GARHIEN, alias BOLOBO MAN, Appellant, v. REPUBLIC OF LIBERIA, Appellee.

APPEAL FROM THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, MARYLAND COUNTY. Argued November 30, 1972. Decided February 1, 1973. 1. When the defendant contends, in mitigation of a homicide, that he acted in the heat of passion, the adequate provocation needed to establish such state of mind may arise from anything of which the natural tendency is to produce passion in an ordinary man and did in the mind of the man charged. 2. If the instrument or agency employed by a defendant charged with murder was one that is not likely to cause death, it is not to be presumed that death was designed or intended. 3. When the criminal agency employed in a homicide consists of fists or feet, they cannot be considered deadly weapons, except by sustained use of them in the act causing death. 4. A judgment of conviction of murder will be reversed by the Supreme Court when examination of the evidence presented at the trial indicates that an essential element of the crime was not proved beyond a reasonable doubt. 5. The killing of a person, even if intended, done in the heat of passion resulting from adequate provocation and without design, is manslaughter and not murder. 6. There is no statutory requirement that members of a coronor’s jury must be literate. Appellant had been bickering with his wife earlier in the day, and the argument resumed when they returned home. The appellant apparently kicked his wife once in the lower abdomen and her death resulted, although the record of the case on appeal contained no official or medical explanation of the cause of death. The husband was indicted for murder, tried, convicted, and sentenced to death. An appeal was taken from the judgment. The Supreme Court reversed the judgment for the purpose of modifying it to manslaughter and sentenced the appellant accordingly, the time thereof running from the day of arrest. J. Dossen Richards for appellant. The Solicitor General for appellee. 423 424 LIBERIAN LAW REPORTS MR. JUSTICE HORACE delivered the opinion of the Court. The appellant in this case was indicted by a grand jury of the Circuit Court for the Fourth Judicial Circuit, Maryland County, at its May 1970 Term, for the heinous crime of murder. The salient part of the indictment is set forth. “Because Garhien, alias Bolobo Man, defendant herein, previous to the finding of this indictment, between the 14th and r8th days of May, 197o, the exact day and date being unknown to the Grand Jurors, did with malice aforethought, premeditation and deliberation beat and kick one Kayah Nyene, decedent, in the stomach with force and violence, in the Chiefdom of Bolobo, Sodoke, Maryland County, Republic of Liberia, and shortly thereafter she did languish and die, resulting from the wicked act, did unlawfully, willfully and feloniously commit the crime of murder which act of the said defendant herein is contrary to the form, force and effect of the Statute Laws of the Republic of Liberia, in such cases made and provided and against the peace and dignity of the State.” The case came up for trial at the August 1970 Term of the said court, Hon. J. Jeremiah Z. Reeves presiding by assignment. Upon arraignment, defendant entered a plea of not guilty. A jury was empaneled to try the case and after hearing the testimony of witnesses, arguments of prosecution and defense, as well as the charge of the trial judge, retired to their room of deliberation and returned with a verdict finding the defendant guilty of the charge of murder. A motion for a new trial was filed by defendant, resisted by the prosecution, and denied by the court, whereupon final judgment was rendered against the defendant on September 9, 197o, sentencing him to death by hanging in keeping with law. From this final LIBERIAN LAW REPORTS 425 judgment defendant announced an appeal to the Supreme Court and is now before us on a seven-count bill of exceptions. 14 1. Defendant contends that Your Honor erred when you did not permit State witness Mleh to answer the question: ‘Do you have any certain knowledge to tell the court and jury what was the cause of decedent’s death?’ to which question the State entered objections on grounds of eliciting expert testimony not the best evidence; which Your Honor sustained and defendant excepted thereto as recorded. . . . “2. Defendant says that Your Honor should have not sustained the State’s objections on the grounds : `not the best evidence,’ the coronor’s jury would be, or a doctor, if any at all was stationed or assigned in said Chiefdom, for the Commissioner does not reside in the Chiefdom but at the Headquarters Sodoke itself and thereby denying defendant the answer to the question propounded to witness Martin Cummings, when he was asked on cross-examination : ‘And as Commissioner, do you know what caused the death of the decedent in your District?’ to which ruling defendant excepted. . . . “3. Defendant further contends that Your Honor did not permit all the surrounding circumstances to be put before the jury by allowing defendant’s counsel to cross-examine the coroner on his statement-in-chief when you sustained the objection of the State, and the coroner did not answer the question: ‘And according to the information you got from defendant, were you convinced that the medicine or juju which you say he had. in his pocket was the cause of decedent’s death when he kicked her, not so?’ The State then and there entered the following objections: ‘Opinionative and patently intended to entrap the witness.’ and you, Your Honor, commenced to make the following ruling: ‘While the purpose and. scope of the cross- 426 LIBERIAN LAW REPORTS examination is not limited under our Statute, a recourse to the general statement of the witness shows that it was the kicking which was the cause of the death. Further, the indictment also carries the same cause of said death. The question is disallowed by the court, and it is so ordered.’ To this ruling defendant excepted. . . . “4. And also defendant says that Your Honor erred when you admitted into evidence the alleged coroner’s reports to which names of illiterate persons were attached over the objections of the defense counsel. .. . “5. And also because defendant excepted to the verdict of the empaneled trial jury. . . . “6. Defendant further submits that Your Honor erred when you denied his motion for a new trial, in your ruling. . . “7. And also defendant submits that Your Honor erred by adjudging him guilty of murder and condemning him to death by hanging in your final judgment rendered. . . .” Before dealing with the bill of exceptions we think it important to note that appellant did not deny kicking decedent, but contended that in a fit of anger he kicked her and that in such an instance the homicide could not be termed murder as charged in the indictment. Five witnesses, two of whom were alleged eyewitnesses of the killing of decedent, testified for the State. The first witness, Heah Dwedi, who was the daughter of decedent, stated that appellant and decedent went to the farm and before they left the town she asked her mother whether she should leave a portion of whatever she cooked for her because she herself would be coming to the farm at three o’clock. Before that hour her mother returned and when she inquired of her what was wrong decedent told her that during the whole period she was at the farm appellant had fussed and had refused to eat the food she had cooked. While decedent was explaining what had LIBERIAN LAW REPORTS 427 happened, appellant came in and she inquired of him what had happened but he refused to talk. Appellant then went for the food he had refused to eat to throw it away and when decedent protested he attempted to “fight” her. This witness further testified that when appellant attempted to “fight” decedent she made an alarm which caused several persons to rush to the scene who asked appellant what the trouble was, but he refused to talk to them. Then decedent took the two bowls of food and while telling the story to the persons present appellant gave her the fatal kick at the bottom of her stomach in the genital region, which resulted in her death. On cross-examination she stated that the decedent was not taken to a medical doctor after the kicking which allegedly caused her death. When asked to tell if she knew if the injury resulting in the death of decedent was from kicking, the prosecution objected on the ground of the best evidence rule that a doctor would be the best evidence, which was sustained by the trial judge. Later on in this opinion we will comment on this point. The second prosecution witness, Whenea Nimley, testified to the fact that when the daughter of decedent raised an alarm he rushed to the scene and asked appellant what the fuss was about, but appellant refused to talk, and he only “opened his mouth” when they carried the food to him and he wasted it; that when decedent asked why he wasted the food he kicked her below the stomach and she fell; that he and one Deo-ba went to the victim but in a few minutes she died and appellant ran away. When asked on cross-examination whether he had any certain knowledge as to the cause of decedent’s death, the question was objected to on the best evidence rule, that a medical doctor would be the best evidence, and the objection was sustained by the trial judge. The third witness, Jacob Gede, who was the Town Chief of the town in which the incident occurred, testified that when he heard an alarm he rushed from his farm 428 LIBERIAN LAW REPORTS to the town and upon arriving there found decedent dead and was told that she died as a result of her husband, the appellant, having kicked her. He at once reported the matter to the Paramount Chief who in turn reported it to the Commissioner. On cross-examination he admitted not being present when the incident occurred, nor could he tell whether or not decedent was killed by appellant, but he asked the people whom he met there and they told him that the dead woman had been killed by her husband. The fourth witness, Martin Cummings, Commissioner of the Sodoke District, where the alleged killing took place, testified to a report being made to him of the incident and identified the report of the coroner’s inquest, which he forwarded to the County Attorney for Maryland County. On cross-examination he stated that he did not know who ordered the burial of decedent after the coroner’s inquest. When asked whether he knew the cause of death of decedent, this question was again objected to by the prosecution on the ground of the best evidence rule, that is to say, the coroner or a doctor would be the best evidence. The objection was sustained by the trial judge. The fifth and last witness for the prosecution was Allen R. Ivy, Assistant Coroner for Maryland County, who testified in substance that on May 19, 197o, they (apparently meaning the coroner’s jury) were called to Bolobo, Sodoke District, to examine the body of decedent. The appellant was asked to tell how decedent was killed, and the husband told them he and his wife had palaver and he kicked her in the lower part of her stomach and she fell and died. He also testified that appellant told them that he had some medicine (juju) in his pocket and through anger he forgot and kicked his wife, but in crossing a creek from Bolobo to Pleebo he fell in the creek and the medicine dropped from his pocket into the creek. We simply mention this in passing because no court in Liberia can take cognizance of fetish or witch- LIBERIAN LAW REPORTS 429 craft in any proceedings before it. He identified the Coroner’s report. Because of the objections based on the best evidence rule which were sustained when questions were put to other prosecution witnesses as to the cause of death, we think it necessary to quote the questions and answers in the cross-examination of this witness. “Q. Mr. Witness, did you have any medical officer working with you on the coroner’s panel as required by the law of this land? “A. No, coroners do not carry along with them medical officer. “Q. On the direct examination, you said that you are assistant coroner, do you affirm this? “A. Yes. “Q. I suggest then you know your duty as coroner, not so? “A. Yes. “Q. Tell us then who ordered the burial of decedent? “A. I don’t know. “Q. Does not the law under which the coroners of the Republic of Liberia and all civilized world specify that after the coroner’s inquest over a dead body who is believed to have died from violence is completed, the coroner should give a certificate as to the cause of death and then order the burial of the decedent if a postmortem is unnecessary according to the coroners? [Objection : Grounds : eliciting expert testimony, the coroner not being a medical doctor, neither is he the administrative head of the area to have ordered the burial of the decedent. And not the best evidence, for the commissioner or the administrative head would be. The Court: The objection is sustained. The court says that the establishment of the cause of an action or 430 LIBERIAN LAW REPORTS omission can be made by positive, presumptive and circumstantial evidence. The coroner in his report did mention that the cause of death resulted from the kicking. And so ordered. Defense excepts.] “Q. And so, Mr. Coroner, as a coroner this is not based upon your own findings but upon what defendant told you, not so? [Objection : Grounds, opinionative and patently intended to entrap the witness. The Court: The objection is not sustained, for the coroner did make an investigation as to the cause of the death and obviously should be able to say something about it; as such, the question is not opinionative or entrapping. And so ordered.] “A. The report made was upon my own opinion and to clarify it I called the defendant to get further information. “Q. And according to the information you got from defendant were you convinced that the medicine or juju which you say he had in his pocket was the cause of decedent’s death when he kicked her, not so? [Objection : Grounds, irrelevant and immaterial; traveling beyond the res gestae of the indictment, for the indictment does not state any juju being applied, for jujuism is not countenanced by the courts of justice. And submits. The Court: While the purpose and scope of the cross-examiner is not limited under our statute, a recourse to the general statement of the witness shows that it was the kicking which was the cause of death. Further, the indictment also carries the same cause of said death. The question is disallowed by court and so ordered. To which the defense excepts.] “Q. In your general statement or testimony, you made mention that the defendant had some med- LIBERIAN LAW REPORTS 431 icine in his pocket which he forgot about and kicked his wife, tell us what relevancy the medicine being in the pocket had to do with the kicking and death of the decedent? [Objection: Grounds, opinionative and cites the court to the last question which was overruled by this court and also invokes the doctrine of stare decisis, and cites the court to its own ruling in regards to medicine. The Court: The objection is sustained. Not only on grounds two and three but also the court says said question is simply asked for burdening of the records. And so ordered. Defense excepts. Defense rests, with the usual reservation. Announcement confirmed.] That in brief is the testimony of the prosecution witnesses. According to the record the report of the coroner’s inquest was offered and admitted into evidence. Incidentally, there is no copy of any report of a coroner’s inquest in the record certified to us for review. After the prosecution rested, defendant took the stand in his own behalf. The gist of his testimony was that he and his wife, the decedent were due to go to the farm but before doing so she was to cook some cassava for them to eat, which she refused to do, and so he went on ahead of her to the farm. Upon his return he found no cassava cooked, and so he asked a cousin of his for a cassava which he roasted and ate. Afterwards, his wife brought the cooked cassava, but he told her he was filled. Decedent reported this matter of his refusing to eat her cassava to his cousin. After his cousin importuned him to eat some of the food, he reached out for two bowls, one with rice and the other with palmbutter, at which time decedent took the food, and after mixing everything up, cassava, rice and palmbutter, she wasted it. He became angry and attempted to grab her, but the people stopped him; but decedent insisted on fighting, and it was then he kicked her. 432 LIBERIAN LAW REPORTS On cross-examination, prosecution sought to establish malice because of constant fussing between appellant and decedent. Appellant denied this. The prosecution also endeavored to establish the admission of guilt by the alleged flight from the scene by appellant after he kicked his wife. Appellant denied any flight but stated he went away from the scene because he never intended to kill his wife. We have been unable to find any clear-cut evidence about the flight of appellant in the record. After defendant had testified, defense counsel applied for subpoenas for all the members of the coroner’s jury as witnesses to testify for the defense. We have not been able to fathom the reason for this strange procedure. In any case the application was granted, and one member of the coroner’s jury was qualified, testified that he was a member of the coroner’s jury, and identified the report as having been signed by him. The record thereafter is set forth, in this novel aspect of the case. “At this stage defense brings to the notice of the court that up until now the sheriff has not made returns to the subpoenas for his witnesses; hence, the defendant appeals to the court for an order demanding the sheriff to have the said subpoenas served and returned to court by Tuesday, the 18th current, since the day is far spent, being now quarter after two. And respectfully submits. “The Court: When it was brought to the attention of the court, after the testimony of the witness, that is, one of the witnesses for the defendant, that the other witnesses were not present in court, the court then suspended the matter to obtain the witnesses of the defendant, during today and until nine o’clock on tomorrow morning. In view of the information given by counsel for defendant, that said witnesses are not yet in court and the sheriff having gone to ascertain why they have not appeared in court, the court says that, as it has said, the sheriff will and is hereby.ordered to LIBERIAN LAW REPORTS 433 have all the witnesses present in court at nine o’clock on tomorrow the 18th instant. And it is hereby so ordered. “At this stage counsel for defendant says that in keeping with the sheriff’s returns, his witnesses who happen to be the members of the coroner’s jury in this case, cannot be found although they signed the report of the coroner’s jury inquest. The defendant intended by the members of the coroner’s jury that from their investigation of the incident, he, the defendant, had no intent to kill his wife and would therefore be willing to rest evidence, should the state concede that his witnesses would testify to the effect that he did not intend to commit murder and submits. “The prosecution while willing to go along with defense so as not to further delay the trial of this case and cause the Liberian Government to be spending a large sum of money, but would here like to throw out that regrettably the witnesses for the defense cannot presently be found; but notwithstanding, the court being conversant with the law with regards to intent and malice for either of these is implied or expressed. This being the case, prosecution does not further resist the application of the defense. And submits.” As far as we are aware an unprecedented situation presents itself. The defense states that inasmuch as the sheriff’s returns show that his witnesses, members of the coroner’s jury, cannot be found, that he intended to prove by these witnesses that from their investigation the defendant had no intent to kill his wife and that if the State conceded the point he would be willing to rest his case. The State replies as quoted above, which to all intents and purposes concedes the position of the defense when in his own words the prosecutor refuses to “further resist the application of the defense.” At this point it seems to us that all the defense had to do was to request a directed verdict for either manslaugh- 434 LIBERIAN LAW REPORTS ter or acquittal. But nothing of the sort happened, and the trial proceeded on its merry way as though nothing had happened. Now that we have culled from the record that by the testimony of both prosecution and defense the corpus delicti has been established, the issue to be resolved is what degree of homicide the appellant is guilty of, murder or manslaughter, the prosecution contending for the former and the defense for the latter. In order to arrive at a conclusion we will now resort to the bill of exceptions. The first two counts deal with the court having sustained objections by the prosecution to questions put by defense to prosecution witnesses as to the cause of death, on the grounds of the best evidence rule. In our view, under ordinary circumstances the trial judge would have been right in his ruling and, from a purely legal point of view, he was right. Strangely, however, there is no coroner’s jury report before us even though the record shows one was admitted into evidence. But more important, even though the prosecution insisted that a medical doctor would produce the best evidence to establish the cause of death, and rightly so, there is no indication in the record that any doctor testified to the cause of death. Neither is there any medical certificate in the record before us for review indicating the cause of death. This is another example of the ineptitude of the prosecution. Since, however, as stated before, the death of decedent has been established by the evidence of both prosecution and defense, we do not think it necessary to dilate further on this point. Counts one and two of the bill of exceptions are, therefore, not sustained. Count three of the bill of exceptions we do not consider worthy of any consideration by this Court. Count four we do not consider meritorious, because as contended by the Solicitor General in his argument before us there is no statutory requirement that members of LIBERIAN LAW REPORTS 435 the coroner’s jury must be literate, and the common law provides for such a situation. “A coroner’s inquisition is the record of the finding of the jury. It is the coroner’s duty to prepare the return of the inquest, or inquisition; and this return should show the facts giving jurisdiction. “An inquisition of which the body and the signatures are all in one handwriting has been held invalid. The full Christian names of the officer and jury, and not the initials only, should appear. If any sign the inquisition with their marks, such marks should be verified by an attestation, and where the jurors so sign, the coroner’s certificate of their signatures is sufficient, inasmuch as he is a sworn officer.” i8 C. J.S., Coroners, � 22. Count four of the bill of exceptions is not sustained. We will consider counts five and six and seven together –five, dealing with the verdict, six, with the motion for a new trial, and seven, with the final judgment–since they are interrelated. Appellant has contended that the trial judge should have granted his motion for a new trial because the evidence adduced at the trial did not warrant the verdict that was found by the jury. It is true that it is solely within the province of the jury to pass on facts in a given case, but where the law controlling the facts is ignored, it is the duty of the court to set aside such verdict and award a new trial. We have been unable to find in the record any indication of malice prepense or premeditation. On the contrary the record reveals that the incident was the direct result of a fit of rage on the part of appellant at the provocation of decedent. The Solicitor General ably argued that malice is to be inferred from the act committed. We consider this a legal axiom, but the facts must coincide with this legal principle. The State has contended that the fact that 436 LIBERIAN LAW REPORTS appellant and decedent had been arguing the whole day indicates grudge or malice and that the killing resulted from this built-up feeling. The State relies on several opinions of this Court on this point. Malice aforethought, as an element of the crime of murder, may be inferred from a deliberate act, and need not be grounded on actual or malevolence. Taylor v. Republic, [1961] LRSC 33; 14 LLR 524 (1961) ; Wlarye v. Republic, [1960] LRSC 64; 14 LLR 224 (1960) . In a prosecution for murder, proof of unjustified homicide by the defendant raises a presumption of malice. Glay v. Republic, [1963] LRSC 3; 15 LLR 181 (1963). Admittedly, these cases on determining malice are sound, but we have not been able to find the analogy with the facts in those cases with the case before us. In the instant case a man and his wife had been arguing at the farm, according to what one witness said was told her by decedent, yet appellant used no violence on her when they were by themselves on the farm. When they returned to town an altercation arose over some food, which the prosecution said was thrown away by appellant, although the two State witnesses, Heah Dwedi and Whenea Nimley, did not corroborate each other thereon, and the defense claimed it was thrown away by decedent. In the heat of this altercation appellant kicked decedent, which allegedly resulted in her death. Clearly, this was an entirely new situation, and the “cooling time” principle which both sides argued cannot apply because of the previous quarrel between appellant and decedent. “What constitutes ‘cooling time’ as it ordinarily is termed, depends on the nature and circumstances of the provocation, the extent to which the passions have been aroused, and the nature of the act causing the provocation, and therefore no precise time can be laid down by the court as a rule of law, within which the passion must be held to have subsided and reason to have resumed its control. Whether such a period of time has elapsed must be answered in each case in the LIBERIAN LAW REPORTS 437 light of the surrounding circumstances. The determination of this question is for the jury.” i WHARTON’S CRIMINAL LAW AND PROCEDURE, � 286 (1957). The defense has anchored its case on the principle of provocation and heat of passion. The evidence before us seems to uphold this theory, for the weight of authority appears to be that “adequate provocation may consist in anything the natural tendency of which is to produce passion in ordinary men, and which the jury are satisfied did produce it in the case before them, and does not consist in such provocation as must, by the laws of the human mind–produce such an effect with the certainty that physical effects follow from physical cause.” A peculiar feature of this case is the strenuous effort made by the prosecution to prevent the age and physical condition of the decedent being brought into evidence. This is all the more significant when we consider that the criminal agency in the case, the foot used to kick the decedent, cannot ordinarily be considered the use of a deadly weapon, although the manner in which it is used can make the foot a deadly weapon. Law writers hold that using the fists to strike and the feet to kick can be considered as using deadly weapons, but there is usually a constant and sustained use of these parts to constitute them deadly weapons. In this case it is clear that the appellant kicked the decedent once. Although under the acceleration-of-death principle one inflicting an injury on another who has been wounded or is sick, to hasten death, is not less culpable of committing homicide, yet all the attending circumstances must be taken into consideration to determine the degree of homicide. “The instrument or means by which a homicide has been accomplished is always to be taken into consideration in determining whether the act is criminal and in what degree it may be so. . . . When the law says that the jury may infer a specific intent to take life 438 LIBERIAN LAW REPORTS from the use of a deadly weapon, all that it means is that such circumstance is evidence of such intent. The fact is to be considered in the determination of the question, and its convincing force is a relative matter, depending upon circumstances and the evidence, if any, offered to countervail it. The law will sustain a finding of intent from the single fact that a deadly instrument was used. In other words, no presumption of the intent necessary to render a homicide murder in the first degree arises from the use of a deadly weapon directly against a vital part of the body, although the jury may consider such facts, together with all the other facts in the case, in determining whether or not such intent existed. “If the instrument employed by the slayer was one that is not likely to produce death, it is not to be presumed that death was designed or intended.” 26 Am. JUR., Homicide, � 305. We are not convinced by the record before us that there was malice aforethought and premeditation in the killing of decedent. Of course, the killing was unlawful, but the attending circumstances as brought out in the evidence before the trial court do not constitute murder. The trial judge erred when he denied the motion for a new trial and rendered judgment on a verdict that was not in keeping with the facts. Counts five, six, and seven of the bill of exceptions are hereby sustained. This Court has held that a judgment of conviction of murder will be reversed where re-examination of the evidence indicates that an essential of the crime was not proved beyond a reasonable doubt. Where review of the evidence indicates that the appellant was guilty of killing a human being, the appellant will be adjudged not guilty of murder but guilty of manslaughter. Manslaughter is defined by statute in our Penal Law. “Manslaughter. Any person who: . . . 3. Being LIBERIAN LAW REPORTS 439 the aggressor in any sudden affray, unlawfully kills a human being is guilty of a felony and punishable by imprisonment not exceeding five years.” 1956 Code 27 :233. Authority supports our position. “Voluntary manslaughter is the killing of another intentionally, but in a sudden heat of passion due to adequate provocation, and not with malice.” 21 CYC. 736. “Voluntary manslaughter is generally the felonious and intentional killing of another without malice aforethought, in a sudden heat of passion caused by adequate legal provocation. If the act of killing, although intentional, is committed under the influence of passion or in heat of blood, produced by an adequate or reasonable provocation and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is not the result of malice or of wickedness of heart or cruelty or recklessness of disposition, then the law, out of indulgence to the weakness of human nature, or rather, in recognition of the laws upon which human nature is constituted, very properly regards the offense as of a less heinous character than murder and gives it the designation of voluntary manslaughter. The absence of malice and the influence of sudden passion are the characteristics of this offense. Voluntary manslaughter is committed suddenly, without reflection, and repels the supposition that it is the result of premeditation or a prearranged plan to kill.” 1 WHARTON’S CRIMINAL LAW AND PROCEDURE, � 274 (1957). Therefore, in consideration of what has herein been stated, it is our holding that the judgment of guilty of murder is hereby reversed, and we hereby adjudge appellant, defendant in the court below, guilty of manslaughter, and said appellant is sentenced to a term of five years’ 440 LIBERIAN LAW REPORTS imprisonment from the time he was first arrested and imprisoned for the crime of murder, that is to say, from the 21st day of May, 1970. And it is so ordered. Judgment of murder modified to manslaughter.