SEAH SACKOR, Appellant, v. REPUBLIC OF LIBERIA, Appellee.

APPEAL FROM THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, MARYLAND COUNTY. Argued November 28, 1972. Decided February 1, 1973. The Supreme Court will not consider any allegation which is not supported by the certified trial record presented to it on appeal. 2. Comment by a trial judge in his charge to the jury, which refer to admissions of homicide made by defendant during his testimony in a murder trial, is reversible error when the trial record fails to indicate that defendant had given any testimony. 3. The constitutional guarantee to an accused of a “public and impartial trial by a jury of the vicinity,” must be reflected by an impartial public trial before a jury composed of persons drawn from a neighborhood. 4. The Supreme Court will reverse the judgment in, and remand for a new trial, any case that comes before it in which the judge’s acts and rulings were patently prejudicial to the accused’s rights and interests. 1. The appellant was convicted of murder after trial, and an appeal was taken from the judgment of the court, based primarily on an aspect of the judge’s charge to the jury. In commenting on the evidence, the judge referred to an admission, made by defendant while testifying, which was not supported by the trial record. The Supreme Court held that reversible error had been committed. Judgment reversed, case remanded. J. Dossen Richards for appellant. The Solicitor General for appellee. MR. CHIEF JUSTICE PIERRE delivered the opinion of the Court. Lawyers have a moral obligation and an ethical duty to those clients whom they accept to represent in litigation before the courts. It is immoral and unethical to exemplify irresponsibility and unconcern for the rights of the 394 LIBERIAN LAW REPORTS 395 parties they represent, and under such circumstances negligence and incompetence are not excusable. Lawyers who represent the State are no less culpable for incompetence and unconcern in matters affecting their client’s interest. It is the very best interest of society that prosecuting officers of the State exemplify, in addition to competence, a dedication and devotion to duty which will assure society’s protection from crime, by their scientific handling of criminal cases. For unless criminals know that their criminal acts will be competently and effectively prosecuted, the crime rate will rise and society will thereby be endangered. Here is a murder case in which one human life is alleged to have been taken, and another is liable to be forfeited. Yet, the manner in which the legal and factual issues involved were handled by counsel in the trial court is reprehensible, to say the least. A lawyer’s duty to his client in a criminal case is not to acquit or convict, but to see that the defendant gets a fair and impartial trial. Code of Moral and Professional Ethics; Rule 4. Unless and until both sides in a criminal trial can be said to have accomplished this, there is no fair trial. It is a waste of the Court’s time for counsel to come before us with unprepared cases, and with briefs which do not traverse the issues appearing in the records of the cases. Added to this unpreparedness and apparent incompetence is the insolent behavior of some lawyers, who seem to resent the Court questioning the incompetence shown in the preparation of their cases. Rule i of the Code of Moral and Professional Ethics states very clearly that, “It is the duty of every lawyer to maintain towards the courts a respectful attitude, not only toward the judge temporarily presiding, but for the purpose of maintaining the supreme importance of his judicial office.” In the future we will discipline lawyers appearing before the Supreme Court who display disrespect. If you resent the Court, then do not appear before it. , 396 LIBERIAN LAW REPORTS We find ourselves compelled to remand this case for a new trial, in order to be fair to the appellant who stands in jeopardy of his life. Here are the circumstances which we face according to the record certified to us from the trial court. The indictment charges that sometime between April 15 and May is, 1971, the defendant with premeditation and deliberation shot and killed Esther Nayou in Grandcess, Maryland County. He was arrested, tried and convicted of first degree murder. He appealed from the judgment, and has brought the case to this Court for review. The bill of exceptions, which is the complaint against irregularity and illegality in the trial, contains only two counts. “1. Defendant says that when the impanelled jury returned their iniquitous verdict to which he excepted and filed this motion for new trial, Your Honor erred in denying the motion in face of its soundness; to which ruling defendant then and there excepted on sheet three of September 9, 1971, minutes of court. “2. And also because defendant alleges that although the verdict of the impanelled jury was against the evidence adduced at the trial which tended to prove manslaughter, Your Honor confirmed and affirmed the said erroneous and iniquitous verdict thereby rendering final judgment thereon, condemning defendant to death by hanging by the neck; to which final judgment defendant then and there excepted on sheet four of September 9, 1971, and gave notice of appeal to the Supreme Court of Liberia, sitting in its March 1972 Term, for the review of this cause. ), According to the record, trial of this case commenced on August 13, 1971, a Friday, which was the fifth day’s session of the August Term of the Fourth Judicial Circuit, with Judge McDonald Krakue presiding. Hearing LIBERIAN LAW REPORTS 397 of the case continued on the sixth, ninth, and tenth day’s session of the court in the aforesaid Term. The record does not show that the trial was conducted on the seventh and eighth day’s session of the court. The record does show, however, that on the ninth day of the session the prosecution’s last witness testified and was discharged. There is no indication that the State ever rested its side of the case, or that the defense was called upon to present its case. Yet, the record shows that at the tenth day’s session argument on both sides was heard, and the jury was charged, deliberated, and returned their verdict against the defendant. This is the record that has been certified to us. From all indication, and especially from part of the text of the charge of the judge to the jury, there is an hiatus in the record. Significantly missing is an announcement of the resting of either side of the case, before arguments were entertained. Yet, the State’s last witness testified on the ninth day of the Term, and the verdict was returned on the tenth day. So that even if the defendant did testify, or have others testify for him, and if the State did rest its side of the case before the defendant began his testimony, these normal procedures in a criminal trial must have been very perfunctorily done, within the period between the discharge of the State’s last witness from the stand on the ninth day, and arguments on both sides and the verdict on the tenth day. But as I have said earlier, this is the record that has been certified to us, and these important procedural developments are not recorded therein. When the case was reached on our docket, it was discovered that the appellant was without counsel, so the Court appointed counsellor J. Dossen Richards to represent him. Counsel requested, and time was allowed for him to prepare a brief, and argument commenced on November 28, 1972. Among the many issues raised and argued by the appellant’s counsel, was the fact that although 398 LIBERIAN LAW REPORTS the record does not show that the defendant ever took the stand to testify in his own behalf, yet the trial judge in his charge to the jury commented on defendant’s testimony. “This is in brief the summary of the evidence adduced at the trial (by) the State. Now we shall endeavor to give you in brief the testimony of the defendant himself. In testifying in his own behalf on the stand, defendant told you that he did shoot decedent, because when he first saw the object, he recognized same to be ‘a meat’ and because of ‘the turning of his eyes,’ he shot decedent.” Appellant’s counsel contended, and we are in perfect agreement with him, that this part of the judge’s charge was not justified by the record and was, therefore, prejudicial error, since it influenced the jury’s verdict against defendant. If, indeed, the defendant did testify at the trial we cannot assume that this is so in the absence of a record to that effect, since the Supreme Court only proceeds upon the certified record of the trial. But if the defendant did not testify, as the record seems to show, then it was reversible error for the judge to have told the jury that the defendant had admitted the killing. What is strange about the record sent up is that the lawyers who conducted the trial of this case in the court below took no steps to correct this prejudicial error in the judge’s charge. It occurs to us that diligent defense counsel should have included in his bill of exceptions this prejudicial error of the judge against his client’s interest. We also feel that the State’s Attorney is equally culpable for not having indicated this gross difference between the record and the judge’s charge. As arms of the court both lawyers were responsible for seeing that the record of the trial represented what actually took place in court. Since the judge dictated this charge to the record, one also wonders how the minutes for the tenth day’s sitting were cor- LIBERIAN LAW REPORTS 399 rected, when the court met in the eleventh day’s session. This Court will reverse the judgment in, and remand for a new trial, any case in which the trial judge’s acts and rulings are shown to be patently prejudicial to a party’s rights and interests. In Quai v. Republic, 12 LLR 402, 403 (1957), this Court, speaking through Mr. Justice Shannon, said the same thing in similar circumstances. “We have not been convinced by the records that the appellant had such a fair and impartial trial as to warrant our sustaining his conviction and sentence to death. His defense was carelessly conducted by the attorney assigned by the trial court.” � The case was, therefore, remanded. We feel that the same situation obtains in this case, that this case has been most loosely and carelessly handled by the lawyers on both sides in the court below. As we look back upon and review the rights to which an accused is entitled under the Constitution of Liberia, special attention must be given to Article I, Section 7th, which provides for a “public and impartial trial by a jury of the vicinity.” These are not meaningless words to be brushed aside, or applied to suit the changing vagaries of different interpretations. There are three important rights guaranteed to every accused under this requirement of the Constitution: ( ) a public trial ; (2) an impartial trial; and (3) a trial by a jury of the vicinity. Upon each of these three constitutional provisions rests certain vital rights of the accused. This requirement forbids that a criminal trial be held in secret, lest the rights of the accused be trampled upon behind closed doors. It commands that every criminal trial shall be impartial, and we shall say more about this later. This requirement also allows for trial by a jury of the vicinity. In other words, a select group of men and/or women of the neighborhood, or locality, or county. Our Constitution and the rights guaranteed under it in 400 LIBERIAN LAW REPORTS criminal trials, are highly flavored and influenced by rights guaranteed to Englishmen in Magna Charta. From so far in the past have some of the provisions of our Constitution come down to us by way of the American Constitution, on which ours was based. In chapter 14 of Magna Charta under Amercements, it is provided that no fines will be imposed “except by the oaths of honest and lawful men of the neighbourhood,” as jurors were referred to then. As can be seen, the idea of trial by a jury of the vicinity has come a long way from the past into our Constitution. The wisdom of such a requirement is obvious, for a neighbor, or a citizen of the same locality or county in which the crime was committed, is less likely to condemn the accused if the chain of evidence was not strong enough to bind hiin with certainty to the commission of the crime. For, how could they be unfair to a neighbor? As compared to a stranger, a neighbor or citizen of the same locality or county would be more inclined to give the accused the benefit of doubts arising in the evidence. Thus has the Constitution safeguarded the rights of an accused in a criminal trial. But let us examine what is an impartial trial, that constitutional requirement also provided to safeguard the rights of the accused. In order that it might be said that a trial has been impartial, there are certain requirements which must have been met. An impartial trial contemplates that the burden imposed upon the State to convict the accused of the crime charged by the testimony of witnesses is never removed or diminished. And it makes no difference whether or not the accused confesses to the crime. It is all the more the prosecution’s responsibility to only convict by evidence which is cogent and convincing when the accused enters a plea of “not guilty,” as in this case. With the foregoing in mind, how can it be said the trial was impartial, when the judge told the jury in his charge to it LIBERIAN LAW REPORTS 401 that the defendant had admitted the killing, when there is no evidence of such admission in the record of the trial? In other words, the judge seems to have manufactured a fact to the prejudice of the defendant, and then instructed the jury to consider it in its deliberation. Measuring such conduct by the judge by the yardstick of this provision of the Constitution, the defendant cannot be said to have had an impartial trial according to the spirit and intent of the organic law. The acts of officers of court should not prejudice the rights of parties, and when they do the appellate court will reverse the adverse judgment. In view of the circumstances appearing in the record of this case, and because of the position we now take by remanding it for a new trial, we will not go into any other phase of the matter. The judgment of the trial court is, therefore, reversed and the case is remanded for a new trial. It is so ordered. Reversed and remanded.