GUMMAH alias KOMNAH, Appellant, v. REPUBLIC OF LIBERIA, Appellee.

APPEAL FROM CIRCUIT COURT OF FIRST JUDICIAL CIRCUIT, MONTSERRADO COUNTY.

Argued April 1, 2, 1935. Decided April 11, 1935.

If the testimony of the private prosecutrix that, in pursuance of threats, a wound had been inflicted on her by the person who had made the threats, and who is the accused, be unimpeached, this Court will hesitate to interfere with a verdict and judgment of conviction.

On appeal from conviction of assault and battery with intent to kill, judgment affirmed.

P. Gbe Wolo for appellant. R. F. D. Smallwood, County Attorney for Montserrado County, by appointment of the Attorney General, for appellee.

MR. JUSTICE GRIGSBY [1] delivered the opinion of the Court.

This case is before this Court upon an appeal from the Circuit Court of the First Judicial Circuit. On the 1st day of June in the year of our Lord nineteen hundred thirty-four, Gummah alias Komnah, the defendant, now appellant, was indicted by the grand jurors of the County of Montserrado for assault and battery with intent to kill, and when arraigned he pled not guilty. A jury was thereupon impanelled ; and the trial began, which trial resulted in a verdict of guilt against him, the appellant, followed by the sentence of the law, to which judgment and other rulings of the trial judge he excepted and appealed the case before this Court upon a bill of exceptions.

From the records of this case it is shown, that on the night of the 16th day of March, 1934, Kofah Proe, the private prosecutrix, who was married to the appellant according to the native customs of the Krus, and who had been living with him in the Borough of Krootown in the Commonwealth District of Monrovia, left him and went to her people on account of ill-treatment received from her said husband, the appellant in this case. Thereafter appellant went and entreated her to return home, and carried with him the sum of two shillings as a solatium, which she refused to accept, as it appears that she had not yet decided to return to him.

This act of Kofah Proe’s apparently aggravated the defendant and caused him to make the following threats : “Since I brought you the two shillings and you refused to go home, if I do something to you, your people will be surprised.”

It is further alleged that the appellant went away and came back in the evening, and began to inquire for Kofah Proe, the private prosecutrix, and of the whereabouts of her sleeping place. The evidence also shows that the door to the room in which the private prosecutrix and Yunnoh Wreh, one of her relatives, slept could be opened by anyone on the outside. And that during this time, and while they were in bed asleep, there was no light in the room ; and that Yunnoh Wreh was lying in front of Kofah Proe, the private prosecutrix, in the bed. Whilst Kofah Proe and Yunnoh Wreh were asleep, someone entered the room and cut the private prosecutrix on her jaw, whom the private prosecutrix testified to be appellant, her husband. And true it was that the wound received by her, the private prosecutrix, surprised all of her people, as well as all of the other people in the neighborhood, in keeping with the threats made by him, the accused. There is nothing in the records of this case to show that the appellant had attempted to break down this particular part of the private prosecutrix’ testimony in regards to the threats made by him, which threats were verified and carried into effect on the night of the i6th day of March, 1934, in giving her a very serious cut on her jaw. This unimpeached testimony of Kofah Proe’s against her husband, the appellant, will lead any thinking mind to believe and conclude, that the threats which the private prosecutrix charged Gummah, the appellant, of making were carried into effect by him, the said Gummah, on the aforesaid night.

We are therefore of opinion that the judgment of the lower court should be affirmed ; and it is so ordered.

MR. CHIEF JUSTICE GRIMES read, and filed, the following dissenting opinion :

I have carefully weighed the arguments advanced in our discussion in chambers by my colleagues who have decided to affirm the judgment in this case; but though I appreciate the reasons by which they have been influenced, I regret my inability to concur with them.

When a case is attempted to be proven, as this is, by circumstantial evidence, the proof consists of several elements not necessarily intimately connected, but yet of such a nature that when brought together they constitute a chain consisting of several links, that lead the mind irresistibly to the conclusion that the charge alleged has been proven by the rules of logic, and the principles of law.

In the case at bar, it has been very clearly shown that Kofah Proe was severely injured by a cut inflicted upon the left side of her face one night as she lay in bed asleep beside a friend named Yunnoh Wreh, who was a stepdaughter of a sister of hers. She and her husband, who is the appellant, having quarreled, she left his house and returned to her relatives. He tried to persuade her to return to him, but she had not consented in spite of his efforts, and he had then threatened that, to use the words in the record, “If I do something to you, your people will be surprised.” On the day of, and the day before, the commission of the crime he had been inquiring where she slept, and had actually been to the house once, when she was away, inquiring for her. All of these are circumstances which tend to show motive, threats, and even an endeavor to locate her sleeping place, which, taken together with the actual commission of the crime in a most dastardly manner, are entitled to great weight; but the salient point is : was it indeed the appellant who, having conceived the crime, made threats, and perhaps some preparation therefor, in pursuit of such a purpose actually carried it out; or did someone else unconnected with appellant having a similar, but unexpressed, design, anticipate his intention and commit the offense? That is really the important issue presented for our consideration.

The injured woman was awakened from sleep by the infliction of the wound, and screamed that her husband had cut her with a razor. She also testified that she saw him skulking from the room. But account should be taken of her having been estranged from her husband at the time of her having been suddenly awakened from sleep by the injury, and the darkness of the surroundings. Her bed-fellow, Madame Yunnoh Wreh, was awakened by the scream, but could not identify appellant. She only saw someone with a torchlight in the parlor threading his way out, but whether or not it was appellant she could not say. Here the prosecution rested ; and yet it would appear from the testimony of the said Kofah Proe, and of the Governor of Krootown called for the defense, that there was available other testimony which, if adduced, would perhaps have supplied the missing links, and thereby removed all doubts. For instance the said Governor was awakened with the information that the woman, Kofah Proe, had been killed. He rushed to the house, which is but a stone’s throw from his, and after a few queries from the inmates who told him that Proe accused her husband, he summoned a body of police, and went to the house where he was told that Gummah alias Komnah lived. Having surrounded the house with the police he aroused the inmates, and demanded the appellant, who soon appeared. The questions which now arise are: Had Gummah been asleep when the Governor and the officers arrived, or had he been merely feigning sleep? Had he been in the whole night or had he but recently come in? In my opinion these have not been satisfactorily answered ; and it is clear that had Gummah been in that house, so far away from the scene the whole night, it was physically impossible for him to have been the perpetrator of the offense.

The private prosecutrix however said that there was a Muhammadan man (and the expression “Muhammadan man” I gather was used in the purely colloquial sense for a Marabout) who had told her that he had seen appellant running, and that he had fallen down; and the Governor of Krootown said that there were persons at the home of a Mrs. Pennoh who had told him the same thing, and shown him the spot where accused had fallen. But neither this statement of Kofah Proe’s nor of the Governor’s is legal evidence against appellant who was not confronted by any of the declarants, and thereby given the opportunity of cross-examining them, hence, coming through such sources it was merely hearsay evidence. Because

“it is requisite that, whatever facts the witness may speak to, he should be confined to those lying in his own knowledge, whether they be things said or done, and should not testify from information given by others, however worthy of credit they may be. For it is found indispensable, as a test of truth and to the proper administration of justice, that every living witness should, if possible, be subjected to the ordeal of a cross-examination, that it may appear what were his powers of perception, his opportunities for observation, his attentiveness in observing, the strength of his recollection, and his disposition to speak the truth. But testimony from the relation of third persons, even where the informant is known, cannot be subjected to this test; nor is it often possible to ascertain through whom, or how many persons, the narrative has been transmitted from the original witness of the fact.” 1 Greenleaf, Evidence, § 98.

Why is it that neither the “Muhammadan man” nor anyone from Mrs. Pennoh’s house was brought to the stand? Kofah Proe, the injured woman, testified that after the inmates had gone to bed her brother, one Saryon, had gone out, and left the door open, but that was also hearsay. Why was he not produced? Had Saryon himself testified to what Kofah Proe said he had said, Gummah’s presence in the closed house without any of the many inmates having been awakened by his entrance could have been accounted for ; and had he, the “Muhammadan man,” or any of the persons at Mrs. Pennoh’s testified to Gummah’s having been seen running, and his having fallen that night, soon before the news of the crime began to spread, that, added to the other facts actually proven, would have been a very important link; and, moreover, would have tended to destroy the alibi accused endeavored to set up by contending that he was in his bed asleep when the crime was committed. Moreover, the place where he was alleged to have fallen might have been examined by daylight, and perhaps bloodstains, or some other indications, may have been found, connecting him with the offense. In the absence of these missing links I cannot say that I have an abiding conviction to a moral certainty of the guilt of the accused without which no conviction can legally be upheld, especially as we decided only at the last term that the object of a trial in criminal cases is to secure, if at all, juridical conviction.[2]

Nor am I sure that the jury was not influenced by some of the hearsay evidence hereinbefore indicated that was illegally submitted to them.

It is, therefore, my opinion that the motion for a new trial made by appellant should have been granted under the circumstances; and that the trial judge having denied the said motion, the case should now be remanded for him to correct his error.

These are the reasons why I have not found it possible to affix my signature to the order of our Court affirming the judgment of the court below.

[1] The original draft of this opinion was prepared by Mr. Justice Russell who left the Capital after its consideration by the Bench; whereupon, it was completed and read by Mr. Justice Grigsby,
[2] See supra, Yancy v. Republic, 105, 115.