FREETOWN SARBO, Appellant, v. REPUBLIC OF LIBERIA, Appellee.

APPEAL FROM THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, MARYLAND COUNTY. Argued November 27, 1972. Decided February 2, 1973. 1. On cross-examination a witness may be asked about his motives, interest, and prejudices in the proceedings and the sources of his knowledge of the facts testified to by him. 2. It is reversible error in a criminal case if the lower court refuses to sequester a jury after request by defendant’s counsel. 3. It is reversible error for a court in a criminal case to deny the constitutional guarantee for compulsory process to the defendant to compel the appearance of a witness in his behalf. 4. When the Supreme Court determines as a matter of law from the record on appeal that the verdict of guilty returned by the jury was unsupported by the evidence presented by the prosecution, the judgment will be reversed and the appellant discharged without day. The appellant and another defendant were charged in an indictment with committing murder by various acts of mutilation upon the body of the victim. The appellant was separately tried and convicted by a jury as charged in the indictment. He moved for a new trial alleging errors and an insufficiency of evidence to support the jury’s verdict as a matter of law, which was denied. An appeal was taken from the judgment of the court. The Supreme Court held that errors had been committed by the trial court, but primarily on the findings of insufficiency of evidence to support the jury’s verdict, it reversed the judgment and discharged the appellant without day. J. Dossen Richards for appellant. Barnes for appellee. Solicitor General MR. JUSTICE WARDSWORTH delivered the opinion of the Court. 481 482 LIBERIAN LAW REPORTS The appellant, co-defendant in the court below, was charged with murder. Having been granted a severance on application his co-defendant, James Doe, was tried in the June 1970 Term of the Fourth Judicial Circuit Court, Maryland County. Appellant was subsequently tried and convicted of murder on January 19, 1971, in the aforesaid Fourth Judicial Circuit Court. The indictment upon which appellant was tried and convicted is herewith set forth: “Because James Doe and Freetown Sarbo . . . between the period of April through July 1969, the exact day, date and month being to the grand jurors unknown, being employed at the rubber farm of the late Rev. Dr. F. A. Price, in the settlement of Bonoke, Pleebo District, Maryland County, Republic of Liberia, did then and there commit a capital offense : murder in and upon the body of Oldman Sam, decedent, an employee and/or tapper, with malice aforethought, premeditation and deliberation, by mutilating and extracting certain parts from the body of decedent, the skin from the right side of the face; the fifth finger from the left hand ; a piece of flesh from the left elbow; a piece of flesh from the rear of the forehead and the left breast; and thereafter, with intent, the defendant unlawfully and brutally killed Oldman Sam and threw the body into a creek called Kayawin, where said body was discovered ; this the said defendants also voluntarily confessed and admitted, after being advised by the Board of Investigators that they were not compelled to make any statement, for if they did, it would be used as evidence against them; but rather elected so to do ; thereby committing the crime `murder,’ which wicked act of the defendants is contrary to the statute Laws of Liberia, in such cases made and provided against the peace and dignity of the State.” In the first place, according to the indictment, the sev- LIBERIAN LAW REPORTS 483 eral parts enumerated as having been allegedly extracted from the body of the decedent strongly suggest that the act of extracting said parts was executed before the alleged killing or murder of the decedent was effectuated. This allegation constitutes a cogent part of the corpus delicti and should have been proved at the trial as contained in the indictment beyond all reasonable doubt. The second matter, with respect to the indictment, is the allegation that after the murder of Oldman Sam was effected the defendant threw the body of the decedent into a creek called Kayawin. We strongly feel that this allegation also constitutes a cogent part of the corpus delicti and as such the prosecution was bound, under the law, to prove it conclusively. We come next to the allegation thal certain parts of decedent’s body were extracted, which suggests that some instruments or deadly weapons were used in extracting the alleged missing parts. The indictment in this case does not indicate that any instrument whatsoever was used or employed in the implementation of defendant’s alleged atrocious design. The failure to have averred that a weapon or instrument was used by the defendant to perform the act of extracting the various parts of decedent’s body, as well as proving it beyond a reasonable doubt, is a serious legal error. These omissions or legal defects are observed on the face of the indictment, the basis of this action. We shall now refer to appellant’s bill of exceptions which contains three counts. We deem counts one and two of the bill worthy of consideration. “I. Defendant contends that Your Honor erred when you did not permit the State witness, Harrison Nyeswah, to answer the following question on the cross-examination when he was asked : `. . . is it not true that although you have said upon the record that you are the commander of Pudukeh Barracks where you were keeping Myer Tickley, you allow him to go away, not so?’ To this question the State objected on 484 LIBERIAN LAW REPORTS the ground of immateriality and traveling beyond the res gestae of the indictment which Your Honor sustained. . . . “2. And also because defendant contends that Your Honor erred to deny him the right of retrial when his motion containing the essential highlights of this trial was presented and argued.” In Bryant v. Bryant, [1935] LRSC 15; 4 LLR 328 (1935), this Court held that a cross-examiner is entitled as a matter of right to test the interest, motives, inclinations, and prejudices of a witness, his means of obtaining knowledge of the facts to which he bears testimony, and the manner in which he has used those means. This question propounded to the witness on crossexamination we regard as being very pertinent, and it was error on the part of the trial judge to have sustained prosecution’s objection. Therefore, count one of appellant’s bill of exceptions is hereby sustained. In checking through the record in this case we find where prosecution witness S. A. D. Thompson, Jr., testified in answer to a question by appellant’s counsel on cross-examination: “Q. Tell whether you know anything else touching the murder of Oldman Sam besides what was told you according to you by James Doe and Freetown Sarbo the defendant, now on trial? “A. Nothing else.” Having carefully read through the evidence, we find that the jury returned a verdict of guilty against the accused whose counsel tendered a motion praying the trial judge to award appellant a new trial, on the grounds: (I) that the verdict was manifestly against the law; (2) because the jurors were not sequestered as requested by the defendant; (3) because the sheriff failed to produce as a witness Myer Tickley, who was living on the farm of Dr. Price along with other witnesses. The motion was denied by the court, and on January 29, 1971, sen- LIBERIAN LAW REPORTS 485 tence was pronounced against the defendant. It is our firm conviction that there was a palpable misapplication of the law by the trial court. It was reversible error for the court to have failed to sequester the jury after having been requested to do so by the defendant. “All the regular jurors comprising a jury shall be kept together from the time it is sworn or affirmed until it renders a verdict and is discharged.” L. 1963-64, ch. III, Civil Procedure Law, � 2208. It was also error not to have compelled the State to produce defendant’s prospective witness, Myer Tickley, especially since he had been arrested along with the accused and was detained as one of the perpetrators of the crime. According to the record taken at the trial, not only did the prosecution fail to produce this witness asked for by the defendant, but for some reason unknown this said witness completely disappeared from custody. The Constitution guarantees compulsory process for compelling attendance of the defendant’s witnesses, Article I, Section 7th. Whenever a defendant in a criminal case cannot enjoy this guarantee, he is entitled to an acquittal. Having examined the evidence in this case for its sufficiency, we fail to see how the jury could have arrived at the conclusion of the guilt of the defendant. In similar circumstances as those obtaining in the instant case this Court, some sixty-nine years ago, dealt with the problem of insufficient evidence to convict in a case of homicide. “It is a well settled principle in criminal law that `every one is presumed to be innocent until the contrary is proven.’ It is also an established rule, that the onus probandi, or burden of proof, rests upon him who maintains the affirmative. . . . And, says Mr. Archbold, where the plea of the defendant is ‘not guilty,’ the prosecution must prove the defendant guilty of the charge before the latter can be called upon for his defense. ( I Arch. Crim. Pleadings, 486 LIBERIAN LAW REPORTS p. 359.) And the prosecution must prove it beyond a rational doubt. .. . “In the case under consideration we find that the cause of death was not made out by the prosecution, at the trial, with that degree of certainty that the law requires, and this, we would observe, was material to lay a foundation of guilt. . . . There is no evidence to prove that prisoners actually inflicted the injuries upon the deceased to constitute the body of the crime, as laid in the indictment.” Dunn v. Republic, i LLR 401, 405 (1903). Having examined the evidence and carefully considered the law bearing on this case, the Court holds that the trial court erred in sustaining the verdict of the jury, and this Court further holds that the judgment rendered by the trial court is founded upon a verdict unsupported by the evidence in the case. In view of the foregoing, the final judgment in this case is hereby reversed and appellant discharged without day. It is so ordered. Reversed; appellant discharged.