REPUBLIC OF LIBERIA, Appellant, v. JOHN WEAFUAH and His Honor, JAMES W. HUNTER, Judge Presiding over the Circuit Court of the First Judicial Circuit, Montserrado County, Appellees.

APPEAL FROM RULING IN CHAMBERS ON APPLICATION FOR CERTIORARI TO THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued April 14, 1964. Decided May 22, 1964. 1. Unlike the requirements as to motions for new trials, which must be filed within four days after verdict, there is no required time within which to file in arrest of judgment; yet because the law gives every defendant against whom the jury returns a verdict the right to file for new trial and in arrest of judgment it would seem unwise, if not irregular, for a judge to render judgment immediately ruling in denial of a motion for a new trial without allowing some time–no matter how short–for the defendant to enjoy his right to file in arrest of judgment. 2. The proper exercise of judicial discretion in criminal trials should, in fairness to the rights of the accused and to society, be exemplified by acts of the court, the impartiality of which might be readily admitted by both sides. Only by such acts could justice be seen to have been done to both sides. 3. Discretion as to the length of time a sentence should cover is entirely the responsibility of the trial judge so long as he keeps the sentence within the number of years prescribed by law. 4. It is not within the authority of a judge to decide whether or not to sentence a defendant found guilty of crime by an empanelled jury, when the evidence shows that the defendant had indeed committed crime, unless the judge sets the verdict aside. 5. A criminal court has a duty to society to punish the commission of crime and thereby discourage and prevent it, and an equal duty to an accused to see that he gets a fair and impartial trial and that his punishment, upon conviction, is in harmony with the spirit and intent of the law of the land. 6. The corrective competence of a writ of certiorari ends with the determination of the case out of which it grows. Appellee Weah was indicted and tried on charges of murder. The jury returned a verdict of guilty of manslaughter, whereupon appellee Hunter, as presiding judge, sentenced appellee Weah to a retroactive term of imprisonment equal to time already spent in prison. Appellant applied to the Justice presiding in Cham122 � LIBERIAN LAW REPORTS 123 bers for a writ of certiorari. The application was denied and, on appeal to the full Court, the ruling in Chambers denying the application for certiorari was affirmed. Attorney General J. Dossen Richards for appellant. C. L. Simpson for appellees. MR. JUSTICE PIERRE delivered the opinion of the Court. This application alleges that irregularities were allowed and committed by the court during the trial of a case of homicide in the Circuit Court of the First Judicial Circuit, Montserrado County. The jury returned a verdict for manslaughter, whereas the indictment had charged murder. A motion for new trial filed by the defendant was not resisted by the prosecution. Notwithstanding this clear indication that both sides desired another trial of the case, the court sua sponte denied the motion and there and then rendered judgment. It is significant that both parties took exceptions to the ruling denying the motion for new trial ; and this is one of the grounds laid in the petition and alleged to be be an act prejudicial to the prosecution’s case for which certiorari was prayed. Another ground laid in the petition was that although the judge rendered judgment of conviction for manslaughter contrary to the desire of both sides, his judgment sentencing the guilty defendant to a term of imprisonment was made retroactive and was for the exact tim the accused had spent in jail from the day of his arr st on the capital charge of murder; which is to say, one year, six months and 28 days. The guilty defendant was released from imprisonment on the very day that judgment was rendered against him, without having served any of the time the verdict of the jury must have intended. The prosecution has contended that this was 124 LIBERIAN LAW REPORTS error on the learned judge’s part and that this error was prejudicial to their side of the case. The third point of the petition has been denied by counsel who represented the defendant at the trial and who is now of counsel representing the respondent judge in certiorari. This point is to the effect that, during the trial of the case, and while the jury were sitting in court, counsel for the accused remarked that the case was already made up for the defense, or some such words which implied that he knew in advance what the verdict would be. Petitioner therefore claims that the judge’s subsequent rendition of judgment in the face of an unresisted motion for new trial, as well as his sentencing of the defendant for the exact time already spent in jail awaiting trial for murder, lent color to the strange and improper expression of the defendant’s counsel made during the trial. Of course, as I have said earlier, counsel for the defendant has disavowed the interpretation placed on the statement by the prosecution; but nevertheless, the prosecution has insisted that this expression made in the hearing of the judge and jury, must have reflected factors which affected the outcome of the case. We would like to comment that, the verdict of the jury being unsatisfactory to both sides, any mischief the expression could have done to the decision of the jury would seem to have been averted. Notwithstanding this, we do not hesitate to denounce the expression made before court and jury during the trial as being irregular and incompatible with what should be expected at a fair and impartial trial. Three days after judgment had been rendered and the defendant had departed from the precincts of the jail in keeping with the court’s sentence, the prosecution petitioned for certiorari and requested the Justice presiding in Chambers to review the behavior of the trial judge. Mr. Justice Harris, acting in Chambers for Mr. Justice Pierre, heard the petition and passed upon the returns LIBERIAN LAW REPORTS 125 filed on behalf of the trial judge; and he ruled that the petition be denied for want of merit. From this ruling of Mr. Justice Harris the prosecution has appealed to this Court en banc. We are unanimous that there was no other position the Justice presiding in Chambers could have taken under the law defining the office of the writ of certiorari as that writ is used in our practice. However, the seriousness of the charges of alleged irregularities of the trial court, which appear in this petition and have not been denied in the returns of the respondent judge compels a review of these charges in some detail for the protection of society and the rights of parties in future cases. The strongest argument against the petition is that our law forbids the prosecution from seeking appellate review in criminal cases except: ( ) on a motion to quash an indictment, and (2) on a motion in arrest of judgment. It is contended that the grounds laid in the petition do not grow out of either of these two motions and that therefore the prosecution could not have legally excepted to the ruling on the motion for new trial, as was done. This is not the first time that this question has been raised in respect to the inability of the prosecution to bring irregular conduct in the trial of criminal cases before the Supreme Court for review; and there would seem to be an increasing need for some legislation which would give the prosecution the right to appeal all issues of law raised in the hearing of criminal cases. There have been numerous instances where errors committed in criminal trials–errors not related either to a motion to quash or to a motion in arrest of judgment– have been committed with adverse effects on the results of the trials; and because, under our present statutes, the prosecution is powerless to seek appellate relief, criminals who should have been punished were allowed to go free. This threatens the safety of our political society, because it affords guilty criminals avenues whereby, after 126 LIBERIAN LAW REPORTS having deliberately committed crimes, they walk out of court free because the prosecution could only appeal certain legal issues and not others. It is our opinion that there is as much reason for the prosecution to be able to appeal from a ruling on a motion for new trial as there is to allow the prosecution to appeal rulings on motions to quash and motions in arrest of judgment. Another point raised in these proceedings is to the effect that immediately after the judge ruled against the motion for new trial he there and then rendered judgment. This act of the judge is most significant in view of the fact that both parties had disagreed with his ruling denying the motion and had entered exceptions to it. Rendering judgment immediately after the ruling, under the circumstances, is also brought into sharper focus when we consider the contention of the petitioners in their argument here, to the effect that, had the judge not been so hasty in rendering judgment the petition might have been filed within the time prescribed by statute or before the case was terminated by judgment. Whilst it is true that, unlike the requirements in respect to motions for new trials, which must be filed within four days after verdict, there is no required time within which to file a motion in arrest of judgment; yet because the law gives every defendant against whom the jury returns a verdict the legal right to file a motion for new trial and in arrest of judgment, it would seem unwise if not irregular, for a judge to render judgment immediately after ruling denying a motion for new trial, without allowing some time–no matter how short–for the defendant to enjoy his right to file a motion in arrest of judgment, if he should elect to do so. Here again, our statutes have made no provision and thereby leave a void in which the rights of parties in a criminal trial could be easily endangered. However strange the judge’s conduct might seem in denying a motion for a new trial, which motion had been LIBERIAN LAW REPORTS 127 sanctioned by both parties, and although we feel strongly that only a few judges would have denied such a motion when it was clearly shown that it was the desire of both parties that it should be granted, the granting or denial of a motion for new trial lies in the discretion of the trial court. The exercise of that discretion might be one of the best tests of an efficient and impartial judge, depending to a large extent on the circumstances surrounding the denial or granting of the motion. In such circumstances as appear in this case the judge, in disregarding the desires of both parties, placed himself in a dilemma where he was bound to incur the justified criticism of both sides. In other words, whereas the defendant’s motion sought to have another jury pass upon the facts with a view to securing a verdict of acquittal, the prosecution’s acquiescence in the defendant’s request for new trial must have been based on a belief that the charge of murder laid in the indictment could have been proved before another jury. In fact, this was what the Attorney General argued before this Court. The proper exercise of judicial discretion in criminal trials should, in fairness to the rights of the accused and for the safety of society, be exemplified by acts of the court, the impartiality of which might be readily admitted by both sides. Only by such acts of a court could justice appear to be done, or could justice be seen to have been done to both sides. In considering the sentence which the judge imposed and the circumstances surrounding its imposition, it does seem peculiar for him to have fixed exactly the same period of time the accused had served in jail pending trial for a capital offense as retroactive punishment for a lower degree of the crime. In other words, although the jury found the accused guilty of manslaughter, he was not punished on that verdict but was released from detention on the day of his sentencing because he had awaited trial for one year, six months and 28 days. The 128 LIBERIAN LAW REPORTS question arises–as indeed the prosecution did raise it– has the defendant served the sentence which should have followed the jury’s verdict? Punishment for the crime of manslaughter as prescribed in 1956 Code, tit. 27, � 233, is imprisonment for a period of not more than five years. Discretion as to the length of a sentence is entirely the responsibility of the judge so long as he keeps the sentence within the number of years prescribed by law. Therefore, it was discretionary with him to have given the guilty defendant any length of time as punishment which was within five years. It was also discretionary with him to have taken into consideration the length of time the accused had remained in jail awaiting trial; that is the one year, six months and 28 days But it was not with the judge’s discretion to have released the guilty defendant when the jury had found him to be fit subject to be punished for crime unless the judge set their verdict aside and awarded a new trial. It is not within the authority of a judge to decide whether or not to sentence a defendant found guilty of crime by an empanelled jury unless he sets the verdict aside. In this case the trial judge must have agreed with the verdict for manslaughter returned by the jury, since he proceeded to sentence on that verdict; therefore it was irregular for him to have imposed a sentence in language which enabled the guilty accused to evade the punishment which should have resulted from the verdict. It is not proper or legal for punishment of an accused found guilty of crime to be made to commence before he has been found guilty by a jury of his peers, and for that punishment to end at the moment of his sentencing. Punishment for crime can properly commence only after conviction; so the term of imprisonment adjudged as punishment for the crime of which the jury found the defendant guilty in the present case should have commenced to run after judgment had been rendered; if not the whole of it, then most certainly a portion of it. A LIBERIAN LAW REPORTS 129 criminal court has as much a duty to society to punish the commission of crime, and thereby discourage and prevent it, as it has to see that the accused gets a fair and impartial trial and that his punishment upon conviction is in harmony with the spirit and intent of the law of the land. These several points of grave irregularities on the part of the trial court have been reviewed and commented upon in this opinion in order to govern future hearings and handling of criminal cases. The surrounding circumstances and our statute defining the office of the writ of certiorari make it impossible for us either to correct or to undo these several apparent errors. The corrective competence of a writ of certiorari ends with the determination of the case out of which it grows ; as in this case where the writ was applied for after judgment had been rendered and the sentence had already been carried out. Here is the applicable statutory provision: “An applicant for a writ of certiorari shall submit to the Supreme Court or any Justice thereof a verified application or petition, which shall contain the following ” (a) A statement that the applicant or petitioner is a party to an action or proceeding pending before a court or judge thereof or an administrative board or agency.” 1956 Code, tit. 6, � 1201 (emphasis supplied). We are therefore of the opinion that the Justice presiding in Chambers was legally right in denying the petition and refusing to order issuance of the peremptory writ of certiorari. Affirmed.