Oruma et al v RL LRSC 2; 21 LLR 14 (1972)

1. MACHIEL ORUMA, Appellant, v. REPUBLIC OF LIBERIA, Appellee, and

2. REBECCA GBARGBA, Appellant, v. REPUBLIC OF LIBERIA, Appellee.

1. APPEAL FROM THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT,

MARYLAND COUNTY.

2. APPEAL FROM THE CIRCUIT COURT, SEVENTH JUDICIAL CIRCUIT,

GRAND GEDEH COUNTY.

Argued March 14, 1972. Decided April 21, 1972.

1. The Supreme Court has always been concerned with applications initiated by the State which negate the prosecution’s position at the trial, and examines the record, therefore, prior to decision.
2. A jury may not be directed by the trial judge to amend substantively its verdict in open court
3. It is right, in justice, for the prosecution to abandon a case when the facts do not support the charge, for the primary duty of a prosecutor is not to convict but to insure justice.
4. When the husband has been acquitted at a separate trial of the one act of sodomy charged by his wife, she cannot thereafter, in all reasonableness, be convicted at her trial on the same charge.

The two cases were dealt with in one opinion because in both the Republic of Liberia initiated applications. In case 1, the State asked for remand based on the conduct of the trial judge who appeared to have threatened the jury, in open court, with contempt of court unless the verdict was changed, which was done at once. An individual juror also charged coercion by the other jurors during deliberation. In case 2, the defendant had accused her husband of committing sodomy upon her. He was acquitted at a separate trial, but she was convicted on the charge arising from the same act. The State moved for her discharge without day, for the apparent reason that her conviction amounted to an absurdity. In case 1, the Court reversed the judgment and remanded the case to the lower court; in case 2, the appellant was ordered discharged without day, the judgment being reversed.

In case 1, J. Dossen Richards for appellant. In case 2, Harper S. Bailey for appellant. The Solicitor General for appellee in both cases.

1. JUSTICE HORACE delivered the opinion of the Court.

These two appeals, the first from the Circuit Court for the Fourth Judicial Circuit, Maryland County, and the second from the Seventh Judicial Circuit, Grand Gedeh County, in keeping with regular assignment were called for hearing on March 14, 1972.

When the first case was called the Clerk of Court brought to our attention that a submission had been filed by the Solicitor General, counsel for appellee, praying this Court to remand the case for a new trial because of what he considered certain irregularities adversely affecting appellant’s legal rights. Since appellant’s counsel, counsellor J. Dossen Richards, interposed no objections, the matter was suspended and the ruling was reversed.

The second of these two cases was then called, and again the Clerk of Court informed us that a submission had been filed by appellee’s counsel praying this Court to abate. further proceedings and discharge appellant without day. The record shows that counsellor Harper S. Bailey was representing appellant but he did not appear at the call of the case. Here again, because no objections were interposed, the matter was suspended and the ruling reversed.

Ordinarily, there would be nothing left for us to do but grant the prayer of appellee’s counsel in the two cases; but since we considered the applications coming from appellee’s counsel, not without precedent, we must admit, as somewhat peculiar considering all the time and expense entailed in the prosecution of these cases by the State, as well as the inconvenience and expense to the defendants, we decided to go through the records of the trials of these cases to convince ourselves of the actual facts and circumstances leading to the submissions made by appellee’s counsel. In doing so we, too, are not without precedent, for as far back as 1878, in Johnson v. Republic, LLR 91, this Court, upon refusal to defend the cause by defendants-in-error’s counsel, decided before passing on said abandonment by the Republic to examine the record in the case.

Again, as recently as the October 1971 Term of this Court, when the prosecution prayed for a remand in Nurse v. Republic, 20 LLR 159 (1971), because the prosecution believed the bill of exceptions had not been approved by the trial judge, the Court did not offhandedly grant the prosecution’s prayer but felt compelled to search the record and the applicable law in determining the application. In denying the application of the appellee, Mr. Justice Simpson, speaking for the Supreme Court, said, inter alia:

“The Court was generally puzzled by this rare submission but felt that if the application was well founded in law it would be granted. We thereupon made an exhaustive search of the statutes extant with a view to finding legal support for the proposition put forth by the appellee. Unfortunately, we have been unable to come across any existing statute or decision of this Court in support of this proposition.”

Although the facts and circumstances in that case and those in the cases now under consideration are not exactly analogous, the important point to be emphasized is that the Supreme Court has always been concerned with applications coming from the prosecution negating its position in the trial court.

In the first case, in his application for remand the Solicitor General alleged, in substance, that the verdict had been improperly returned, because a juror had been coerced into signing the verdict of guilty to the charge of assault and battery with intent to kill and the trial judge had intimidated the jury into changing its verdict, contrary to law. He also alleged the verdict was opposed to the weight of the evidence for failure to subpoena an important witness.

As to the irregularity of the jury’s verdict, the following extract of the record is applicable.

“At this stage case resumes. Parties present, announcement of representation as of record confirmed.

“The Court: The clerk is ordered to inquire of the jurors if they have arrived at a verdict and they answered yes, and returned a verdict of ‘guilty’ against the defendant in this case.

“The prosecution respectfully thanks the jury for its verdict and that the court will have same filed and recorded to form a cogent part of the records in this case, and that the jury be discharged from further answering on said panel without day, and submits.

“Defense excepts to the verdict of the jury and gives notice they will file a motion for a new trial in keeping with statutes in such cases made and provided, and submits.

‘ ‘The Court : The clerk is ordered to issue a commitment against the jury for incarceration. After the jury returned from their room of deliberation and had been charged not to bring in a verdict of guilty of assault and battery with intent to kill, which instructions of the court they disobeyed, and juror James G. Harris, having informed the court that he, being a new juror, was coerced into signing a verdict for assault and battery with intent to kill. Pending a summary investigation tomorrow morning, at the hour of ten o’clock, of the conduct of the jury, they are hereby committed to prison for ‘contempt of court.’ The clerk is hereby ordered to issue the commitment. And so ordered.

“The prosecution, representing the Republic of Liberia, being the County Attorney for Maryland County, excepts to the order of the court to have the jury incarcerated or held in custody until tomorrow morning, for the order is irregular, the jurors being sole judges of the facts ; we shall take advantage of the statute in such cases made and provided, and represent same officially to the Attorney General of Liberia, representing the Republic of Liberia, and submits.

“The Court: The court after inquiring of the jury before their discharge, they, in open court stated that they wrote a wrong verdict of ‘guilty’ with intent to kill, but intended ‘assault and battery with intent to do grievous bodily harm.’ Before the jury is discharged, they may orally or otherwise state what they intend as their verdict and the court will have the same recorded. More than this, in Republic of Liberia v. Samuel Gibson, the Supreme Court of Liberia has laid down a rule that after the jury leaves its room of deliberation it may still change its mind as to its verdict. Predicated upon the strength thereof, the verdict of guilty of assault and battery with intent to do grievous bodily harm as unanimously agreed upon by the jury, is hereby ordered recorded, and the jury is hereby discharged.

“The prosecution excepts. The defense takes serious exceptions and will take advantage of the statutes in such cases provided. Trial suspended.”    

With respect to the Supreme Court’s position in Republic v. Gibson relied upon by the trial judge for his unusual ruling in the instant case, we must here remark that we are in complete agreement with this Court’s position in that case. What the learned trial judge and counsel for appellants seem to have forgotten is that this Court has spoken on the judge’s role in the amendment of a verdict in Appleton v. Republic, 11 LLR 284, 286 (1952) : ‘ ‘It is our opinion that, if the verdict of the jury did not conform to evidence with respect to the amount embezzled, the trial court should have either disbanded the jury and ordered a new trial or given additional instructions and directed further deliberation. To have directed the amendment of the verdict in open court in a matter of substance finds no support in law.” (Emphasis supplied.)

When the error referred to above, as well as other errors apparent on the face of the record, are taken into consideration, we wonder why appellee, instead of appellant, undertook to move this Court to remand the case, and why the appellee did so after appellant had perfected his appeal, or why both appellant and appellee did not stipulate for remand ?

Let us now take up the second case. For clarity’s sake we have set forth the gist of the prosecution’s application.  “The prosecution failed to prove the essential averments alleged in the indictment. According to the Penal Law, 1956 Code 27 :363, the appellant is not guilty of the crime alleged in said indictment because of the following reasons :

(a) From the evidence adduced at the trial, the appellant, Rebecca Gbargba, could not have committed sodomy upon herself inasmuch as her husband, against whom she alleged to have committed the crime upon her body, had been acquitted. Therefore, her conviction was illegal and not in accordance with law.

‘ (b) According to the evidence adduced during the trial, the prosecution failed to prove that the appellant, Mrs. Rebecca Gbargba, committed sodomy in the mouth or the anus of her husband as charged in the indictment.

‘ ‘Wherefore, upon failure of the prosecution to prove the crime sodomy as charged, the appellee respectfully prays this Court to abate further prosecution and discharge appellant without day.”

A reading of the record clearly reveals that the appellee would have found it difficult to defend the State’s position before this Court. From the indictment straight through the trial, the role of the prosecution was childish and inept. Here is a woman who accused her husband of sodomy, but at the separate trials, and how the trials were separated the record does not show, the man against whom the accusation of sodomy was made was acquitted and the woman who made the accusation was convicted.

We say unequivocally that it is right for the prosecution to abandon prosecution of a case when the facts do not support the charge, for as held in In re Cassell, 14 LLR 391 (1961), by Mr. Justice Pierre for the Court, the ethical and primary duty of a prosecutor is not to convict, but to afford the defendant charged with crime a fair and impartial trial. Fairness of trial must comprehend justness of the laws under which defendant answers ; and the justness of those laws must be measured against defendant’s rights under the Constitution. Our concern is the inconvenience, embarrassment, and restraint of a defendant at the cost of his liberty and finances who has been wrongly charged, from the time of his arrest to final determination of the case, when it is obvious that the charge had no merits from its incipiency. Clearly, this is a situation that requires deep and careful consideration by the law-enforcement agencies of the State.

After careful consideration of these cases, we feel the same as the Supreme Court felt in 1878 in Johnson v. Republic above referred to, that as the Attorney General had prayed for remand in one case and discharge in the other, “it being neither the duty nor the desire of the Court to assume the position of prosecution,” we are left with no alternative but to grant the relief prayed for in the submissions of appellee’s counsel, that is to say, Oruma v. Republic is hereby remanded for a new trial and in Gbargba v. Republic, appellant is hereby ordered discharged without day. The Clerk of this Court is hereby commanded to send mandates to the respective trial courts to the effect of this opinion.

Case 1. Reversed and remanded.

Case 2. Reversed, defendant discharged   without day.