JAMES E. COOPER, Appellant, v. REPUBLIC OF LIBERIA, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued November 12, 17, 1959. Decided January 15, 1960. 1. In a jury trial for assault and battery with intent to kill, it was improper for the prosecuting attorney, on cross-examination, to question the defendant as to the defendant’s commission of a violent assault other than the assault for which the defendant was on trial. 2. In a jury trial on criminal charges, where the prosecuting attorney, on crossexamination of the defendant, has asked an improper and prejudicial question, if the sustaining of an objection is insufficient to correct the prejudice thereby occasioned in the minds of the jury, defendant’s counsel should request the trial Judge to instruct the jury to disregard the improper and prejudicial question. 3. A point of law not raised in appellant’s bill of exceptions will not be considered by the Supreme Court. 4. An indictment for assault and battery with intent to kill is materially defective if it fails to allege that the defendant used a deadly weapon. 5. The Supreme Court has original jurisdiction only as expressly conferred by the Constitution; consequently an issue not raised in an inferior court cannot be considered by the Supreme Court on appeal unless the issue lies within the constitutional scope of the Supreme Court’s original jurisdiction. 6. In a jury trial for assault and battery with intent to kill, it was improper and prejudicial for the State’s prosecutor to say to the jury: “The private prosecutor is a poor native man, and the defendant felt he could ill-treat, and if necessary kill him, and thought nothing would come of it.” 7. It is error for a prosecuting attorney to argue on facts not in evidence, or to state in the hearing of the jury the existence of such facts; and where such error was allowed to pass unrectified, a new trial will be granted. On appeal from a judgment of conviction upon a verdict of guilty of assault and battery with intent to kill, reversed and remanded. Anthony Barclay and William Witherspoon for appellant. Assistant Attorney General J. Dossen Richards for appellee. MR. JUSTICE PIERRE delivered the opinion of the Court. In recent years, the tendency towards lawlessness would seem to have gained in intensity among a certain class of LIBERIAN LAW REPORTS 529 young people all over the world. They seem to labor under the peculiar impression that they are not bound to respect the rights of others, and that no law should compel them to regard their fellow men as deserving of the same treatment they are wont to demand of others. This is indeed unfortunate, since it is shown that this attitude is responsible for a large proportion of the crimes committed in the world today. In this case, James Cooper, the appellant, was indicted for the felonious crime of assault and battery with intent to kill. The indictment alleges that Cooper, without justification or excuse, and with a dangerous weapon known as a piece of iron, did wilfully and unlawfully batter, beat and bruise the head of one Lee Bestman, with intent to kill him. When the case came on for trial at the August, 1958, term, of the Circuit Court of the First Judicial Circuit, Montserrado County, the defendant entered a plea of Not Guilty upon arraignment. A jury was empanelled and sworn, heard evidence, deliberated, and returned a verdict of Guilty against the defendant; and it is from the judgment rendered upon this verdict that appeal was taken, which has brought this matter before us for determination. According to the record of the trial certified to us, appellant Cooper and the private prosecutor joined other passengers on a truck at Ganta in the Central Province. Because of a request made by one of the passengers the truck drove into appellant’s yard taking all of the passengers, including the private prosecutor, on to the appellant’s premises. We would like to observe that the private prosecutor did not make the request, nor was he responsible for the driver’s decision to drive the vehicle into Mr. Cooper’s yard. When the vehicle came to a stop, however, the private prosecutor, who had occupied one of the seats in the rear, observing a vacant space on the front seat, got down and attempted to take this vacant place in front. Up to this point both sides have agreed on the details of what happened ; but from this point we would 530 LIBERIAN LAW REPORTS prefer to have the appellant tell his own story. We will, therefore, quote his testimony as it appears in the record before us. It is, word for word, as follows : “About two years ago, it was brought to my knowledge that the private prosecutor had visited my home in Monrovia, and my mother had turned him out. When I went to my farm in Dingama, I had left a big flock of American chickens–about iso in number– and they had all died out, which was a loss of about some $5oo. After investigating the reason of their death, it was brought out to me that, during my absence, the private prosecutor had introduced a couple of local chickens to my farm to be crossed, and not only had he done this, thereby introducing disease to my flock and killed them out, he had also taken away six bags of rice, of which, to this day, no account has been made to me. I thereupon called a friend of mine, Mr. Thomas Beard, who was then residing in Ganta, who called on the private prosecutor with me, and I laid out my grievances. But, for certain reasons, I asked him not to go back to my farm or any other property I have in Ganta. About a year passed. During this interval he passed on the road constructed through my farm unmolested by me. It happened that, last July, I underwent a very heavy spell of sickness. So serious was this sickness that the doctor had to remove me from my house into his home for medical attention. I was discharged on July 24, and went up to my farm accompanied by my wife. On July 3o, I went to Ganta to my farm to make some purchases. There I met Mr. L. L. Miller, owner of a truck who was about to go my way. I secured passage with him and went back home. Upon reaching my gateway Mr. Miller said he wanted a drink of water. I said : ‘O.K.’ I did not invite him in the yard as he alleged in his testimony; but he went into the yard and parked. He, Mr. Aaron Cooper, and I went into the house. I told LIBERIAN LAW REPORTS 531 my daughter to give him a drink of water, and I went into the room to greet my wife who had been ill the whole day. When I came out to see that Mr. Miller had got the water, I observed the private prosecutor getting down from the back of the truck. I immediately went outside and asked him to get back in ; but by the time I reached him he had come around to the front of the truck. I then told him to get back in the truck. He refused, and said that he had come at the instance of Mr. Miller, and that he would get in the front seat. I told him that I had asked him not to come on any premises of mine. About this time I threw my hand across the open door to bar his entrance; he resisted this by pushing my hand and making an attempt for the front seat. I thereupon grabbed him, and pulled him away from the truck. This truck of Mr. Miller is a very old one; and, as it goes with trucks of that type, there are always irons and tools in the front seat. So, in the tussle that ensued I observed the private prosecutor’s hand raised toward my head with a weapon. He struck at me; but because of my swiftness I circumvented a blow which would have been fatal. I then wrested this weapon, which was a piece of tool, away from his hand ; and in that spare moment, seeing my blood, I became infuriated and struck him many blows, as I had already received one from him which had caused my bleeding. About this time Mr. Cooper and Mr. Miller came out and parted us. I insisted that this man leave -my yard ; he walked out bleeding, but I was bleeding more. My wife and children came out and took me into the house. I went in, took off my soiled garment which was a new jacket, and had a boy directed to dress my wound and wash the clothes. A day after that, I received a writ signed by the district clerk for assault and battery with intent to do grievous bodily harm. I appeared and was bailed. A couple of days afterwards the District 532 LIBERIAN LAW REPORTS Commissioner, Mr. Allen Williams, accompanied by his brother-in-law, J. Dossen Richards, went up to Sanniquellie and had me arrested, charging me with assault and battery with intent to kill.” This story, as told by the appellant himself on the stand, speaks louder than any comment we could make on it. During the argument we inquired of counsel whether, in his opinion the appellant had shown any consistency, or any desire to avoid an altercation with the private prosecutor, when he kept insisting upon the man leaving his premises, and at the same time prevented him from entering the vehicle which was to take him away. It seems to us so very strange that any peaceful and law-abiding citizen would have conducted himself in the manner as related in the appellant’s story of how he acted that day. A more belligerent and recalcitrant attitude is seldom shown in the behavior of the worst type of aggressors. There are a few points raised in the appellant’s brief, and heatedly argued before this bar, which we think are of sufficient importance to warrant attention in this opinion. The first is the question of the absence of the medical certificate. The appellant has claimed that the prosecution’s failure to have produced it at the trial for the jury’s inspection could only mean that the said certificate did not support the charge, and raised a doubt as to the guilt of the defendant; which doubt he claims should have operated in his favor. Nowhere in the evidence is it shown that a medical certificate was either sought or secured ; but rather, in answer to the question : Did you attend any medical doctor as a result of injuries you sustained from the defendant?” The private prosecutor answered : “Yes they immediately carried me to Sanniquellie in the same truck.” We do not see how this answer to the question could imply that a medical certificate was either sought or obtained. It is true that the face of the indictment shows a medical certificate listed as part of the evidence the prosecution intended to rely upon at the trial ; but nowhere LIBERIAN LAW REPORTS 533 has it been shown that any effort was made to bring one into the case, nor can the appellant, in our opinion, legally contend that its absence at the trial constitutes a material defect in the verdict returned by the jury. Count “5” of the appellant’s brief accuses the prosecutor of asking a question on cross-examination on a matter which was not in evidence in the case, and which did not form any part of the trial; and that the said question was asked for the purpose of inflaming the minds of the jury against the defendant. The question is : “You have put on record all you remember ; you have tried to say that Counsellor J. D. Richards is inimical to you. Do you also remember that, because of your characteristic pugnacious hostilities and belligerence, you beat to death last month a man at Ganta, who died as a result of the fatal beating you gave him, and which matter is now claiming Government attention?” We agree that this question was indeed improper and should not have been asked ; although the Judge’s act of sustaining an objection to it should have, under ordinary circumstances, cured any harm it might have done to the defendant’s interest. But we also feel that appellant’s counsel should have requested the Judge to instruct the jury to disregard, if he felt that sustaining the objection was not sufficient. We have made further comment on this point later in this opinion; but we will observe, however, that this point, important as it may be, was never raised in the bill of exceptions so as to give us a right to consider it. Another point which we regard as very important raised in the brief is the contention that the indictment fails to allege the use by the defendant of a “deadly weapon,” which allegation is a necessary and mandatory requirement in all indictments for assault and battery with intent to kill. We are in complete agreement with this argument, but again have to observe that not only was this important point omitted in the bill of exceptions, but other 534 LIBERIAN LAW REPORTS means whereby it could have been brought before us were also neglected ; that is to say, by filing a motion to quash the indictment, and/or a motion in arrest of judgment. We have therefore decided to ignore this point. The Supreme Court has original jurisdiction only in those cases, and over those issues, specifically named in the Constitution ; in all others we exercise appellate jurisdiction. Therefore questions and issues not raised on trial in an inferior court could not be regarded as appellate matters when raised here for the first time unless such issues fall within the category of those over which the Constitution gives us original jurisdiction. Another point raised in the brief and omitted in the bill of exceptions is the absence of the weapon at the trial. On this point we would like to observe that we have noticed a seeming impertinence on part of the appellant, during his trial in the court below–an attitude unnecessary and uncalled for, and which never helps a defendant on trial for crime. Whilst on the stand, the prosecutor cross-examined him as follows : “Q. I suggest that the private prosecutor was travelling with you in the same truck, and that he was drinking when you drove into your yard. Am I correct? “A. I am not in a position to tell whether he was traveling in the same truck. It has never been a practice of mine to nose into other people’s business. There were many persons in the back of the vehicle; it was only after I reached my home that I saw the private prosecutor getting down from the back of the truck, and _I went outside to ask him to please get back in. “Q. Since, as you said, you wrested the piece of iron from the _private prosecutor, with which you struck him many,times, what did you do with that piece of iron since you last had it? “A. The piece of iron in question happens not to have LIBERIAN LAW REPORTS 535 been a souvenir. In a fight, when things like those happen, it is very seldom that the party to the fight can tell in detail what happened. Besides that, the fact was that I was unaware at the time of having such enemies. I merely attended my wounds and forgot about the matter.” To what purpose all this show of heat, and the inclination towards impertinence? Persons charged with crime who conduct themselves during the trial of their cases in an arrogant manner, and who show an impertinent attitude, accomplish very little, if anything at all, in appealing to the sympathy of an impartial jury. One of the points raised in the motion for new trial which was denied, and which denial has been made an issue in the bill of exceptions, is that, during the prosecutor’s argument to the jury, he is alleged to have said of and concerning the defendant: “The private prosecutor is a poor native man, and the defendant felt he could ill-treat, and if necessary kill him, and thought nothing would come of it.” It is true that the Judge reprimanded counsel, and thereby sought to cure any legal harm which might have been done to the defendant on trial; but it is also true that this was the second caustic and irrelevant remark, which although it had no bearing on the case, was introduced by the prosecution against the defendant in the presence of the empanelled jury. We said earlier in this opinion, that the remark about the defendant having killed a man out of his bad temper had not been properly brought before us ; so we could give it no legal consideration in the determination of this case. This second remark, as quoted, supra, however, is properly before us on appeal; and we would like to observe that, added to the weight which it could have standing alone, is that which the memory of the jury might have had of the first remark made by the prosecutor against the defendant. Who knows but that the appellant’s contention that this remark 536 LIBERIAN LAW REPORTS inflamed the minds of the jury and resulted in their verdict against him is not true? How could we be sure? We should always remember that members of an empanelled jury are human beings, and as such human beings they are susceptible to those emotions and reactions common to human nature. The dignity of our courts, and the exalted levels on which we would have our criminal trials conducted, could only be adversely affected by a show of hostility and impatience on the part of the State’s prosecutors towards defendants during a trial. The State’s prosecutor performs a respectable and legitimate duty when he exerts every effort to convict the accused. His course of honorable procedure has been laid down by usage and rule. He should therefore remain calm and efficiently convincing, which is all that is reasonably required to carry weight with the jury. Placed at his disposal is a powerful machinery geared to the prevention and discouragement of crime; within his official grasp is every facility for executing the functions of his office with polish, technical fairness, and without rancor toward the accused whom the State has placed on trial. Professor Beale has discussed the subject in these words : “In arguing to the jury, the prosecuting officer must keep within the bounds of legitimate argument; he must confine himself to the facts proved. ‘The weapons of wit and satire and of ridicule are all available to him so long as he keeps within the record. He may draw inferences, reject theories and hypotheses, impugn motives, and question credibility, subject only to the restriction that, in so doing, he must not get clearly outside the record, and attempt to fortify his case by his own assertions of facts, unsupported by the evidence.’ Thus it is not legitimate for counsel to use abusive language of the defendant; and if this is done in such a way as to prejudice the defendant, a new trial will be granted. LIBERIAN LAW REPORTS 5.37 “It is erroneous for the prosecuting attorney to argue on facts not in evidence, or to state in the hearing of the jury the existence of such facts ; and if such error was allowed to pass unrectified, a new trial will be granted.” BEALE, CRIMINAL PLEADING, p. 248, � 221 ( 1899) � In the present case, we are of opinion that the remarks of the State’s prosecutor were unnecessary and unbecoming, and should not have been introduced in the address to the jury. Such remarks could, and might have marred the regularity and perhaps disturbed the sober reasoning of members of the panel. It is improper, and sometimes prejudicial, for the prosecution to embark upon a course of accusatory language against the defendant in an argument to the jury, especially if the accusation or crime is irrelevant to the issue at bar. In every instance where it can be shown that a verdict against the defendant might be the result of such irrelevant and unwarranted references to previous criminal charges against the defendant, or to any remark outside the record which could influence an adverse impression of the defendant, a new trial should in fairness be granted. We are therefore reversing the judgment; and because we are of the opinion that the prosecution exceeded the limits within which fair and impartial criminal trials should be conducted, and convictions obtained, we are remanding the case for a new trial. Reversed and remanded.