gould, and of his intention to “nimisa” her, meaning to hurt her, if her relations with Gould continued. From the statement of Priscilla Paul we find a direct threat to kill the deceased if she continued her relations with Gould.

The evidence of Henry Paul seeks to connect prisoner with the main fact by establishing a presumption that the meat sent by him to the deceased was poisoned by the prisoner before it was delivered and that it occasioned the decedent’s death. The evidence of witness Walbuck corroborates that of witness Brown with respect to the threat of prisoner to “nimisa,” or hurt, the decease. Obviously this evidence was admissible under the res gestce rule as it tended to connect the prisoner with the crime charged by showing his criminal intentions. Nor was the evidence of witness Jallah to the effect that he saw prisoner with an alligator, irrelevant although it was evidence of a low grade in that he was unable to say whether prisoner retained in his possession the gall of the alligator alleged to be poisonous, or not. We are of the opinion that the court did not err in submitting this evidence to the jury.

We come to consider the fifth and sixth exceptions which involve the verdict and the judgment predicated on it.

In the motion for a new trial which was denied at the second trial, the counsel for prisoner relied upon the following grounds as the basis for same which position he has re-assumed in his brief before us, and has endeavoured to sustain in the very exhaustive and eloquent argument he made before us. We shall consider those grounds with legal scrutiny with the view to ascertaining (a) whether the verdict sought to be set aside was supported by legal proof necessary to warrant a conviction and (b) can the conviction stand unsupported by such proof.

The first ground relied upon by counsel in his contention is that the evidence had failed to establish the corpus delicti.

In prosecutions for murder it is necessary that proof of the corpus delicti should be substantially established before the guilt of the accused can be made out with that legal certainty which excludes every hypothesis of his innocence.

“The corpus delicti that a murder has been committed by some one, is essentially necessary to be proved,” says Mr. Archbold. The same author cites a case in which it was held that when there is no proof of the corpus delicti except an uncorroborated extra-judicial confession a conviction for murder is impossible. “The corpus delicti,” says Mr. Archbold, “has two parts, the death and the criminal agency in effecting it. One or the other must be proven directly.” “When there is direct evidence as to one given,” continues the same eminent jurist, “circumstantial evidence may be accepted as to the other, but the circumstantial evidence must be consistent with guilt and inconsistent with innocence.” (1 Archbold Criminal Practice and Pleading, p. 731.) In the case at bar the first part of the corpus delicti namely the death of Anna Capehart and Martha Johnson was, we hold, proven conclusively; the question whether the second part namely, the guilty agency which must also be proven beyond a rational doubt, has been established, we shall see in our consideration of the other principal grounds upon which it was contended for the prisoner a new trial should have been awarded. These involve the inconclusiveness of the medical testimony at the trial; the absence of affirmative proof; and the absence of such circumstantial evidence from which guilt could be inferred beyond a reasonable doubt.

Turning first to the medical testimony in the case we find a material weakness which is not fortified by any other part of the evidence in the case.

The medical witness who was introduced to prove scientifically the cause of death, there being no other evidence on this point, was contradictory and uncertain in his conclusions on this essential element of the case, and announced various hypotheses or theories as to the probable cause of the death of the decedents. It was, we hold, essentially necessary for the State to prove conclusively that the deceased died from the effects of poison before endeavoring to connect the prisoner with the murder by the chain of circumstantial evidence adduced, for if the decedents had come to their death by any cause other than that alleged the accused was entitled to an acquittal.

Nor did the attendant symptoms, or the period in which death ensued, affirmatively support the presumption of poison. It is agreed, we think, by authorities on medical jurisprudence that irritant poisons of the mineral class such as the medical witness suggested had been administered to the decedent Anna Capehart, will produce death in a much shorter period than the time within which the decedent died, unless where administered in small quantities ; but where, as in this case, the presumption is that a quantity sufficient to produce death was administered at one time, the weight of evidence of cases recorded supported the proposition that death would have followed sooner.

Considering the inconclusiveness of this essential part of the evidence for the prosecution, and the rebutting evidence on the part of defense, particularly the testimony of Abraham Berrian, which directly rebuts the presumption that the meat sent deceased by Henry Paul was taken to the house of prisoner and poisoned before it was delivered to her, there are, we think, strong grounds upon which to rest a legal doubt as to prisoner’s guilt and this, we affirm, must operate in favor of the accused.

While it is obvious, from the circumstantial evidence in the case, that the eye of suspicion naturally followed the accused, yet suspicion is not proof ; the prosecution did not, we hold, prove the charge with that legal certainty and beyond a rational doubt as the law demands. 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. “It is better,” said Judge Sir Mathew Hale on one occasion, “for ten guilty persons to go unpunished than that one innocent person should be punished ;” and this theory has been upheld by the Supreme Court of this country for more than half a century as a safe and sound rule for the observance of criminal tribunals.

In the case Dunn et al. v. the Republic of Liberia decided by this court in 1903, this court held that it was essentially 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.

Mr. Bouvier defines 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.” “In criminal cases,” says he, “whenever a reasonable doubt exists as to the guilt of the accused, that doubt ought to operate in his favor. In such cases, particularly when the liberty, honour or life of an individual is at stake, the evidence to convict ought to be clear and devoid of all reasonable doubt? ) (Bouv. L. D., vol. 1, p. 610.)

Summing up the evidence for the prosecution we do not find the conviction to be in accordance with this rule. We do not find that the State made out a cogent case against the prisoner devoid of all reasonable doubt as to his guilt. On the contrary, proof of essential facts in the case is lacking. The chain of circumstantial facts by which the prosecution sought to establish prisoner’s guilt is lacking in several links necessary to connect him with the crime. The second part of the corpus delicti which the State was bound to prove, either by direct or circumstantial evidence, has not been established. The evidence as to the cause of death is equivocal, uncertain and contradictory, and consequently of little legal weight; the question as to whether decedent Anna Capehart died from the effects of the alleged poison or from natural causes not having been conclusively shown in the post mortem examination.

In view of these facts we hold that the verdict and sentence of conviction are illegal and should be reversed and the prisoner discharged; and it hereby so ordered.

Arthur Barclay, for appellant.

Attorney General, for appellee.