CLAUDIUS COOPER, Appellant, v. REPUBLIC OF LIBERIA, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT, NIMBA COUNTY. Argued April 13, 1970. Decided June 11, 1970. 1. When the record of a proceeding in a lower court is replete with error and evinces the lack of a judicial atmosphere, the Supreme Court will grant the application jointly made by both parties for remand, to insure a fair trial thereafter. The appellant was charged with assault and battery, and after indictment was tried by a jury and found guilty. In the course of the trial, in the judge’s charge to the jury, in the conduct of the witnesses and the failure of the trial judge to rule upon a disqualified juror, many errors appeared to have been committed. Both parties, recognizing the general impropriety marking the proceedings in the lower court, joined in requesting the Supreme Court to remand the case so that the issues could be tried in a judicial atmosphere. The Supreme Court, taking due cognizance of the many errors apparent in the record before it, granted the application. Judgment reversed, case remanded. Lawrence A. Morgan and S. Raymond Horace for appellant. Solicitor General George E. Henries for appellee. MR. JUSTICE Court. ROBERTS delivered the opinion of the Appellant Claudius Cooper was indicted during the August Term, 1967, of the Eighth Judicial Circuit Court, Nimba County, for the crime “assault and battery with 43 44 LIBERIAN LAW REPORTS intent to kill.” At the May Term, 1968, of said court, he was tried and found guilty of the offense by a jury. After his motion for a new trial was denied, appellant took an appeal from the judgment of the court. In appellant’s bill of exceptions, his brief filed in this Court, as well as his argument before us, he cited various errors, contending that they were committed by the trial judge. A resume of these errors follows : “1. The indictment charges that appellant, ‘with force and violence, in and upon the body of John Saydee of the town of Saniquellie, Nimba County and Republic aforesaid, unlawfully, wilfully, wrongfully, maliciously, intentionally and violently beat the said John Saydee, and in his attempt to kill with his own weapon, known to the grand jurors as a pistol made of iron and wood, did butt the said John Saydee on the right side of his head and a little above the eye and on the face, with intent to murder.'” Appellant maintains that notwithstanding this definite averment, the pistol referred to, though identified, was never offered into evidence. “2. That the evidence presented at the trial and submitted to the jury was lacking of a medical certificate describing and confirming the cut or wound mentioned in the indictment since, obviously, the wound had healed prior to the trial. To the contrary, defendant’s wife offered into evidence a medical certificate showing wounds she alleged were inflicted on her person by the private prosecutor. “3. The foreman of the trial jury, Mr. John Y. Pyne, was also the foreman of the grand jury that found the indictment against the defendant, thus serving twice as a juror within a period of less than a year.” In Watts v. Republic of Liberia, II LLR 97 (1952) , the Court held that service on a grand jury which found an indictment renders the person who so served incom- LIBERIAN LAW REPORTS 45 petent to serve as a juror at the trial of the same indictment, or, as least subject to challenge for cause, and the general rule that if a juror is accepted to try a case with out objections, the verdict will not be set aside by reason of that juror’s disqualification, applies only when the party claiming prejudice had knowledge of the disqualification before the juror was accepted. In reliance upon this case defendant petitioned the court to set aside the verdict and judgment, based upon such information as a newly discovered fact. The judge seemingly attached no importance to the motion and gave no ruling thereon. Appellant excepted to the charge of Judge Emanuel Gbalazeh, the relevant portion thereof reading: “4. . . . According to our procedures, pleadings precede evidence, that is, a plea of guilty or not guilty must be entered and this consists of a formal statement of the parties before trial upon which issue is joined. During the arraignment of the defendant now on trial, he entered a plea of ‘not guilty.’ And during the production of evidence, which by and through the evidence adduced, all prove that he did do the acts, but in self-defense. This we call under our law confession and avoidance, that is to say, yes, I did it, but these are reasons, whereas his plea upon which issues were joined categorically set up a traverse, that is, general denial. As to the evidence in favor of the defendant, it tends to prove that the defendant’s wife was in imminent danger and he went to her rescue. This defense does not conform to our procedure and practice. The general evidence on both sides all showed that the gun was in the possession of the defendant, and in the attempt of the private prosecutor to butt the defendant, he hit against the gun in the hand of the defendant; this portion of the evidence is hereby admitted as a declaration against interest; that is, prosecution and defense, including the defendant himself, 46 LIBERIAN LAW REPORTS talked about this gun even though it was not presented ; that is confirmed by witnesses for the prosecution; but the mere fact that all the witnesses talked about this gun, that was then used by the private prosecutor, is one of the best evidence that you should take into your room of deliberation. . . .” Following this charge, the jury found the defendant guilty. Because of the indecent diction of the testimony of witnesses, filled with profanity, we will refrain from quoting any portion of it, even though appellant maintains that the evidence of both the prosecution and defense favors him. Before argument could progress, both parties, cognizant of this parody of trial and its divergence of justice, stipulated for the record. “At this stage, counsel for the prosecution and the appellant, realizing the several errors, irregularities and omissions apparent on the face of the record, which show that a regular trial of the issues involved has not been judicially had, have agreed to jointly request this Court to favorably consider a remand of this case so that a trial may be judiciously had in the trial court. Submitted.” We have, therefore, set forth a summation of the errors complained of to disclose the justification for this submission. The submission is hereby granted, the judgment reversed, and the case remanded for a new trial. The Clerk of this Court is hereby ordered to send a mandate to the court below informing it of this judgment. And it is hereby so ordered. Application to remand granted; judgment reversed.