THOMAS MacDESHIELD, Appellant, v. REPUBLIC OF LIBERIA, Appellee.

APPEAL FROM THE CIRCUIT COURT, FIRST JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued May 22, 23, 1973. Decided June 8, 1973. 1. In cases of homicide, under certain circumstances statements made by the 2. deceased are admissible in evidence as an exception to the hearsay rule. When an indictment charges that a dangerous weapon had been used to inflict fatal wounds and it is proved that only defendant’s hands were used to cause the injuries, it will not be deemed a variance of proof. 3. Where an injury has been inflicted upon a person, intent on the part of the perpetrator will be presumed. 4. But where malice prepense therein is not indicated by the record, the defendant will be deemed guilty of manslaughter only when death has resulted, and the judgment modified accordingly, should he have been found guilty of murder and sentenced therefor. The appellant was charged with having beaten his paramour, inflicting injuries from which she died days later. There were no eyewitnesses to the alleged beatings, and most of the testimony connecting appellant to the crime charged was based on statements made by decedent to the witnesses. The Supreme Court in considering the appeal from the judgment sentencing appellant to death for the murder after a jury found him guilty, deemed the statements made by decedent could be admitted in evidence as an exception to the hearsay rule because of corroborative evidence it found in support of the statements, emphasizing that the law recognizes exceptions to the hearsay rule when the declarant is deceased and cannot testify. However, after examining the evidence, the Supreme Court was of the further opinion that it could support a finding of manslaughter but not murder, since malice prepense had not been indicated. Therefore, the judgment of the lower court was modified accordingly and the appellant adjudged guilty of manslaughter and sentenced therefor. 131 132 LIBERIAN LAW REPORTS Richard A. Diggs and Jacob H. Willis for appellant. Solicitor General Roland Barnes and Jesse H. Banks, Jr. for appellee. MR. Court. JUSTICE HORACE delivered the opinion of the The appellant in this case was indicted by a grand jury of the Circuit Court for the First Judicial Circuit, Montserrado County, at its February 1971 Term, for allegedly having murdered Benetta Diggs-Reeves. The indictment in its main part is set forth. “On or about the 24th day of December, 1970, in the City of Monrovia, Montserrado County, Republic of Liberia, Thomas MacDeshield, defendant aforesaid, then and there not having the fear of God before his eyes but moved and seduced by the instigation of the Devil, without legal justification or excuse, in, at, upon and against the body of Benetta Diggs-Reeves, unlawfully, wilfully, wrongfully, intentionally, deliberately, purposely, feloniously, with premeditation and deliberation and with malice aforethought, did make an assault with a certain dangerous weapon presently unknown to the grand jury, which the defendant aforesaid then and there had and held in his hands . . . wounding the face, head, neck and several other vital parts of the body of Benetta DiggsReeves, and from the said beating Benetta DiggsReeves did take seriously ill and languish for several days, up to the 3rd day of January, 1971, when at the Catholic Hospital in the peace of God and the Republic did die.” The trial of the case was held in the May 1971 Term of the Circuit Court for the First Judicial Circuit, Montserrado County, Judge James M. T. Kandakai presiding by assignment. Defendant was arraigned and entered a plea of “not guilty,” after which a jury was selected, LIBERIAN LAW REPORTS 133 sworn, and empanneled and informed of defendant’s plea. The trial was regularly conducted, witnesses testifying for the prosecution and defense. After evidence was rested on both sides, the trial judge charged the jurors, who retired to their room of deliberation and afterwards returned with a verdict of guilty against defendant. A motion for a new trial was filed, resisted, and denied. Final judgment was rendered against appellant on June 4, 1971, sentencing him to be hanged. It is from this final judgment that this case is before us for review on a six-count bill of exceptions. We think it proper at this time to briefly review the evidence in order to gain a true perspective of the entire case. The following witnesses testified for the prosecution: Augusta Reeves, Annie Neal, Gladys Smith, Robertetta Harmon, the pathologist, Dr. T. C. 0. Chiori, Rozena Reeves, and Wellington Smith. It should be remembered that none of these witnesses were present when the alleged beating resulting in the death of decedent took place. Augusta Reeves, one of the daughters of decedent, the first witness to testify, said that on December 24, 1970, appellant’s little boy staying with him was sent by her mother, who was apparently at appellant’s home, to call her brother, and she told her brother to go ahead and she would follow. Upon arriving at appellant’s home she saw her mother with her face “bruised up” and blood all over her dress, for appellant had given her the first beating, and in her presence he took a pair of scissors and pointed at decedent and said he would kill her. She then went to do some shopping and later she arrived at her mother’s home who told her that appellant had beaten her again and knocked her head against the window. She then took her mother to Cooper’s Clinic where she was given some tablets. After that they took her to the 134 LIBERIAN LAW REPORTS Catholic Hospital where she received treatment for several days, but the last time they took her there she was hospitalized and later died the same day. She also stated that the little boy who was living with appellant told her that appellant had hit decedent in the stomach with a pestle. This last statement was denied by the little boy who later testified for the defense. The next witness to testify was Mrs. Annie Neal, sister of the decedent, whose testimony as to the beating was only what had been told her by her nieces, Augusta and Rozena Reeves. She also testified to her encounter with appellant after she had been called to decedent’s bedside on January 3, 1971, and had seen her critical condition. In that encounter she related that when she told appellant about decedent’s condition and that he should go along with them to the hospital, he stated that he did not know how the fuss between him and decedent had occurred. She then asked why he had not been to see her sister since December 24, but only had sent her a note expressing his regrets for what happened. He told her that Rozena Reeves, decedent’s daughter, had sent him a message that if he went to her mother’s place it would not be good for him. She also testified that appellant did go to the hospital twice on January 3, 1971, the second time just after the death of decedent. She further testified that the autopsy had been performed on her sister’s body upon authorization of the Department of Justice. She also said that when she asked appellant why he had beaten her sister he pointed to a neighbor’s house and said a personal friend was living there who had been approaching decedent, apparently for amorous reasons. The third witness to testify for the prosecution was Gladys Smith, who said that on December 25, the day after the alleged beating, she went to decedent’s home and found her with a small plaster on the left side of her face and very restless. Seeing decedent’s condition she LIBERIAN LAW REPORTS 135 took her to her home and applied hot applications to the body of decedent. All this time decedent was not talking. Later on, when she opened her eyes, she asked for Mr. Smith, her friend’s husband, who was called by Gladys. When he came she said “Mac beat me, all over, especially my head and neck.” This expression to her husband was made in the presence of the witness. She then sent for decedent’s daughter and advised her to take her back to Cooper’s Clinic, but the daughter decided to take her to the Catholic Hospital, where she was treated. The next morning she visited her and she seemed to be coming along, but complained of her head and neck. Some days later she was informed of the critical condition of decedent. When she went to visit her she found her in a state of unconsciousness and later that day decedent was taken to the hospital, where she died. The fourth witness was Robertetta Harmon who, aside from testifying to what had been told her by decedent’s daughters, confirmed the testimony of Annie Neal with respect to the encounter with appellant on the day of decedent’s death as well as the note written by appellant to decedent. She also testified to decedent’s face being swollen when she saw her. The fifth witness was Dr. T. C. 0. Chiori, the pathologist, the crux of whose testimony was confirmation of the autopsy report he had submitted to the effect that there were a few bruises on the right side of decedent’s face and the upper part of the back of the neck, and that the cause of death was intracranial (subdural) hemorrhage, which could have been caused by head injuries. The sixth witness for the State, Rozena Reeves, one of the daughters of decedent, tended mostly to confirm the testimony of Augusta Reeves by testifying that her mother had told her that it was appellant who beat her. She also confirmed testimony about the note written by appellant to decedent, and when on cross-examination 136 LIBERIAN LAW REPORTS she was asked how she knew the note to be written by appellant, she said because it was sent by appellant’s boy. When on the witness stand for the defense, the boy admitted taking the note from appellant to decedent on December 26, 1970. The last witness for the State, Wellington Smith, confirmed the testimony of Gladys Smith by relating that decedent told him that appellant had beaten her. He also said that on that day he helped to take decedent to the hospital, and her statement that she had beaten by appellant were the last words he heard from her before her death. We now come to the testimony for the defense. Appellant took the stand to testify in his own behalf. He commenced his testimony by telling how he and decedent established their relationship, clearly implying that decedent forced herself upon him. He told how he and decedent had lived peaceably and lovingly. That on the fatal day, December 24, 1970, when he is alleged to have beaten decedent, he was in fact engaged in trying to roof a house, which he had promised to do as a Christmas gift to decedent as a place where she would later open a restaurant and shop, and that the money being used for that purpose was nearly all of his December salary which he had just received. He also said that on the morning of December 24, 1970, when he and decedent had finished purchasing the zinc for the roof, she left and he never saw her again that day. He denied ever touching decedent and gave as his reason that she was a frail and quiet person. He admitted the encounter with Annie Neal, Robertetta Harmon, Rozena Reeves, and C. Reeves but denied he accused his paramour of infidelity or that he admitted beating her. He also admitted having sent the undated note introduced into evidence by the prosecution but stated that as he had been ill himself since December 24, 1970, he was writing to apologize to her for not seeing her and that the note was dispatched on December 30, LIBERIAN LAW REPORTS 137 197o. His own witness, Emmanuel David, later, on the witness stand said he took the note to decedent on December 26, 1970, the Sunday after Christmas. For clarification on this point, the note in question is quoted. “Dear Ben: “Darling forgive me, I am too sorry of what happened to you. I will talk with you when I feel better. I am sick that is why you have not seen me. Please let me know how you are feeling today. I hope you will think over it. “Bye. “MAc.” He also testified that he went to the hospital on the day decedent died, and after her death offered the family to assist in her funeral expenses but they refused. He was told by a friend that it was rumored that he was hiding, and when he heard about it he reported himself to the police, at which time he was arrested. The next witness for the defense was Dr. J. A. Blasco Garcia, the physician, who treated decedent before her death at the Catholic Hospital and confirmed a statement he had made about his patient after her death. He stated that he does not issue death certificates, and that he wrote a statement because he had been asked to do so by the pathologist. He admitted that he had ascribed the cause of death to a disease she had had for more than one week which had produced failure of the heart, from which she died. On cross-examination he stated that the pathologist is the proper person to determine cause of death. Because this point was emphasized in their briefs and oral argument before us by both sides we will say more on this point later. The other defense witness, Lydia Redd, merely testified to having passed by the place where appellant was roofing a house, to ask him about an amount he owed her and Benetta was standing at the door. When she re- 138 LIBERIAN LAW REPORTS turned later decedent was not there, and she was told by appellant that decedent had gone to the market to buy food. The last witness for the defense, Emmanuel David, who lived with appellant, testified that appellant after getting his pay gave him $5.00 to buy clothes and sent him to buy beer for appellant and decedent to drink. When they were through drinking, decedent left and appellant went to bed. Later, decedent returned, pried the door open with a knife and went into the room and hid appellant’s money. The next morning he went to the waterside to buy his clothes, when he came back the door was locked and decedent was inside. She later opened the door and upbraided him about troubling “Uncle Mac” for money, then she packed her clothes and went home before dark. He said that if appellant had beaten decedent he would have known because he was around. He denied telling decedent’s daughter, Augusta Reeves, that appellant had beaten decedent with a pestle. He did admit, however, that he took a note from appellant to decedent on the Sunday after Christmas, which was December 26, 1970. This in brief is the gist of the evidence. We will now proceed to deal with the bill of exceptions. Count one poses the question of who was best able to determine the cause of death, the physician who attended the patient before her death or the pathologist who performed the postmortem examination. Both persons being qualified medical practitioners, the problem might have been difficult to resolve, but for the fact that the physician who attended the patient himself acknowledged that the pathologist was the person qualified to determine cause of death. Dr. Garcia, the attending physician, was questioned on direct examination. “Q. Say also if you can as a physician who attended Mrs. Reeves whether after her death you issued a death certificate, or a statement? LIBERIAN LAW REPORTS 139 “A. I do not issue death certificates. And because the case was sent to the pathologist in the Kennedy hospital, he asked me for a statement, what happened to the lady in a few hours. And I sent the statement to the Doctor in charge.” As he was on cross-examination: “Q. So then you will agree that the best person qualified to give the cause of death is the pathologist who performed the autopsy, not so? “A. Yes, the pathologist is the only one to determine the cause of death.” So, then, to our mind there is no doubt who was best qualified to pronounce the cause of death. We, therefore, find the first count to the bill of exceptions unmeritorious. The second count deals with the refusal or neglect of the trial judge to instruct the jury on the points of law requested by the defense counsel. Perusing the charge of the judge to the jury we do observe that he did not specifically charge the jury on the points the defense had requested him to charge them on. This was error on the part of the trial judge, but taking into consideration all the circumstances of the trial and the evidence adduced thereat we do not consider the error a reversible one. The third count of the bill of exceptions charges the trial judge with telling the jury that one of the witnesses for the prosecution testified to the effect that decedent told her that if she should die, they should hold defendant responsible, whereas in the evidence no witness gave such testimony. Resort to the record, however, reveals support for the court’s position in the testimony of Annie Neal, on page six of the minutes of court for May 12, 1971. “They (referring to decedent’s daughters) took her to Doctor Cooper’s Clinic and she felt no better and the next day being the 25th, they carried her to the Catholic Hospital twice that day. And she asked her 140 LIBERIAN LAW REPORTS mother whether she could come and tell us and her mother said no. That we should wait in case something happens to her then Mac would be the cause.” The contention in count three of the bill of exceptions, having been contradicted by the record, is rendered unmeritorious. We come now to the most important count in the bill of exceptions, which deals with the verdict, stating that it was contrary to the weight of the evidence adduced at the trial. On this point both sides argued fervidly, the appellant’s counsel stressing that an indictment must be proved as framed and that the prosecution having averred in the indictment that decedent met her death by a dangerous weapon held in the hand of appellant, when no weapon was produced, the second part of the corpus delicti, the criminal agency, was not proven at the trial; and that all of the evidence adduced was hearsay evidence which under the best evidence rule should be discarded. On the other hand, the State’s counsel argued with equal vehemence that although the evidence relating to the criminal agency might be considered hearsay, yet under the exceptions to the hearsay rule such evidence had probative value and could not be discarded or ignored. In carefully going over the testimony we find it true that there was no eyewitness to the alleged beating of decedent by appellant, nor do we find in the evidence, except by inference, what was used in inflicting the mortal wounds, or as the pathologist put it, the intracranial (subdural) hemorrhage. We do find, however, that on the very day the incident is supposed to have happened, the daughter of decedent, Augusta Reeves, went to where it happened and was told by decedent that appellant had beaten her, and later on that day when decedent arrived home she said that appellant had given her a second beating. We also find that decedent told Wellington Smith in the presence of his wife, Gladys, that appellant had beaten her all over, especially her head and neck and that LIBERIAN LAW REPORTS 141 Gladys Smith had to apply warm applications to decedent’s body. We find further that at another time decedent told her other daughter that appellant had beaten her. At the trial it was impossible for decedent to give positive evidence as to the beating and what was used to administer it because she was dead. Taking these statements in conjunction with the autopsy report and the pathologist’s testimony on the stand that the hemorrhage could have been caused by head injuries, we find it difficult to ignore the testimony of the witnesses as mere hearsay. Our Civil Procedure Law, Rev. Code r :25.6( 1) , speaks of the best evidence: “The best evidence which the case admits of must always be produced ; that is, no evidence is sufficient which supposes the existence of better evidence.” In the circumstances, it is our view that what decedent told several persons at different times cannot be so easily brushed aside since she could no longer speak for herself. That specie of evidence, to our mind, was the best that the case admitted of. Moreover, the note appellant sent decedent which we have hereinbefore quoted in this opinion suggests that something had happened between them. She told her children that it was his beating her; he said it was an apology for not having seen her for many days. Looking at the tenor of the note we prefer the former explanation. It is generally understood that hearsay evidence does at times have probative value. “While the hearsay rule has been asserted and applied so often that it is not questioned, it seems safe to assert that the courts have generally been willing to relax the rule in the interest of justice. It is recognized that hearsay may be relevant and material. In some cases it may be the only relevant and material evidence, as where a sole witness to a transaction is dead or beyond the reach of a subpoena. While the mere fact that a witness is dead does not render his declara- 142 LIBERIAN LAW REPORTS tions admissible, if in addition to the death of a witness there are circumstances which attribute verity to his declarations, the hearsay rule may be relaxed to permit the admission of such declaration. For example, if a witness is deceased, his declarations against his own interest may be admitted in evidence as relevant and material to the issues in the case on the theory that he would not tell an untruth against his own interest. Again, the dying declarations of the victim of a homicide are deemed admissible notwithstanding they are hearsay, on the theory that there is little likelihood of a conscious falsification of statements made under such circumstances. Most of the exceptions to the hearsay rule are based upon the necessities of the case. If there is a possibility of obtaining testimony other than hearsay, the law does not generally permit the introduction of hearsay.” zo Am. JuR., Evidence, � 453� “Where the conditions of relevancy exist, and the evidence of the declarant is rendered unattainable by death or equivalent disability, and no other evidence is attainable, a case of hardship is presented by the strict operation of the hearsay rule, which has resulted not only in the establishment of certain recognized exceptions, as declarations as to pedigree, in course of business, etc., but in an effort to extend the ‘best evidence rule,’ in its broad application, to unsworn statements. In the modern law of evidence this ‘best evidence rule’ is not only a rule regulating the receipt of secondary evidence of the contents of certain written instruments, but also a general principle of administration recognized or employed by the courts in handling all the rules of evidence, especially within the realm of judicial discretion. In this latter aspect the principle as usually stated–the best evidence of which the case admits should be given–may operate LIBERIAN LAW REPORTS 143 either as ( ) a rule of requirement, or (2) a rule of indulgence. In other words, the principle, generally applied, not only requires that the best evidence should be offered, but that, when offered it should be deemed sufficient. As a rule of requirement, the ‘best evidence’ principle, where the declarant is alive and accessible, or the fact to be shown is one which is in its nature susceptible of being proved by witnesses who can speak from their own knowledge, evidently accords with the hearsay rules. On the other hand, considered as a rule of indulgence, where the declarant is dead or otherwise unavailable, and no further evidence of the fact can be had, the report of his statement would be the best evidence of the fact and be receivable as such. The state of the authorities indicates that in certain jurisdictions this principle of receiving secondary evidence where the primary cannot be obtained has been applied to the use of unsworn statements in other cases than the generally recognized exceptions above referred to.” 16 CYC. 1207-8. “Exceptions to Rule. The law of evidence recognizes numerous exceptions to the general rule which excludes hearsay evidence. The courts have generally been willing to relax the hearsay rule in the interest of justice. Various. of these exceptions have been applied in homicide cases. In fact, one of the better known exceptions, namely, that under which dying declarations are admitted, is according to the great weight of authority, applicable in the United States, in the absence of statute, only in a criminal prosecution for homicide or for abortion in which the death of the victim is an element of the offense. Other exceptions to the hearsay rule applicable in civil and criminal cases generally render admissible, in prosecutions for homicide statements constituting part of the res gestae, declarations against interest, and other 144 LIBERIAN LAW REPORTS statements of a nature which renders them admissible, notwithstanding their hearsay character.” 26 Am. JUR., Homicide, � 367. Much stress was also laid on the fact that the “dangerous weapon” alleged in the indictment was never produced or proved. This seems, on the surface, to be true but when we take into consideration that decedent said appellant beat her, it can be reasonably presumed that he did it with his hands, especially where decedent told one of the witnesses that he pushed her head against the window. “The law has always been fairly liberal to the prosecution so far as the question of variance between the instrument of death alleged and that proved is concerned; and where the instrument laid and that proved are substantially of the same character, capable of inflicting practically the same nature of injury in substantially the same manner, there is no variance. The question in each case is whether the nature and character of the injury and the manner and means of inflicting it as proved are practically and substantially, although not identically, the same as that alleged. If death resulted from ‘wounds, fractures,’ etc., caused by strokes or blows, it is not necessary that they be proved to have been inflicted by the particular instrument charged in the indictment; and if the ‘wounds, fractures,’ etc., which caused death were inflicted by kicking and stamping, or either, the allegation of the indictment is as well sustained as if they are proved to have been inflicted by ‘bricks and stones cast and thrown’ as charged. Indeed, if it is proved without objection that the wound was wilfully and maliciously inflicted with a dangerous weapon of another kind, such proof is sufficient to sustain the indictment. Considerations of expedition and justice have steadily tended away from technicalities in this respect, and in many jurisdictions, either by statute or judicial decla- 145 LIBERIAN LAW REPORTS rations, the rule has been established that the indictment need not allege the means used to cause the death, and in such cases, the instrument or agency employed need not be set out. Statutes declaratory of this rule have been held not to be in violation of the constitutional right of the accused to know the nature and the cause of the accusations against him.” 26 AM. JUR., Homicide, � 280. The next counts of the bill of exceptions, five and six, refer to the denial of a motion for a new trial and the exception taken to the final judgment. Our review of count four of the bill of exceptions dealing with the evidence should leave no doubt as to this court’s mind on the motion for a new trial, and to some extent as to the final judgment. We now come to consider another point which was argued at length before us, that of premeditation, deliberation, and malice prepense. Appellant’s counsel argued that, taking the evidence as a whole, there is no proof of premeditation, deliberation, and malice prepense. Appellee’s counsel held the view that malice and premeditation may be inferred from the acts of a person for, as far back as 1885, this Court held that where an injurious act has been committed on the body of any person a bad design and intention on the part of the perpetrator will be presumed. It is for the accused to show that it was otherwise and excusable. Walker v. Republic, i LLR 186 (1885). Malice aforethought, as an element of the crime of murder, may be inferred from a deliberate act, and need not be grounded on actual or malevolence. Taylor v. Republic, [1961] LRSC 33; 14 LLR 524 (1961). In going over the record carefully we endeavored to find any showing of premeditation and malice, but were unsuccessful. We are convinced that homicide was committed but we are not so convinced that it was murder. Let us remember that these two persons were lovers. Let us also remember that there was no eyewitness to the in- 146 LIBERIAN LAW REPORTS cident. One witness for the defense, Lydia Redd, testified that when she saw decedent on December 24, 1970, at the door of the house which appellant was roofing, she was smiling. Another witness for the defense, Emmanuel David, testified that he was sent to buy beer, and the two of them, appellant and decedent, sat down to drink. Anything can happen if people drink too much, though there is no evidence that they did. In any case, we have searched the record and our conscience and can find no justification for malice prepense and premeditation. Even the note put into evidence by the prosecution, hereinbefore quoted, suggests some sort of altercation and perhaps violence, but no malice. Our statute on manslaughter is contained in the Penal Law. “Any person who without legal justification or excuse unlawfully kills any human being, malice prepense not appearing from the circumstances . . . is guilty of a felony and punishable by imprisonment not exceeding five years.” 1956 Code 27 :233 ( ) . It is our opinion that the circumstances of this case fall within the scope of this statute. The verdict and judgment of guilty of murder, because of what has been said in this opinion, is set aside, and we hereby adjudge the appellant guilty of manslaughter, and he is sentenced to imprisonment for two and one-half years from the date he was first arrested and imprisoned. It is so ordered. Reversed as modified.