A. J. E. SAWYERR, Appellant, v. REPUBLIC OF LIBERIA, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, MONTSERRADO COUNTY.

Argued April 5-7, 11-13, 17, 18. Decided May 4, 1944.

1. Where a defendant in a criminal case involving a felony swears that he fears that because of local prejudice he will be unable to obtain justice, our statute makes it mandatory that a change of venue be granted.

2. Therefore, it was error for the trial judge to undertake an investigation before ruling on the motion for change of venue.

3. The testimony of an accomplice against the accused has no value unless it is corroborated.

4. Guilt of the accused must be proved beyond a reasonable doubt.

On appeal from conviction of embezzlement, judgment reversed.

H. Lafayette Harmon for appellant. J. D. B. Cooper, Solicitor General, for appellee.

MR. JUSTICE SHANNON delivered the opinion of the Court.

An indictment was found by a grand jury of Montserrado County before the Circuit Court for the First Judicial Circuit, Montserrado County, against A. J. E. Sawyerr, D. Colston Nelson, and Robert I. E. Bright as principals and against Magnus A. Jones and D. L. D. McCauley as accessories before and after the fact on the charge of embezzlement.

As the certified records of the trial court before us show, several motions for severance of the parties in trial were made and granted; and, the prosecution having entered a nolle prosequi in favor of D. Colston Nelson, one of the principals, who afterward became a state witness, the respective trials under the severances granted were had, resulted in the acquittal of Robert I. E. Bright, principal, and Magnus A. Jones and D. L. D. McCauley, accessories before and after the fact, and in the conviction of A. J. E. Sawyerr only.

The facts culled from the records upon which the prosecution was based are substantially as follows :

At the time of the alleged commission of the embezzlement as charged, A. J. E. Sawyerr was Comptroller of the Treasury; D. Colston Nelson, chief clerk of the Treasury Department; Robert I. E. Bright, typist and departmental clerk of the Treasury Department; and Magnus A. Jones and D. L. D. McCauley, clerks in the Bank of Monrovia, Inc., the depositary of the Liberian Government.

Because it was necessary for the Honorable Gabriel L. Dennis, then Secretary of the Treasury, to travel to foreign parts, he executed the following memorandum dated November 5, 1938 and approved by His Excellency the President, with directions as to how the central office of the Treasury Department was to be managed and controlled during his absence :

“During the absence and pending the return of Mr. Gabriel L. Dennis, Secretary of the Treasury, the Comptroller of the Treasury, Mr. A. J. E. Sawyerr, will sign all documents such as Requisitions, Service vouchers, Warrant checks, and other Departmental matters Tor the Secretary of the Treasury, R.L.’ The Administration of the office will be supervised by the Comptroller of the Treasury and the Chief Departmental Clerk, under the direction of His Excellency the President.

“Mr. N. P. Speare, accountant of the Bureau of Accounts, will sign all documents generally signed by the Accounting Bureau Tor the Comptroller of the Treasury, R. L. ‘ The Bureau of Accounts will be supervised by the Auditor and the Assistant Liberian Auditor.
“GABRIEL L. DENNIS
Secretary of the Treasury.

“Approved: EDWIN BARCLAY
President of Liberia.”

From the above memorandum issued by the Secretary of the Treasury and approved by His Excellency the President, it is obvious that the supervision of the administrative work of the Treasury was left jointly with the Comptroller of the Treasury and the chief departmental clerk under the direction of the President. Therefore any effort to have it appear that A. J. E. Sawyerr, the then Comptroller of the Treasury was as such solely responsible for the administrative work of the office should be largely discouraged in the conduct of, and discounted in the decision of, this case.

Not long after the departure of Secretary Dennis, the following Treasury Circular, Number 4-1939, dated February 6, 1939, and signed by A. J. E. Sawyerr, “For the Secretary of the Treasury, R.L.,” was issued:

“TO ALL MERCHANTS IN LIBERIA
Subject: .10% (ten percentum) Royalty on Raw Gold.
“Further to Treasury Circular No. 3 of 31st January 1939 this is to advise that in keeping with the Mining Act of the Republic of Liberia, a Royalty of ten percentum (10%) on the value of all Raw Gold extracted from the soil is to be paid [the] Government. Prospectors are in the habit of evading this particular provision of the Act by making direct sales of their product without reference to [the] Government.

“With a view to ensure the proper enforcement of the above mentioned provision, your cooperation is solicited, and to that end you are hereby authorized to deduct ten percentum (10%) on the value of all Raw Gold presented to you for purchase.

“A monthly statement showing quantity of Raw Gold purchased, its value, name of vendors and amounts collected as Royalty, should be transmitted to this Office; merchants residing outside of the County of Montserrado should make deposit of said amount at the Office of the Collector of Internal Revenue of their respective County, and a copy of the receipt obtained therefrom forwarded to this office along with their report.

“Any merchant failing to adhere strictly to the terms of this Circular shall be liable for the payment of the amount due as Royalty, and denied the privilege of exportation.”

Following the directions contained in this Treasury Circular Number 4, it appears that the payment of royalties on raw gold was locally centralized in the Treasury and that the greater portion of the payments was by personal checks drawn on the Bank of Monrovia, Inc. The records also show that, according to usage and custom, when checks were thus drawn in favor of the Secretary of the Treasury on account of government revenue they were not endorsed for cashing by the Treasury but rather the endorsement was made by a transfer of said checks to the Bureau of Revenues in the following manner: “Pay to the Supervisor of Revenues” or sometimes “Pay to the Cashier of Internal Revenues,” which’ said bureau also in turn made an endorsement directing the deposit of the funds accruing from said checks to the credit of the Government.

It appearing, after a lapse of time, that the revenues accruing from royalties on raw gold were not being properly accounted for, and same having been brought to the notice of the Secretary of the Treasury, Gabriel L. Dennis, who had then returned to Liberia, said Secretary referred the investigation of the situation to one Deaver P. Young, a chartered accountant, at the time, in the employ of the Liberian Government. It is the report of this chartered accountant, perhaps together with other related facts, that was handed to the Department of Justice and upon which the indictment was found.

Before joinder of issue at the August term, 1942 of the said circuit court, there were four motions filed by the defendant, now appellant, for the trial court’s consideration: motion for a change of venue; motion to quash the indictment; motion to refuse jurisdiction ; and motion for continuance. The respective rulings of the trial judge on the last three named are so sound in law that they are hereby sustained.

With reference to the proceedings had and the ruling entered on the motion for a change of venue, the Court is divided in its opinion. This diversity of opinion is simply founded upon the individual opinion of each Justice as to how the statute of this Republic relating to change of venue in criminal cases is to be construed, whether mandatorily or permissively. It is a settled principle of law that, where a statute controlling change of venue is mandatory, the court is without right to exercise discretion in granting or denying the motion, but where the statute is permissive, then discretion may be exercised. In this connection we quote the following:

“Whether the granting of a change of venue upon application duly and properly made is imperative or is within the discretion of the court depends upon the provisions of the statutes, some of which are in terms mandatory, and others, although in terms permissive, are construed as being mandatory, while others are clearly intended to be permissive, placing the matter within the discretion of the court, and it is to be observed that this difference sometimes exists under the different provisions of the statutes in the same jurisdiction. While in a few cases it has been stated generally without reference to the ground upon which the application was based that the granting of the application is discretionary, or imperative, the question so frequently turns upon the particular ground upon which the application is based that it has been treated specifically in that connection.” 40 Cyc. of Law & Proc. Venue 117 (1912) .

“Local prejudice of such a character as to prevent a fair and impartial trial in the county or district where the action is brought is a well-recognized ground for a change of venue, and under some statutes upon the filing of a proper application or affidavit to this effect the court has no discretion to refuse the change; but otherwise the matter is within the discretion of the court which will not be interfered with unless manifestly abused. . . .” Id. at 134.

Again,

“The character of a party’s right to a change of venue, whether absolute on proper petition being made, or dependent on a showing to the satisfaction of the judge holding court of the existence of certain conditions, rests of course primarily upon the wording of the statute conferring the right and, as the wording employed differs but little in many cases, upon the view taken by particular courts of the meaning of that verbiage. . . .” 27 R.C.L. Venue § 34, at 814 (1920).

Our statute on the change of venue in criminal cases above the degree of misdemeanor is as follows :

“That from and immediately after the passage of this Joint Resolution, it shall be lawful for any person, or persons indicted by the Grand Jury for offences above the crime of Misdemeanor to change the venue to any Court in any County of the Republic of Liberia, having competent jurisdiction. Provided the change is made to the nearest County.

“It is further resolved that the venue changed shall be governed upon this principle. The individual indicted shall appear before the Court in which he stands indicted and make an oath showing that on account of existing local prejudices, he or she believes or fears that they will not be able to obtain justice. The venue changed, shall be to the nearest County.” L. 1902—03,32 ( 1st) §§ I, 2.

It is the opinion of the majority of the Court that this statute is clearly mandatory. Consequently, the trial judge erred in exercising discretion by holding an extensive investigation before ruling on the said motion, a right that he could only have taken advantage of had the language of the said statute been permissive.

It may be here observed that there is obviously a reason for the Legislature to have made this particular statute mandatory in addition to what might have already been the country’s experience in the handling of citizens’ rights, especially in cases where their life and liberty are involved. It may be that the Legislature took into consideration the paucity of the population in each county where, in face of existing local prejudice, the exercise of the right of challenges might give the person indicted little, if any, benefit, particularly where because of said paucity everybody will hear and know what is happening. It is obvious that a great mischief was worked when the jurors who would be the judges of the facts in the case were present in court when and where the defendant’s motion for a change of venue, because of existing local prejudice, was being debated and evidence pro et con thereon received.

Mr. Chief Justice Grimes, disagreeing with our conclusions on the ruling of the trial judge on the motion for a change of venue, dissents, and may file a dissenting opinion showing the grounds of his dissent.

Reviewing the evidence of the prosecution, it is necessary to state that although Gabriel L. Dennis, Deaver P. Young (chartered accountant) , D. C. Nelson, John S. Durland (manager of the Bank of Monrovia, Inc.), D. Van Ee (Agent for the Oost Afrikaansche Compagnie) , Lawrence Gbeyon (bookkeeper of the Bureau of Revenues), Emmanuel E. Jones of Cie F.A.O., and G. Charles Cooper of the Customs, testified, the testimony of many of these persons did not tend to attach any criminal responsibility to the appellant.

Witness Gabriel L. Dennis testified that he was at the time Secretary of the Treasury, confirmed the issuance of, and identified, the memorandum, supra, and explained that it was because appellant was not conversant with the routine work of the Treasury, his work before then having been confined to the Bureau of Accounts, that he left the administrative management of the central office jointly with the appellant, who was Comptroller, and D: Colston Nelson, the chief departmental clerk, under the direction of His Excellency the President. He also testified that upon his return to Liberia, it having been brought to his notice that there was obvious mismanagement of the revenue accruing from royalties on raw gold, he referred the matter to the chartered accountant for his investigation. The said accountant submitted his findings, which were referred to the Department of Justice for appropriate action without, as he admitted, holding an investigation in the department. Witness Dennis testified that he had no other facts in the matter that would tend to incriminate the appellant.

Witness Deaver P. Young, the chartered accountant, testified that the matter with data was submitted to him for his investigation, that he submitted the findings of his investigation to the Secretary of the Treasury, and that at the times he investigated and submitted his findings he did not envisage that said findings would be made the basis of a criminal prosecution. He further testified that, in making the allocations of responsibility for the sundry amounts allegedly unaccounted for between the appellant and D. Colston Nelson, he did it upon the strength of the data then before him, and in the following manner : amounts of checks which were endorsed by appellant without the appended signature of D. C. Nelson were charged against said appellant; amounts of checks which were endorsed by D. Colston Nelson without the accompanying endorsement signature of the appellant and amounts on receipts issued by D. C. Nelson without appellant’s signature were charged against the said D. C. Nelson; and on checks on which the signatures of both appellant and D. C. Nelson appeared in endorsement, the respective amounts were equally shared between the two and charged accordingly. He also testified that as such chartered accountant he was not in a position to testify about any facts tending to show the criminal intent of the appellant in the entire transaction.

The testimony of the remainder of the witnesses, barring D. C. Nelson, had no actual tendency to establish the charge of embezzlement against appellant except in some remote way, to show that sundry amounts were paid to the Treasury by checks on account of royalties on raw gold, a greater portion of which amounts, according to the testimony of witness Gbeyon, bookkeeper in the Bureau of Revenues, had not been deposited. Because of this, it is not deemed necessary to review same, especially since the appellant has not denied or refuted their collection and the fact that they were not deposited.

The chief and star witness for the prosecution was D. Colston Nelson who, at the time of the alleged commission of the charged offense, was chief clerk in the Treasury Department, and was left with appellant in joint control of the administrative management of the Treasury under the direction of the President; and who, also, was jointly indicted with appellant but subsequently became a state witness upon the entering of a nolle prosequi in his favor. His testimony is of such a nature that it is an inducement to quote all of it here. However, we quote only a portion :

“In the month of February, 1939 a circular was issued by the Secretary of the Treasury which provided that all merchants purchasing raw gold from prospectors should deduct 10 percentum of the value of such gold and make a record thereof, and at the end of each month a detailed report should be made to the Treasury Department, stating the name of vendor, the quantity of gold sold, the value of the gold, and the amount of royalty which is represented by the 10% deduction. Accompanying such report the total amount collected for the month account royalty was to have been sent to the Treasury Department. This system was previously not in vogue and the reason for issuing such a circular was to check the indiscriminate selling of gold by prospectors, some of whom were not licensed. On the other hand some merchants, instead of paying in the royalty by check, did so in cash. According to the system all such royalty collected either in cash or by check should have been deposited in the Bureau of Revenues. It so happened that when some merchants made payments in cash it was decided by the Comptroller of Treasury, Mr. Sawyerr, then acting for the Secretary of the Treasury, Mr. Robert Bright and myself that if a portion of this amount should be detained rather than deposited it may not be missed because the system of collecting royalty at the time was not universally known. It happened to have been an obscure source of revenue at the time. “Therefore when the next checks were paid in at the Treasury Department Mr. Sawyerr, the defendant, told me to take it to the bank and cash it, after he had endorsed it as Secretary of the Treasury. Previous to that I did not know that a check issued to the Secretary of the Treasury or any government official in his official capacity could [sic] cash such a check. However, I took it there to see if it could [be] cashed. Upon presentation to the cashier no objections were raised and therefore after that several checks were thus cashed upon the strength of the endorsement of defendant Sawyerr as Acting Secretary of the Treasury. Each time I took a check to the bank to have it cashed I was required to affix my signature to it, which I did. When the funds from the check was [sic] taken to the Treasury Department I reported to Mr. Sawyerr, my then Chief, and to Mr. Bright, the typist of the Department, what had been done. After the close of the office at two o’clock and all the employees had left for home, Mr. Bright and myself would remain in the office to divide the amount. When the decision was taken to make use of some of this royalty collection, Mr. Sawyerr, by virtue of being head of the office, wanted the lion’s share or, in other words, the greater part; but to this contention we did not agree and therefore whenever we had any funds in our hands to share, it was done in three equal parts: the first one-third was for Mr. Sawyerr, the second third for Mr. Bright, and the last third for me. Usually Mr. Bright took Mr. Defendant Sawyerr’s share to his home. In these transactions, Mr. Bright always acted for Mr. Sawyerr, the defendant. This affair continued for some [time] until the arrival of Mr. Gabriel L. Dennis, the Secretary of the Treasury, from Europe. When Mr. Dennis came, both Mr. Bright and myself told Mr. Sawyerr, the defendant, that as Acting Secretary of the Treasury he should prepare a sort of memorandum for Mr. Dennis to acquaint him with what had happened as far as the collection of royalty was concerned, because before he left Liberia no royalty whatever was being collected. Mr. Sawyerr then instructed me to prepare the necessary figures showing the amounts collected and deposited to place before Mr. Dennis, the Secretary of the Treasury, when the latter took over. I prepared the papers, handed them to Mr. Bright to take in to Mr. Sawyerr, but learnt afterwards the memorandum was not presented to Mr. Dennis. However, checks from merchants who were collecting royalty all the time from prospectors continued to come in. At this time we were a bit perplexed as to what should be done in the premises. The only way the problem at the time was solved was that defendant Sawyerr should continue to acknowledge receipt of the checks as they came in and endorse them for deposit. It was rather a worry because Mr. Dennis had been in Liberia over a month and he had not been acquainted with the system by which the royalty was being collected. Again and again Mr. Sawyerr, the defendant, was asked by Mr. Bright and myself to acquaint Mr. Dennis with the transaction but nothing was done.”

He continued in this trend and, in the end, told how it was rumored that Kollie S. Tamba, who had been appointed as mining clerk, made the discovery of the misappropriation of the funds accruing from revenue collected as royalties on raw gold and reported it to the official head of the Department; and how also it was rumored that certain employees of the revenue service were said to have been then drafting a memorandum disclosing this misappropriation with a view of getting even with appellant who was said to have unfairly treated one of their tribesmen in the prospecting business.

In the course of his testimony, the said star witness Nelson admitted having been the person who took the checks to the bank to be cashed after they had been duly endorsed by appellant; that checks regularly drawn in favor of the chief clerk of the Treasury Department were usually duly endorsed by him as such chief clerk and cashed in like manner as those bearing the endorsement of appellant; and that he sometimes went to the business house of West & Company and received moneys on account of revenue for royalties on raw gold, issuing receipts therefor under his official signature, as chief clerk of the Treasury. He stressed the point, however, that all these amounts thus received, either directly as cash or after the cashing of sundry checks, were at each time reported to the appellant and to Mr. Bright, and then divided into thirds, appellant, Mr. Bright, and himself each receiving one-third.

This testimony of D. Colston Nelson, as such star witness for the prosecution, is undeniably pertinent, impressive, cogent, and relevant. But, unfortunately, under the law it has no weight unless it is supported by other free testimony since he is an accomplice who has turned state witness. It is necessary, therefore, to discover if there is any corroborating evidence on record to support this testimony.

Since the review of the evidence of the prosecution, supra, does not seem to be corroborative of Nelson’s evidence, we will review the testimony of the defense to see if anything therein can be taken or accepted in corroboration of his said testimony. Before doing this, however, it is proper to here state that the written evidence of the prosecution consisting of checks, letters of acknowledgment of the receipt of money by the Treasury, the stubs of check books, and the account book of the Bureau of Revenues, etc., tends to show some undue appropriation of Government revenue, the royalties on raw gold, and this misappropriation the prosecution has tried to saddle the appellant with; but how far it has succeeded will be determined after the review of the evidence of the defense.

Appellant, in support of his plea of not guilty, testified and also produced sundry other witnesses who testified in his behalf; but we propose to deal with his testimony and that of witnesses Robert I. E. Bright, Magnus Jones, and D. L. D. McCauley. The evidence of the appellant commences with showing the manner in which he was appointed to sign “for the Secretary of the Treasury” during the latter’s absence from Liberia, how he was left in control of the Treasury jointly with the chief clerk of the Department, D. Colston Nelson, and that the reason for this joint control was because he “had no routine career of the management of the central office and not having this knowledge” the management was divided between Nelson and himself, and that because of this implicit confidence reposed in Nelson, as said chief clerk of the department, by the head of the department and with the approval of the President, there were no grounds for him, the appellant, to doubt Nelson’s integrity, honesty, and capabilities, since to have attempted to do so would be throwing discredit upon Mr. Dennis, the then Secretary of the Treasury. The appellant further explained that because of growing and increasing reports concerning illicit prospecting for gold, some of which had reached the President, he was instructed to investigate one of these complaints concerning some prospectors, all Greboes, and it was as a result of the findings of this investigation that the Treasury Circular Number 4-1939, which centralized the payment of royalties on raw gold in the Treasury, was issued, and thus payments of this royalty began to come in. Appellant, continuing, testified as follows :

“In each case when checks were submitted to me for endorsement, they were accompanied in every instance with letter of acknowledgment and letter of transmission to the Bureau of Revenues. And these forming the only principles [sic] which as far as I was being [sic] directed by my co-manager, D. Colston Nelson, there was no ground for me to suspect for one moment that these checks were not finding their way to the proper source. I have been no party to any council or plot. Neither did I make any suggestion that a part of this fund should be divided between [sic] D. Colston Nelson, R. I. E. Bright, and myself. Nor did I appoint either Bright or anyone else to receive my share. I emphatically deny that I did meet Mr. Bright at Faulkner’s Cafe to discuss any matter touching the dividing of a portion of the royalty nor did Mr. Colston Nelson meet me or Bright the following morning at Faulkner’s Cafe; for it is a fact that Mr. Faulkner was not in the practice of opening his cafe in the mornings. “For the benefit of the court and jury, I do remember that on or about the 11th of May 1939 at 2:15 p.m. I was at Faulkner’s. I saw Messrs. Bright and Nelson passing, and I hailed them. I went out to meet them and suggested to them a glass of beer. Nelson said he was hungry and that he was going home because his wife was waiting for him for chop and besides he had some other business to attend at the waterfront. That has been perhaps the basis on which Mr. Nelson said that I called them at Faulkner’s on or about May 11th 1939.

“I have never presented any check personally or through any agent at the bank for encashment. Mr. Durland must have been dreaming of seeing a ghost of mine when he said he saw me standing by the window, especially so when Mr. D. Colston Nelson has admitted in his statement that he presented all the checks for encashment and that when, referring to a particular instance, the check was rejected, he went back to the bank two days afterwards to encash same. Mr. D. Colston Nelson was the custodian of all files, keys, and in fact of all the documents and property of the Treasury that is the central office; he was not in the knowledge that I was submitting to Mr. Dennis all important transactions during his tour to France and other places he would designate, so when he returned he was not ignorant of the fact that I introduced the collection of royalty on raw gold, because one Mr. Williams, a prospector at Tchien, came to Monrovia and applied to Mr. Dennis personally for a rebate on royalty collection from him. In going through the mining reports I observed that those came from Cape Palmas from Messrs. Woermann Sc, Company, Monrovia, and as there was no prospector then at Cape Palmas, I wrote to Messrs. Woermann to know who was ‘the vendor from whom their house at Cape Palmas had been buying raw gold.’ The reply that was sent was that it was from Mr. Williams who was prospecting at Tchien. I then made a list of all gold that came from Cape Palmas, and I wrote to the Superintendent of Cape Palmas (Maryland) to be in touch with Mr. Williams. I sent a similar letter to the District Commissioner of Tchien. The District Commissioner was able to get this amount and paid it to the Revenue Agent of Tchien, which amount was about $996. On this amount he applied for a rebate, on the return of Mr. Dennis. I asked Mr. D. Colston Nelson to have his files ready and also to prepare a detailed statement of royalty collected (Mr. Williams had his rebate), so that when Mr. Dennis would be free he would be able to inspect the files and have such information as may be necessary. Mr. Nelson replied that it was unnecessary to prepare a statement, because the files and the Bureau of Revenues’ monthly report are sufficient to give any and all information. I persisted but I was powerless to compel him to make this report, and perhaps because we were co-managers he would rather submit his report to the Secretary direct. Mr. Nelson’s statement therefore that he asked me to make a report is very incorrect. It escaped me to have pointed out how absurd it would be for me to present a check at the bank for encashment, then take it to the Treasury Office, hand it over to Mr. Nelson and absent myself when it was to be distributed. I must reiterate that in each case when checks were presented to me for endorsement they were in every instance accompanied with the relevant letter of acknowledgment and letter of transmission to the Bureau of Revenues. All such checks and all such letters of acknowledgment and transmission were handled by D. Colston Nelson, the chief clerk of the Treasury Department, and it was his duty to see that these letters to the merchants acknowledging receipt of their checks and the letters transmitting these checks to the Bureau of Revenues found their proper channel of travel. The chief clerk, D. Colston Nelson, had as his primary duty the opening of all letters addressed to the Secretary of the Treasury, the bringing of such letters before the Secretary of the Treasury, and in each case when letters were to be accompanied with acknowledgment and/or transmission of any document to any bureau or department, these accompanying documents were always attached to the documents demanding same. Therefore, Mr. D. Colston [Nelson] could not say that he could not identify any letters that were exhibited to him for identification, and that all letters from the Treasury Department must bear the initials of the typist who typed such letters. The statement is in variance with his own actions because in the absence of any other typist the letters so exhibited to him for identification were none else than his own work.”

From the above, it can be seen that the appellant has strenuously striven to deny all of the imputations of guilt that were attempted to be put on him by D. Colston Nelson, by showing that he had nothing to do with the checks, the proceeds of which have been alleged to have been embezzled, other than, upon their presentation together with their respective and relevant letters of acknowledgment and of transmission, to endorse them and sign said relevant letters and hand them back to Mr. Nelson who invariably made the presentations for disposition in the regular and proper way. This phase of the appellant’s testimony, strong, cogent, and emphatic as it is, having the tendency to break down every imputation of guilt on his part, was never rebutted by a single witness, not even by D. Colston Nelson himself, even though the right of introducing evidence in rebuttal had been reserved by the prosecution. Appellant’s testimony is strong in suggesting that the miscarriage of the checks was at a stage after he had endorsed them and handed them back to Chief Clerk Nelson for transmission to the Bureau of Revenues together with the letters of transmission already signed and also handed back. This testimony of the appellant is also supported by the evidence of witness Robert I. E. Bright. This also was not denied in rebuttal, even in face of the general notice of rebuttal given by the prosecution.

And what is more, the testimony of witness Robert I. E. Bright, corroborating the evidence of the appellant, has successfully broken down the entire evidence of D. Colston Nelson insofar as it relates to the guilt of appellant, even though the testimony of the said D. Colston Nelson had tended to show that the appellant, Robert I. E. Bright, and he, the said Nelson, had formed a conspiracy to defraud and embezzle revenue from the Government. This is how the testimony of witness Bright commences after a question put to him by appellant’s lawyer wherein were recited the imputations of guilt made against him, the said Bright, and against appellant by witness Nelson whilst testifying for the prosecution :

“I do not know anything about any conspiracy to detain a portion of .Government’s revenue, royalty or otherwise. I remember that sometime in the year 1939, I think it was in the month of February, the Treasury, for obvious reasons, issued a circular, the number of which I cannot state now; but I know it was for the collection of ten percent royalty on raw gold. The President at that time was at Kakata. When the circular was prepared, the defendant, who was then acting for the Secretary of the Treasury, sent the circular up to the President for approval. I believe it was Mr. Nelson, the chief clerk, who took the circular up to Kakata to the President for his approval. The circular, being approved, was put into effect. “The circular, among other things, required merchants or purchasers of raw gold to deduct a ten percent as royalty from the value to be paid to the vendor and at the close of each month to forward to the Treasury a report with the amount collected. When these reports were handed to the chief clerk, Mr. Nelson, it Was the procedure of the Treasury that official letters must be opened by the chief clerk and the reply prepared before taking it to the Secretary for signature. When these reports came I remember that at times the chief clerk would ask me to type the letter for acknowledgment and also the letter transmitting the amount to the Bureau of Revenues. What became of the checks after they had been signed, I cannot say for certainty. It is evident, however, from these proceedings, that the amounts were not properly accounted for. Had an investigation been held at the Treasury at the time of the misappropriation, which is the usual procedure followed by the Treasury Department, an opportunity would then have been offered us to prove from the files or the record of the Treasury where the responsibility lies. The files of the Treasury would have shown the copies of the letters of transmission or, if they were not there, the numbers which these letters bore would have been missed from the files ; and perhaps the dispatch books of the Treasury would have thrown some light as to who received those letters ; but as I have said before that no investigation was had despite the fact that I called at the Department of Justice twice, requesting an investigation. I have already said that I know nothing about any conspiracy; I never went with Mr. Nelson and/or defendant Sawyerr to Mr. Faulkner’s Cafe or anywhere else to form any conspiracy to deprive the Government of any portion of its revenues, to say nothing about acting as agent for Mr. Sawyerr to receive portion of money belonging to him. So far as I know, the depositary agreement up to the time that I left the Treasury said nothing about checks issued in favour of any government official, how it should be cashed. And I believe as late as last year’s checks issued in favour of the Secretary of the Treasury by Hon. Dixon Brown was [sic] endorsed by the Secretary of the Treasury, Hon. James T. Phillips, [and] presented to the bank for encashment by Mary Terry, without any objections being raised. So the necessity of contacting any bank cashier so far as to have him or them encash any check never existed insofar as I know. I did not contact M. A. Jones or any other bank cashier . . . to have any check encashed.”

Continuing, witness Bright refuted the statement given in evidence by D. Colston Nelson to the effect that the first amount embezzled by them was fifty pounds taken out of one hundred and fifty pounds paid by the Cie F.A.O. account confiscation of gold ; and his testimony agrees with that of the appellant in substance that it was only £66.16.9 paid in by Cie F.A.O. account confiscation of gold and that this amount was duly deposited, as is evidenced by official receipt given for it bearing number 24680. If, then, the evidence of the appellant and witness Bright agree, which, both in substance and effect, denies and breaks down that of D. Colston Nelson, which is without corroboration, it is easily seen that the said testimony of Nelson must fall and crumble. And since the admissions and confessions made by Nelson must be taken against him, not apparently having been influenced or induced ; and he confessed being the one who cashed the several checks, whose proceeds have been alleged to have been embezzled, but failed to prove that the division to which he testified was truly made, it is reasonable to assume and conclude that Nelson is responsible for this charged misappropriation. To us there seems to be no available alternative conclusion.

The evidence of witnesses Magnus Jones and D. L. D. McCauley, in addition to denying having been associated in any conspiracy to defraud the Government of any of its revenues as testified to by witness Nelson, does tend to show the truthfulness of that part of the said witness Nelson’s statement to the effect that it was he who invariably presented the several checks for cashing, the cash proceeds from which are the subject of this prosecution. Therefore, if it were he, the said Nelson, who presented the relevant checks for cashing and received the proceeds therefrom, in the absence of sufficient and adequate proof of his having shared the proceeds with the appellant and Mr. Bright, as he sought to show, the natural presumption and conclusion must be that he made the felonious and fraudulent conversion to his own use and benefit.

All these facts taken together have the tendency to abolish the attribution of any criminal intentions to appellant, and also fall short of any proof of felonious and fraudulent conversion by appellant to his own use and benefit of the amount charged against him or any portion thereof. Under the circumstances, the responsibility must revert to witness D. Colston Nelson.

According to our statutes and the common law, “embezzlement is a fraudulent appropriation of another’s property by a person to whom it has been intrusted or into whose hands it has lawfully come.” 15 Cyc. of Law & Proc. Embezzlement 488 (19o5) ; L. 1922-23, ch. XIX, § 2; 20 C.J. Embezzlement § 1, at 407 (1920) ; 9 R.C.L. Embezzlement § 2, at 1264 (1915)

There is no evidence in the record to show any fraudulent appropriation by appellant of any funds of the Government that had been entrusted to him or had lawfully come into his possession. Even what acts of his might have been considered tainted with criminal intentions, such as the issuance of the circular which centralized the collection of royalties on raw gold in the Treasury and the apparent departure in two or more instances from appending his official signature of endorsements on checks issued in favor of the Secretary of the Treasury under the notation or direction “Pay to the Supervisor of Revenues,” were explained by his own testimony as well as by that of witness Bright, which has not been rebutted by the prosecution nor was an effort made to do so.

This Court has been so zealous in the safeguard of the rights, liberties, and privileges of litigants, especially of those criminally charged, that it has oft and anon been unwilling to confirm convictions unless upon conclusive proof of the prisoner’s guilt. We quote from Dyson v. Republic, [1906] LRSC 6; 1 L.L.R. 481 (1906) :

“In all trials upon indictments the State, to convict, must prove the guilt of the accused with such legal certainty as will exclude every reasonable hypothesis of his innocence ; the material facts essential to constitute the crime charged, must be proved beyond a rational doubt or the accused will be entitled to a discharge. But we do not mean by this statement to convey the idea that before a conviction can be made there must necessarily be submitted to the jury direct and positive evidence of the crime charged. There are a great many human actions in which such evidence would be absolutely impossible to obtain, and so we have what is known in law as circumstantial and presumptive proof. . . .” Id. at 483.

Dunn v. Republic, [1903] LRSC 3; 1 L.L.R. 401 (1903) is equally pertinent :

“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 although there are instances where the burden of proof shifts, as where the prisoner attempts to justify, the case under consideration does not fall within the exception to the general rule. And, says Mr. Archbold, where the plea of the defendant is ‘not guilty,’ the prosecution must prove defendant guilty of the charge before the latter can be called upon for his defence. (1 Arch. Crim. Pleadings, p. 359.) And the prosecution must prove it beyond a rational doubt. In civil cases the jury may decide according to the preponderance of evidence, but in criminal cases—cases affecting life or liberty—the evidence must be so conclusive as to exclude every rational doubt of prisoner’s guilt; for if, after hearing all the evidence, the mind of the jury is in such condition that it cannot say it feels a moral certainty of the truth of the charge, then there arises a doubt, which must operate in favor of the accused.” Id. at 405. (Emphasis added.)

In our opinion the case was not proved so as to remove all doubts about the prisoner’s guilt. In other words, the guilt of the prisoner was not established. Therefore it is difficult to appreciate the jury’s conclusion of guilt of appellant as is evidenced by their verdict. And it is even more paradoxical in face of the testimony of witness Nelson wherein he unequivocally confesses that he cashed the checks, the proceeds of which are the basis of this prosecution for embezzlement, and, with Robert Bright, made the division into thirds to be shared among him, the said Nelson, Bright, and the appellant, that the judge entered a judgment against appellant for the restitution of the entire amount charged in the indictment, in face of Nelson’s own confession that he appropriated to himself approximately one-third of the amount charged.

It is therefore the opinion of this Court that the judgment of the court below be reversed and the prisoner ordered discharged without day from further answering the charge of embezzlement; and it is hereby so ordered.

Reversed.

Mr. Chief Justice Grimes, not being in agreement with our decision to reverse the trial court’s judgment with an order for appellant’s discharge, dissents. The Honorable Chief Justice is of the opinion that the cause should be remanded for a new trial.