MOORE DENNIS, Appellant, v. REPUBLIC OF LIBERIA, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued March 27, 1969. Decided June 13, 1969. 1. Insubstantial error committed by a trial judge, or prejudicial comments by the prosecution stricken from the record, are not sufficient for reversal in the appellate court when the proceedings held were otherwise properly conducted. 2. Malice aforethought may be expressed or implied. 3. The deliberate killing of a human being by another creates a presumption of malice, even though no personal enmity has been proved. 4. Determination of the issue of malice prepense is to be left to the jury, though the court may rule as a matter of law on the sufficiency of the jury’s finding. 5. Confession by an accused is admissible in evidence against him when legally obtained. The fourteen-year-old defendant was charged with the murder of a seventeen-year-old female, both residing as wards in a common household. He was tried, and convicted of first degree murder by a jury, and sentenced to be hanged. He voluntarily made two confessions, both admitting his guilt, but in one of which he implicated his foster mother as the instigator of the crime. The killing inexplicably occurred one day in the absence of both parents, when the defendant dropped his broom in the backyard, got a no. 12 gauge gun from his parents’ room, entered the room of the decedent and shot her. An appeal was taken from the judgment in the trial court. Judgment affirmed. J. Dossen Richards for appellant. Nelson Wm. Broderick for appellee. Solicitor General MR. court. JUSTICE MITCHELL delivered the opinion of the 318 LIBERIAN LAW REPORTS 319 Moore Dennis and Lucretia Herron were wards, living together in the same home in the Township of Royesville, Montserrado County. Lucretia no longer lives, for her life was taken by the bullets discharged from a no. 12 gauge gun, fired by Moore Dennis. The grand jury at the November 1966 Term of the First Judicial Circuit, Criminal Assizes, Montserrado County, indicted Moore Dennis for murder. At the May 1967 Term Moore Dennis was arraigned, pleaded not guilty, and his trial began. The jury, after deliberating for some time, found him guilty of murder. He excepted to the verdict of the jury and filed a motion for a new trial, which reads : Because defendant submits that the verdict of the jury as returned on the 17th day of May, 1967, be set aside and made null and void, granting him a new trial, because said verdict is manifestly against the weight of the evidence adduced at the trial, in the following respects : “(a) That although the entire evidence fails to show any malice on his part toward the decedent, malice being the main ingredient and characteristic of murder, yet the trial jury found him guilty of ‘willful murder’ ; ” ( b) That although the entire evidence fails to show intent on his part in the commission of the crime, which is an essential element in every criminal offense, yet the trial jury found him guilty of willful murder, which ought not to have been done by said jury; “(c) That although defendant said that the confession made by him and marked by court `P-3,’ was read to him and he signed it, he did not know the content and he has forgotten what was read to him, and the fact that when the incident first occurred defendant explained to police officer Jallah Gallamah that he did not know how he managed to kill decedent, and the 320 LIBERIAN LAW REPORTS fact that there had never been any ill-feeling between him and the decedent, and that no one told him to shoot decedent, which fact was also testified to by witnesses Emmanuel Ebba, Charles Tubman, Jallah Gallamah, all witnesses for the prosecution, and also defendant himself and his witness James Dennis, all of which completely negates the confession which was made while defendant was in custody of the C.I.D. without being warned as the law directs, nor being advised of his right of counsel before making said confession, yet said verdict has been principally based on this confession; “(d) That although there was before the court and jury two statements made by one and the same defendant, as recounted above, which should have moved the jury to weigh that the first two statements of the defendant were made voluntarily, without his then being confined, and should be taken with great weight as against the one made in confinement, which if done surely should have caused the jury to bring in a verdict contrary to the one they brought, yet said jury brought in a verdict of willful murder, which is not supported by that quality of evidence under the law to warrant a conviction for murder ; “(e) That although from the evidence and circumstances surrounding the case, the confession marked by court `13 -3′ having become questionable, and without the prosecution introducing into evidence any independent evidence or circumstances which independently or jointly with the confession could convict the defendant of willful murder, yet the trial jury brought a verdict against said defendant for willful murder.” This motion for a new trial was subsequently heard and denied and on May 22, 1967, the court rendered final judgment, adjudging the defendant guilty of murder, and sentenced him to be hanged. LIBERIAN LAW REPORTS 321 From this judgment and sundry rulings an appeal was prayed for to this Court and the defendant filed his bill of exceptions embracing eight counts. Examining the record taken in the trial court, the following picture is presented : Moore Dennis, Lucretia Herron, and another child by the name of James Dennis, lived together in Royesville, in the home of Mrs. Deborah Dennis and her husband, as their wards. On Sunday, July 31, 1966, while both husband and wife were away from the home, around eleven o’clock in the morning, when Lucretia was in a bedroom sitting on a bed combing her hair, and Moore Dennis was sweeping a portion of the yard, and James cleaning the dishes, Moore suddenly dropped the broom, went into the room of his father and mother, took a no. 12 gauge gun leaning against the foot of the bed, entered the room in which Lucretia was sitting, pointed the gun at �her, and pulled the trigger, killing Lucretia. At the firing of the gun, persons living nearby came on the scene and found Lucretia Herron lying dead on the bed, with the comb with which she was combing her hair in her hand. Moore Dennis had returned to the yard, but when inquired of concerning the person responsible for the tragic act, he informed Owens Monger that he had shot and killed the decedent. Police Captain Jallah Gallamah, being nearby, was called to the yard, where he met Moore Dennis with his hand in Owens Monger’s hand and he was told of what had happened. He then took the defendant to the house and put questions to him in connection with the death of Lucretia Herron. The defendant then dramatized the story to him by going into the room and taking the gun therefrom, showing him how he was sweeping the yard when he suddenly dropped the broom, describing how he came in with the gun, aimed it at Lucretia, and pulled the trigger. Gallamah then brought Moore Dennis to Monrovia and turned him over to the C.I.D. Moore Dennis, of 322 LIBERIAN LAW REPORTS course, was shown to be a boy of approximately fourteen years and Lucretia Herron, the decedent, was said to be seventeen years old. While in the custody of the C.I.D., Moore Dennis voluntarily confessed that he killed Lucretia, and when asked if he was induced to do so, or there was any misunderstanding between the two of them, he replied, no. At this time, the C.I.D., continuing from the record, informed him of the legal risk in signing a confession, because whatever he signed would be binding upon him. He agreed, and voluntarily, without the least coercion, signed this statement admitting the killing. This confession was corroborated by Emmanuel Ebba and Charles Tubman as a voluntary one. A second confession appears, in which the defendant said subsequently that he was urged to do the shooting by his ma, Mrs. Deborah Dennis. But on the whole, both of these statements show that defendant admitted the killing and that he signed these confessions voluntarily even after having been told of their importance in his implication. This fact was not denied by the defendant when on the witness stand. The foregoing constitutes the base of this case of murder, but before going into the argument of counsel, we will first consider the important counts of the bill of exceptions. Because on the loth day of May 1967, being the 3rd day’s session, defendant’s counsel on cross-examination propounded the following question to Jallah Gallamah, witness for the prosecution : ” ‘Is it not a fact that during your police investigation on the spot, you were informed that decedent was heard saying, Moore you better stop playing with that gun, at which time the report of the gun was heard?’ To this question, the prosecution objected on the grounds : ‘Not the best evidence.’ Which objection the court sustained, to which defendant then and there excepted.” LIBERIAN LAW REPORTS 323 Jallah Gallamah was not on the scene, as the record shows, when the defendant killed the decendent, so obviously he had no knowledge as to what was said ; hence, he was not the best evidence. The one who gave him the information was the proper witness to testify in answer to the question. The trial judge did not err in sustaining objection to the said question and, therefore, count i is dismissed. The Constitution, which is the framework for our laws, makes it positive that no person shall be deprived of life, liberty, property or privilege, except by a judgment of his peers and the law of the land. This provision has compelled our jury system, the jury standing over the ages as judges of the facts in any given case in which a jury is required under the law. At a trial before a jury all questions which relate to their function in determining the guilt or innocence of a party must be considered by the jury, and no question which has a tendency to infringe or invade this exclusive right of the jury’s function should be permitted to be asked of a witness when on the stand testifying to facts within his certain knowledge. Moore Dennis stood charged with murder, and whether or not the witness, Jallah Gallamah, in his�official capacity as a police officer during his investigation, got to know whether or not defendant had killed the decedent intentionally or by accident was within the province of the jury to determine and not the witness. Count two of the bill, therefore, is not sustained. Count four of the bill of exceptions reads : “4. And also because on the r ith day of May, 1967, when the prosecution rested its oral evidence, it offered into evidence several items marked by court `13-i’ to `P-3,’ and counsel for defendant interposed objection to the admission into evidence of the document marked by court T-3,’ which objection the court overruled. To which defendant then and there excepted.” 324 LIBERIAN LAW REPORTS When Moore Dennis took the witness stand, he testified : “No, Deborah Dennis did not advise me to do this (meaning to kill Lucretia Herron).” The document, marked “P-3,” is the document that carries the second confession which Moore Dennis is supposed to have made while in the custody of the C.I.D. It is a document that admits of the commission of the crime, but involves Mrs. Deborah Dennis as the instigator. In our opinion it was fair and right for the court to have admitted this confession into evidence and left its credibility and effect to be decided upon by the jury. Especially so since the defendant was uncoerced and uninfluenced, and because Moore Dennis in his testimony said subsequently to this confession that Deborah Dennis did not tell him to shoot and kill the decedent. In Buysolow v. Coleman, [1946] LRSC 4; 9 L.L.R. 156 (1946), Mr. Justice Russell, speaking for this Court, said, at p. 16o: ” ‘It is the right of the Court to decide on the admissibility of evidence ; but when it is admitted, it is the right of the jury to decide upon its credibility and effect. . . Rev. Stat. �� 374, 378.” And in Cooper v. Republic of Liberia, i L.L.R. 256 (1894), the Court’s holding was that a voluntary admission by a party is evidence against him even if it does not appear that he was warned by the judge of the penalty he would incur. If they were not made from threats, fear or inducement they will be admitted as evidence of a high grade. In this case Moore Dennis testified that he was not put under fear, coerced nor influenced when he made this confession and, hence, such document should have been admitted into evidence. In their fourth count of the bill of exceptions, it was alleged : “4. When defendant was on the stand and being di- LIBERIAN LAW REPORTS 325 rected by his counsel, he was asked this question : `The prosecution had introduced evidence here that you made confessions or statements in connection with the shooting incident, in one of which confessions it is alleged you made mention of the fact that it was one Deborah Dennis who told you to kill the decedent. What have you to say about this?’ ” It suffices to say that whether or not Moore Dennis was induced, counseled or advised by Deborah Dennis to commit the murder, which was not proved at the trial, this was not sufficient to relieve the defendant from culpability for committing the crime. Nonetheless, the question should have been allowed, and the trial court was in error for having sustained the prosecution’s objection. The record before us, however, as we have said before, shows that Deborah Dennis was not on trial, and the confession at issue shows on its face that Moore Dennis alone, and none other, committed the crime. Therefore, count four is denied, because this confession’s probity and evidentiary weight was for the jury to pass upon. The other four counts of the bill of exceptions need not be decided seriatim as we have done in the first four, because they entail exceptions to the verdict, the court’s ruling on defendant’s motion for a new trial, and defendant’s exception to the judgment of the court, and are procedural in nature, except count five, which makes reference to the County Attorney having stated when the defendant was on the witness stand testifying in his own behalf, “that he was lying.” This comment defendant claims, could have had some influence on the jurors and caused them to arrive at a verdict of guilty. We have checked the record, and it is true that the County Attorney did make the comment as alleged, but in our opinion this was not an expression of such an inflammatory nature as to have unduly influenced the jury in arriving at its verdict. Moreover, the jury was ad- 326 LIBERIAN LAW REPORTS monished immediately by the court to put the statement out of mind. This count, therefore, seems to have no legal merit. When this case was called for hearing, counsel for defendant argued very strenuously before us that murder in the first degree had not been committed, that this case was a homicide through misadventure because deliberation, premeditation and malice aforethought were not apparent, that the shooting occurred as an accident, that the verdict of the jury was not in accord with the evidence and should have been set aside and a new trial ordered, because in the absence of a premeditated design by the defendant a verdict of guilty could not be returned. Appellee’s counsel contended to the contrary in his argument and said that Jallah Gallamah’s testimony was fully corroborated by other evidence. Considering all of the evidence before us, including the confessions of the defendant, his re-enactment before Jallah Gallamah, showing the manner in which he got the gun, fired and killed the decedent and his admission that the defendant had done no wrong to him, when taken together cannot but lead any unbiased mind to conclude that the act was voluntary and, therefore, intent and malice aforethought must be presumed. Let us not forget that Moore Dennis never denied committing the act but merely said that he did not know that the gun was loaded. Granting this statement to be correct, then why was it that he suddenly dropped the broom, went directly into the room where the gun was, took it from its position, walked all the way into the other room and aimed, fired and killed Lucretia, in the state of mind he alleges? Or, if there was no intent, why he did not show himself terrified after observing that he had killed the decedent, but rather, on the contrary, dramatized his actions to a police officer? These are questions that have still remained unanswered. LIBERIAN LAW REPORTS 327 Moore Dennis, when on the stand, was asked and gave answer to these questions : “Q. Do you make us to understand that playing with the gun as you say, it went off as you said, did you cock the gun and pull the trigger? “A. After I was playing with the gun I did not know that shots were in the gun, I cocked it, soon as I touched the trigger, the gun went off. “Q. Tell where did you cock this gun and touch the trigger, by this we mean, was this done in the room from where you took the gun or in the room where decendent was? “A. It was in the room where decedent was. “Q. Tell us as to whether or not it was habitual on your part to play with your father’s gun during his absence and if so how many times had you played with said gun prior to the incident which resulted in Lucretia’s death? “A. I think over four times. “Q. And during these times you made sure that the gun was either empty or loaded, not so? “A. No, I never used to examine it. “Q. Isn’t it true that when the police first questioned you about the killing of Lucretia Herron you did not first talk because you were afraid? “A. I did not refuse to talk, nor was I afraid of my mother, Deborah Dennis.” These are all questions put to defendant, although not corroborated, that is to say, his answers were not corroborated, yet he clearly said that he talked after he had committed the act because he was not afraid. This puzzles us, for in years of experience no one has killed a human being to our knowledge, with or without intent, and not been overcome with fear for having done so. This, therefore, must indicate criminal intent. James Dennis, who was in the house with Moore and 328 LIBERIAN LAW REPORTS Lucretia, testified and said that he heard Lucretia admonishing the defendant against handling the gun, but before he could leave his work at the dishwasher and get to the defendant, Moore Dennis had fired and killed the decedent. All of such circumstances when taken together show a design to kill, with premeditation, deliberation and malice presumed. (I . . . although evidence of an intent to take life is not so conclusive that the court can pronounce such intent to be established as a matter of law, but intent is a question of fact for the jury, to be determined from the manner and circumstances of the use of the weapon. . . .” 41 C.J.S., Homicide, � 340. “Malice, though inferrable from the use of a deadly weapon in a reckless manner, should be left to the jury.” Simmons v. Plate, 19 SW 2nd 44. In Darnenoh v. Republic of Liberia, [1935] LRSC 12; 4 L.L.R. 308 (1935), the Court decided that any person who shall, without legal justification or excuse, unlawfully and with malice aforethought, kill any human being, thereby commits murder. Malice aforethought may be either expressed or implied. When a human being has been deliberately killed by another the law presumes malice even though no particular enmity has been proved. Manslaughter is only considered when the act of killing is committed in hot blood, and when the deliberate act is done in cold blood the writers judge the act to be murder in the first degree. In Padmore v. Republic of Liberia, [1933] LRSC 11; 3 L.L.R. 418 (1933), Mr. Justice Page, speaking of malice, said at p. 421. “Expressed, when one with a sedate, deliberate mind forms a design to kill another, which formed design is evidenced by external circumstances discovering that inward intention, such as lying in wait, antecedent menace and concerted schemes to do some bodily harm. In such a case where no malice is expressed, LIBERIAN LAW REPORTS 329 such as where a man poisons another, the law will imply or presume malice though no particular enmity can be proved. And if a man kills another suddenly without any, or without a considerable provocation, the law will imply malice ; for no person, unless of an abandoned heart, would be guilty of such an act upon a slight or no apparent cause.” Lastly, the defendant’s voluntary and uncoerced confessions, which he testified to had been made by him even though admonished by the C.I.D. that they could be evidence against him in court are doubtlessly genuine, especially in view of their validity. And it is the established position of this Court that confession of a crime by an accused is admissible evidence and may be used against him by the prosecution when properly corroborated. In view of the foregoing, the verdict cannot be disturbed, and the judgment of the court below rendered thereon being sound and in accord with the law, the same is hereby affirmed. And it is hereby so ordered. Affirmed.