J. HENRY SWARAY, Appellant, v. REPUBLIC OF LIBERIA, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued October 11, 15, 16, 22, 23, 1962. Decided February 8, 1963. 1. The Constitution does not bar the circuit courts from indictment and trial of one accused of embezzling Government funds while stationed abroad as a public official. 2. In a criminal trial, a motion by the defense for a directed verdict is in the nature of a demurrer to the proof. Such a motion concedes all facts which the evidence brought forward by the prosecution tends to establish–but solely for the purpose of determining whether the prosecution has established a prima facie case. 3. The essential facts which an indictment is required to set forth do not include documentary proof. 4. Where an indictment fails to set forth essential facts, the defendant’s remedy is a motion to quash, rather than an objection on the ground of insufficient notice. 5. A nonexpert witness may ordinarily testify only as to facts within his personal knowledge or recollection. 6. A reversible variance between indictment and proof must comprise a substantial departure as to a material fact. 7. The constitutional right of every person criminally charged to be seasonably furnished with a copy of the charge is satisfied when an accused is furnished with a copy of the indictment which states the charge with sufficient certainty to enable the accused thereafter to plead autrefois convict or autrefois acquit. 8. Prima facie evidence is sufficient to support a verdict in favor of the party introducing it when no evidence has been produced in rebuttal. 9. Where an indictment has furnished the accused with sufficient notice of the charge on which he was tried, the failure of the prosecution to supply a bill of particulars cannot be raised for the first time on appeal as ground for reversal of a judgment of conviction. On appeal, a judgment of conviction of embezzlement was affirmed. Cooper and Beysolow Law Firm and Samuel Cole for appellant. Attorney General J. J. F. Chesson and Solicitor General J. Dossen Richards for appellee. MR. JUSTICE MITCHELL delivered the opinion of the 149 Court. 150 LIBERIAN LAW REPORTS This case appears to have stirred great curiosity, interest and excitement. But this forum, unlike other public forums where contending opinions and sentiments blaze into flames of fury, is a shrine of justice, of sobriety and of balance, where justice is measured out on an equal basis according to our basic law–a shrine that has always remained unshaken amidst the greatest storms and most boisterous billows, and within whose walls men have, over the years of the existence of this Court, maintained and practiced their high calling. Mr. Justice Tubman, speaking for this Court in an opinion delivered in the year 1942, said, among other things, and I quote : “Ever and anon, there arises some litigation in the course of judicial proceedings like a mighty billow raising itself to a magnificent height as out of sea, arousing public excitement, curiosity, anxiety and interest. “The civilians, as seashore visitors and dwellers, look on, some with fear, others with satisfaction, and yet others with amazement and trembling; but these legal billows seem, as it were, to dash themselves upon the shore as do the ocean billows and recede into the sea again, for each is a part of the same ocean and of the same great national superstructure. . .. Like a monstrous billow, this cause now being adjudicated has lifted itself, rolling on towards shore, and the noise of its tremendous roaring has been heard . . . but now in a state of judicial tranquility and poise, we have come to the point of quelling, by judicial opinion and judgment, the boisterousness of this sea that has been roaring so loudly.” Fazzah v. National Economy Committee, [1943] LRSC 2; 8 L.L.R. 85, 86 (1943). We have quoted the opinion of. Mr. Justice Tubman, supra, not to convey the impression that the instant case grew without control by the law, but only to show that sentiment, curiosity, interest and anxiety exaggerate some . LIBERIAN LAW REPORTS 151 litigation in a like manner as the monstrous billows, so that only the poise, judgment and concentrated attention of those entrusted with the sacred duty of dispensing impartial justice can provide tranquility through sound judicial conclusions for the safeguarding of the rights of individual citizens and the safety of the State. Whilst serving in the capacity of Consul General in the Liberian Consulate General at Hamburg, West Germany, J. Henry Swaray, defendant below, now appellant, was called upon by one L. Sarragossa, a member of an auditing commission appointed by the President of Liberia, to inspect the accounts of Liberian diplomatic and consular missions abroad, for the purpose of auditing the accounts of the aforesaid Consulate General, which was then under the direct control of the appellant in this case. Other members of the commission, headed by Mr. Frank J. Stewart, remained in Paris, France, whilst Mr. Sarragossa was sent to perform the duty in Hamburg. According to the records before us, the audits were conducted from late October to early November, 1958; and after some days of strenuous work in auditing the accounts of the consulate, the inspector, it would appear, observed several discrepancies and shortages which, the records reveal, he reported by telephone to Mr. Stewart. Upon this information, Mr. Stewart made his way to Hamburg for the purpose of reviewing the work of Mr. Sarragossa; and he became convinced that the report of Mr. Sarragossa to him concerning the shortage observed in the accounts at the consulate was correct. Consul General J. Henry Swaray being directly responsible to the Government of Liberia for such deficit, Mr. Stewart addressed the following letter to him on November 28, 1958 : “MR. CONSUL GENERAL: “The audit of the Liberian Consulate General in Hamburg. reveals “I. That some official bills were paid from the Consul General’s private account. 152 ” 2. LIBERIAN LAW REPORTS That some Government remittances have been deposited to the personal account of the Consul General, and were not transferred to the official account of the Mission. ” That revenue deposits are made every two or 3� three months; for example, from September, 1957 to September 3o, 1958, only two deposits were made in the sum of DM 32,00o, although approximately DM 15o,000 was collected during that period. 4. That the actual deficit of the Consulate General is as follows: Total difference between amount collected and amount DM 168,842.13 deposited : Less amount of revenue used for budget expenditure : 61 ,446.50 Adjustment of error: DM 107,395.63 1 ,33 0.43 Total unexplained shortage : DM 106,065.16 “In order that we might be in position to convey as full a picture of the situation as possible, I ask you to kindly submit to me detail observation on the items listed above before your departure for Monrovia.” To this communication Mr. Stewart, the Consul General made the following reply: “MR. INSPECTOR : “I have the honor to acknowledge the receipt of your letter of the 28th instant, by which you brought to my attention certain alleged discrepancies, set forth in four counts, which are said to have been revealed by the audits as existing in the accounts of the Consulate General. To clarify these matters, I beg to submit the following factual explanation : “I. As to Count 1, which generalizes and states that LIBERIAN LAW REPORTS 153 some official bills were paid from the Consul General’s private account I should like to point out that this statement clearly answers the point raised in Count 2 below, to the effect that some Government remittances have been deposited to the personal account of the Consul General and were not transferred to the official account. It is not known exactly what checks the audit has reference to, but if checks were found to have been paid from the Consul General’s private account, it was simply because such remittances had been wrongly credited to his personal account by the bank which, no doubt, merely carried out the instructions of the remitting source. The Consul General, naturally, upon knowing afterwards what the remittance was for (it being a well-known fact that sometimes remittances are made far in advance of relevant instructions), paid same out of his personal account in settlement of the particular account indicated by the Treasury. In the absence of specific figures, it is presumed that, perhaps, one of the items to which the audit might refer is the sum of $2,700 which was remitted in the month of September, last year, to meet the medical bills and expenses of transporting the remains of the late Mr. B. Y. Sandimanie from Germany to Liberia. This remittance, for example, was treated privately, and a full account was rendered to the appropriate authorities. This method of operation, if considered faulty or irregular, is not to be blamed on the Consul General, but rather on the system in vogue, whereby sometimes, remittances are made in the name of an individual instead of the Mission, and without stating the purpose for which the remittance is made until afterwards; quite 154 LIBERIAN LAW REPORTS naturally, where the individual happens to have a personal account. Nevertheless, whenever and wherever such transactions have occurred, the necessary adjustments have been made in the accounts. “2. Count 2 states that some Government remittances have been deposited to the personal account of the Consul General, and were not transferred to the official account of the Mission. I do not know how this statement can be reconciled with Count 1. However, the explanation given as to that count can fully answer for this allegation as well. “3. With reference to Count 3, which relates to collections and deposits, I should like to state that deposits were made immediately whenever it was found that a sizeable amount had been accumulated in the transfer account. As a matter of fact, until recent times, when the Mission found itself running into overexpenditures, in a patriotic and loyal effort to promote the highest possible standard of representation and maintain the Government’s prestige in the absence of adequate budgetary provisions, deposits were made at the end of each month. But, truthfully and emphatically speaking, by no means am I aware of the alleged difference between collections and deposits for the period from September, 1957, and September, 1958, even allowing for the legitimate overexpenditures made during that period, for which executive approval has been sought. It is inconceivable that, within such a relatively short space of time, such an alarming deficit could have occurred. In fact it is absolutely impossible; and I should like to declare here, in all sincerity and honesty, that I am not by any means LIBERIAN LAW REPORTS 155 guilty of this alleged situation and cannot accept responsibility for same. “4. The figure of DM o6,o65.16, shown under Count 4 as a total unexplained shortage, is bewildering, and to me, appears to be a mysterious vacuum. I cannot bring myself to believe this picture is true and correct, and must emphatically deny being guilty of the alleged shortage. In an attempt to imagine how such a situation, if at all true, could have arisen, I should like to refer again to the system of operation in vogue, and also to draw attention to the repeated requests which I have made from time to time–all in vain–for the appointment of a Liberian as Vice Consul to assist in the discharge of the multifarious duties of this important post. With only one Liberian consular officer on hand to carry on office routine; meet guests arriving almost daily, either at the airport or the railway station; make frequent trips out of Hamburg to other ports of the Federal Republic of Germany for the purpose of registering ships; arrange medical appointments; and attend to Liberian patients in various hospitals; attend official functions, etc., it can be clearly seen that the lot of anyone assigned to this post under such circumstances is a difficult one. Being thus single-handed, as explained above, it was not humanly possible for me to have undertaken, as well, the routine work of day-to-day checks on the processing of invoices and other documents, the collection of fees, or personal control of the accounts, if at all correct. Under the present system of operation, the bookkeeper ( a foreign local employee), is charged with the responsibility of processing invoices, visas and other documentary legalizations, the 156 LIBERIAN LAW REPORTS collection and recording of fees and the making of deposits. The Consul General does not handle fees himself. It is only the result of these operations that is brought to his attention at the time of each reporting–the end of every quarter of the year. And because, I repeat, of pressure of work, and the other circumstances outlined above, I have had to accept and rely on the figures presented to me from time to time. During the time of former Consuls General Roland H. Cooper and S. Edward Peal, the system was about the same, but with the essential difference that there was also a vice consul (Mr. Joseph Graham) who, apart from assisting with routine administration, kept a daily check on the records of collections and deposits. At that time the activities of the Consulate General were not as complex and brisk as they are now. But because of the unmanageable circumstances enumerated above, this system of operation was not possible of application in my case, and hence this strange revelation, over which I am terribly shocked. I can only repeat most humbly, categorically and conscientiously, that I am not guilty of any such act of dishonesty as this picture would tend to portray; and, therefore, I earnestly crave that liberal consideration and sympathetic understanding which my unfortunate and peculiar position deserves.” After the exchange of correspondence already quoted in this opinion, the commission tendered a report on its findings to the Department of State, and the Consul General subsequently returned to Monrovia. It would appear that the matter of the deficit remained in abeyance for some time; but eventually Mr. Swaray was relieved of his duties as Consul General at Hamburg; and at the November, 1959, term of the Circuit Court of LIBERIAN LAW REPORTS 157 the First Judicial Circuit, Montserrado County, an indictment was found by the grand jury against J. Henry Swaray, defendant, for the crime of embezzlement, charging him with unlawfully, wrongfully, intentionally and feloniously embezzling by converting and appropriating to his own use and benefit the sum of $28,992.07, the same being the property of the Republic of Liberia, without her knowledge and consent. The case was called for trial on June 2, 1961, when the defendant, being then and there arraigned, pleaded Not Guilty to the indictment; and his trial began. As the prosecution rested oral testimony, and attempted to put into evidence the report of the commission, the defendant interposed objections against the admission thereof ; but these objections were overruled, and the document was admitted to form a part of the evidence for the prosecution. At this point of the trial, the defendant, through counsel, made the following record : “In view of the fact that the prosecution has, up to this stage, not made out a prima facie case of embezzlement against the defendant, only after which, in keeping with our law and practice may the defendant be called to answer in a criminal prosecution, the defendant moves the court for the dismissal of this criminal prosecution, and prays for a directed verdict, especially reserving the right to offer evidence, should he think it necessary if said motion is not granted.” The plaintiff countered this motion with the following objection : “The prosecution maintains that it has made out a prima facie case of embezzlement against the defendant, and has established by evidence all the essential elements of the crime of embezzlement; and therefore the motion of the defense is unfounded and should be denied.” Thereupon, the trial court made the following ruling: “Under our statutes, it is specifically provided that 158 LIBERIAN LAW REPORTS every person charged with a criminal offense who is deprived of any of his constitutional privileges is not deemed to have had a fair and impartial trial. It is therefore the opinion of this court that, irrespective of all the facts brought in issue, and in furtherance of the principle of criminal law that the facts and surrounding circumstances must be put before the jury, who are the sole judges of the facts, it would be in total violation of our statutes to try defendant Swaray for the crime of embezzlement without giving him an opportunity to defend himself or to say anything in his own behalf. The motion of the defendant is denied ; and the defendant may elect to testify on his own behalf, if he so desires. And it is hereby so ordered.” To this ruling of the trial court, the defendant noted his exceptions, and made it known that he did not elect to take the stand. In view of this announcement of the defendant, the case was argued and submitted to the empanelled petty jury who retired and returned a verdict of Guilty against the defendant, to which he excepted. After conforming to the usual legal requirement by filing his motion for new trial, which was denied, he also excepted to the judgment of the court, and announced his appeal before this tribunal for review. He completed all of the jurisdictional steps necessary to be taken, and has brought his appeal on a bill of exceptions composed of r i counts which we shall review later in this opinion. At the meeting of this term of the Supreme Court, the case was called for hearing, having been advanced on our trial docket upon the request of the prosecution without objection from the defense. Appellee then filed a motion to dismiss the appeal on the ground that the records had been delayed in transmission from the lower court, and that instead of being sent forward within the 90 days required by law, they were 389 days coming forward, which delay appellee alleged to be due to the negligence of the appellant in the prosecution of his appeal. Objec- LIBERIAN LAW REPORTS’ 159 tions were preferred by the appellant against said motion. This Court, ruling thereon after argument, denied the motion because it did not set forth any recognized ground for dismissal under our statutes which specifically enumerate the grounds for dismissal of appeals. As we attempted to open the records in the case for a hearing on the merits, appellant filed a motion entitled : “Appellant’s Motion to Vacate the Proceedings and Discharge him from Further Answering of the Charge.” In this motion, he took the position that the trial court had no power under our Constitution to try him for any crime allegedly committed by him whilst serving as Consul General of the Republic of Liberia at Hamburg because it would be in conflict with Article IV, Section znd, of the Constitution of Liberia, which provides as follows : “The Supreme Court shall have original jurisdiction in all cases affecting ambassadors, or other public ministers and consuls, and those to which a County shall be a party. In all other cases the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Legislature shall from time to time make.” This motion of the appellant was strongly resisted by the appellee in four counts. The ruling made by the Court on said motion and resistance seems to be of such importance to this opinion that we do not hesitate to quote the body of it word for word, as follows : “Appellant challenges the jurisdiction of the circuit court over an offense allegedly committed in defendant’s capacity as Consul General of Liberia in Hamburg, Germany. In support of this contention, appellant cites Article IV, Section 2nd, of the Constitution, which provides that the Supreme Court shall have original jurisdiction’ in ‘all cases affecting ambassadors or other public ministers and consuls, and those to which a County shall be a party; and that, in other cases, the Supreme Court shall have appellate juris- 160 LIBERIAN LAW REPORTS diction, both as to law and fact, with such exceptions and under such regulations as the Legislature shall from time to time make. “The resistance of the appellee to this motion comprises four counts. That which this Court finds of particular importance is found in Count 3 of said resistance, citing Article I, Section 7th, of the Constitution, which provides that no person shall be held to answer for a capital or infamous crime except in cases of impeachment, cases arising in the army and navy, and petty offenses, unless upon presentment by a grand jury, and shall have a speedy and impartial trial by a jury of the vicinity. This poses a question of reconciling two provisions of the Constitution, since neither side can deny the basic jurisdiction of a circuit court to try a case of embezzlement. Elaborating on the provision of the Constitution which appellant has cited as prohibiting the circuit court from exercising original jurisdiction over his person because of the official position which he held at the time he was charged with misappropriation of public revenues, appellant argues that any case arising from such alleged misappropriation must originate in the Supreme Court, he being within the category of public servants named in Article IV, Section 2nd, of the Constitution. Appellee further contends that the institution of process against him, and trial by the circuit court, was contrary to the wording and spirit of Article 4, Section 2nd, of the Constitution ; and hence, the entire proceeding should be vacated, and he should be discharged. On the other hand, the prosecution contends that, in any case involving a breach of official duty by a public servant, original jurisdiction lies exclusively in the circuit court; and therefore the immunity claimed under Article IV, Section 2nd, of the Constitution could not be enjoyed by appellant. “Having carefully considered the arguments made LIBERIAN LAW REPORTS 161 on both sides, we must conclude that, considering the intention of the framers of the Constitution with respect to infamous crimes for which one must be indicted and tried by a jury, only a circuit court could exercise original jurisdiction in the manner prescribed in Article IV, Section 2nd, of the Constitution. The reason lies in the fact that the Constitution does not authorize the Supreme Court to institute criminal proceedings by a grand inquest, or prescribe any procedure for trial of infamous crimes. The complete absence of any procedural provision for the trial of infamous crimes by the Supreme Court was obviously intended to withhold from this Court original jurisdiction over prosecutions of infamous crimes committed by the public officials named in Article IV, Section 2nd, of the Constitution. “Moreover, the record does not support the appellant’s contention that he was tried in his capacity as Consul General, since the appellant, as a party in the case, is carried in all of the pleadings in his private capacity. The fact that he is referred to in the body of this indictment and other pleadings as having committed the offense whilst serving in the capacity of Consul General does not support the contention that he was prosecuted as Consul General; especially since, in Count 4 of appellee’s resistance, it is specifically alleged that, because appellant had been unfaithful and dishonest in the discharge of his duties by appropriating to his own use an enormous sum of Government revenue, he was dismissed and turned over to the Department of Justice for prosecution; which submission and allegation, in so far as the dismissal by the Government of appellant prior to his prosecution, has not been denied by the appellant. “It is our considered opinion that a breach of official duty by a public servant, by the commission of a crime whilst in office, divests him of any possible immunity 162 LIBERIAN LAW REPORTS , from criminal prosecution under Article I Section 7th, of the Constitution. “Because of the foregoing reasons mentioned, and the constitutional citation recited in the motion of appellant, as well as that cited by appellee in resistance, said motion is hereby denied. And it is hereby so ordered.” After the reading of this ruling, it was felt that all legal issues to be raised before the consideration of the case on its merits had been disposed of ; hence appellant began argument on the opening. The case was thereafter suspended, to be resumed on the next day, and the Court adjourned. Here, to our surprise, upon the call of the case the next morning for appellant’s counsel to continue argument, our attention was drawn to the fact that the appellee had filed a submission alleging as follows : “1. During the trial of this case in the court below, and after the State had submitted her side of the case to the court and jury, and when the defendant was called upon to submit his side of the case, the appellant, defendant below, through his counsel, made the following record : ” ‘The defense gives notice that, in view of the fact that the prosecution has, up to this stage, not made out a prima facie case of embezzlement against the defendant, only after which, in keeping with our law and practice, the defendant may be called to answer in a criminal prose’ cution, the defendant moves the court for dismissal of the prosecution, and for a directed verdict of acquittal, specifically reserving the right to offer evidence if said motion is not granted.’ Appellee submits that appellant having, by demurrer, admitted the truthfulness of all the facts given in evidence by the prosecution, waiving all irregularities and contradictions if there were any, LIBERIAN LAW REPORTS 163 as well as objections to the admission into evidence of documents, etc., the only question for the Court to determine is what the law is on the facts which appear in evidence; in other words, the case as it now stands hinges on questions of law to be determined by this Court. “2. Appellee submits further that, in view of the record made by appellant in the court below, and the legal effect thereof, he cannot here and now question the evidence, or raise any objections thereto, or complain of any alleged contradiction in said evidence. “Wherefore appellee respectfully submits that, in view of the foregoing, argument in this case should be restricted solely to questions of law.” Appellant, resisting the above-quoted submission, alleged, in substance, as follows : i. That, aside from being a novelty and void of legal merit, the submission was made too late because the case had been opened and appellant had begun his argument on both the law and the facts; hence, in suggesting that the case should be confined to consideration of only the law, appellee should have filed his submission before argument began. 2. That the submission was contrary to law, in that this Court is required, in matters of appeal, to examine upon the merits of every decision of the court below as to all questions of law, and look into the evidence, and affirm, reverse or quash the proceedings as justice shall require. 3. That it is a well-settled principle of criminal law that where the plea of the defendant is Not Guilty, the prosecution is bound to prove him guilty of the charge beyond a reasonable doubt before he can be called upon to defend; and where, from the defendant’s point of view, the prosecution fails to make out a prima facie case against him, it is his 164 LIBERIAN LAW REPORTS right to demur to said evidence ; and in doing so, he does not in any way admit the truthfulness of any facts deposed to by witnesses for the prosecution ; nor does he thereby waive irregularities and contradictions contained in the trial records. 4. That defendant’s demurrer was for the express purpose of questioning the sufficiency of the prosecution’s evidence in support of the indictment, and of denying that the evidence made a prima facie case of embezzlement against him. The trial court decided only on the legal effect of such facts as were testified to; and he took exception to said ruling, thereby reserving said points for review by this Court whose right and duty it is to examine all cases on the facts and points of law presented. This Court thus had to make another ruling, which also must form a part of this opinion, and which is quoted hereunder: “For the third time, now, our review of the merits of this appeal has been interrupted by motions designed to bring this case to a hasty end, and by the advancement of points of law that could divert our minds from concentration on the issues of fact presented at the trial in the court below. We are again faced with another submission, the first of this kind ever raised, as far as our memory goes, in our courts of justice, and primarily based on the common law. “The submission now before us grows out of a request made to the court in the trial below for a directed verdict because, as the appellant felt, the evidence of the prosecution was not sufficient to convict him of the crime of embezzlement as charged. This, of course, was denied ; yet the defendant, now appellant, reserving the right to produce evidence if said motion was denied, did not produce any evidence on his behalf; nor did he elect to take the stand to testify in his own behalf. The case was therefore submitted to the jury solely on the evidence of the prosecution. LIBERIAN LAW REPORTS 165 “After the appellant commenced argument on the merits of the appeal, as was ordered by this Court, review of the case was suspended pending completion of said argument by the appellant. An interruption was interposed by a submission of the prosecution claiming that, appellant having demurred to the evidence produced by the appellee, he must be considered as having waived all objections to the admission into evidence of documents, etc., produced at the trial by the prosecution, as well as waiving all irregularities and contradictions, if there were any, and admitting the truthfulness of all the facts given in evidence by the prosecution, leaving only for the determination of this Court the law on the facts which appear in the evidence. “The legal principle relied upon by the appellee in her submission has been authoritatively summarized as follows : ” ‘A demurrer to the evidence waives all objections to the admissibility thereof, and admits solely for the purpose of deciding the demurrer and not otherwise, the truth of all the facts shown or which evidence tends to establish, and all proper and legitimate inferences deducible therefrom, but denies that they make a prima facie case; and the Court decides upon the legal effect only of the facts, not upon the sufficiency of their proof. ” ‘Countervailing evidence must be rejected ; and the state’s evidence, on demurrer thereto, must be interpreted in the light most favorable to the state.’ 23 A C. J.S. 355-356 Criminal Law � 1143 (3). “Another reference which we do not consider so cogent to the point of argument advanced by appellee will be nevertheless quoted for the sake of this opinion : ” ‘A demurrer to the evidence has been defined as a proceeding by which the court is called to determine what the law is on the facts which appear in evidence. As otherwise defined, it is a declara- 166 LIBERIAN LAW REPORTS tion of record that the party demurring will not proceed further because the evidence given by his adversary is insufficient to maintain his cause of action or the matter of his defense, and is analogous to a demurrer in pleading; and its office, similar to that of a motion for a nonsuit in a civil proceeding, is to withdraw the case from the consideration of the jury and present to the court, in a formal manner, such facts as were fully proved, and such other facts as the evidence tended to prove, for the purpose of obtaining the judgment of the court as to their legal sufficiency to establish the charge against the accused.’ 23A C.J.S. 352-353 Criminal Law � 114.3(0. “The prosecution submitted, during argument, that there was no statute law or recorded opinion of this Court on this novel issue; hence, the common law, quoted supra, ought to prevail. “Appellant filed resistance to the sustaining of the request contained and prayed for in appellee’s submission, and advanced argument in support of this contention in four counts. “Very forensic and erudite were the arguments advanced on both sides, and we will now proceed to resolve these adverse points of view as follows : “The statutes of Liberia, as well as recorded opinions of this Court, provide that on matters and issues where the statute laws of Liberia are silent, the common law shall apply. “Appellant maintained that our statutes are not silent on this point, and cited in support the following: ” ‘After the plaintiff has finished the presentation of his evidence, the defendant, while specifically reserving his right to offer evidence if the motion is not granted, may move for a dismissal of the action at that time on the ground that on the facts and the law the plaintiff has shown no right to relief. If LIBERIAN LAW REPORTS 167 the motion is granted, the court shall direct the jury to bring a verdict for the defendant. If the motion is not granted, the defendant may present his evidence as if the motion had not been made.’ 1956 Code, tit. 6, � 623. `The defendant may testify as a witness in his own behalf, in accordance with the rules governing other witnesses ; provided, however, that he cannot be compelled to testify and he cannot be compelled to answer questions which may incriminate him. No inference shall arise from failure of the defendant to testify.’ 1956 Code, tit. 8, � 274. “Pressed by this Court was the following question to the Attorney General, when closing argument for the appellee: Is a motion for a directed verdict synonymous with, and in the nature of a demurrer to the facts testified to and recorded by the prosecution witnesses as being sufficient to convict appellant? His answer was in the affirmative. Assuming the answer made by appellee’s counsel to be correct, we are at a loss to understand how a defendant under a criminal charge could be considered as admitting all of the testimony of the prosecution witnesses, as well as waiving all irregularities and contradictions, if there were any objections to the admission into evidence of documents, etc., leaving for the court to determine only what the law is on the facts which appear in the evidence. In other words, appellee contends that appellant is precluded from setting up any defense, either in law or fact, because of the demurrer brought about by his motion for a directed verdict. “We must first express an opinion as to whether there is a statute of Liberia on the point; and in doing so, we must accept the theory advanced by the prosecution that a motion for a directed verdict is in the nature of a demurrer to the sufficiency of the evidence of the State to convict. That being the ease, our 168 LIBERIAN LAW REPORTS statute law on the point cannot be considered as silent. See 1956 Code, tit. 6, � 623, quoted, supra. “The court cannot and does not determine the sufficiency of the evidence to convict; this is the exclusive right of the jury. The fact that, under our statutes, a defendant still has the right to produce evidence in his defense after a denial of his motion for a directed verdict, demurring to the sufficiency of the testimony of the State’s witnesses to convict him, makes the provision of the common law on which the appellee principally relies, restricting the court solely to determination of what the law is on the facts which appear in the evidence, in conflict with our statutes. It must therefore give way to what the statute law of Liberia, as quoted supra, provides on the point. “Because of the foregoing and the law quoted in support thereof, we have no alternative but to deny the submission of appellee and proceed in continuation of argument on the merits of the appeal. And it is so ordered.” This principle of law introduced through appellee’s submission might be considered by many of our practitioners to be a strange one, because not introduced into our practice before; but this Court does not consider it strange, because the science of law continues to grow and expand each day, and it is expected that the minds of talented lawyers must continue to feed from that estuary which offers new theories and principles each day as it continues to expand in breadth and depth. It is not gainsaid, either, that the opposite side displayed alertness in its arguments ; and we have felt it propitious to couch them herein so that this opinion might reflect them all as they were presented, for future reference in our practice. When argument was resumed, the appellant reverted to his brief and argued that a prima facie case had not been made out against him ; that he had not been given adequate notice of what the prosecution intended to LIBERIAN LAW REPORTS 169 prove; and that it was an incurable legal blunder for the prosecution to fail to submit a bill of particulars in support of the indictment. Appellee having countered appellant’s contentions, we will now proceed to review the counts of the bill of exceptions, seriatim. In Count i of the bill, appellant contends that it was error on the part of the trial court to overrule his objection to the following question put by the prosecution to witness Frank Stewart on direct examination : “Q. At the conclusion of your inspection, you submitted a report thereon to which you referred. I pass you this document. Say what you recognize it to be.” Appellant’s objection was based on his not having been served with notice of the document to which the question put by the prosecution, supra, referred. In considering this count of the bill of exceptions, we shall first quote our statute controlling the nature and contents of an indictment : “The indictment shall be a plain, concise and definite statement of the essential facts constituting the offense charged. It shall be signed by the prosecuting attorney. It shall contain a formal commencement, a formal conclusion and any other matter necessary to an indictment.” 1956 Code, tit. 8, � 14o. The report which the prosecution sought to have the witness identify embraced the essence of the crime for which the defendant had been indicted and was being tried. The said report contained nothing more than was already laid in the indictment; and the witness had already testified to the fact that the report had been made. Although the defendant had not been furnished with a copy of the report, it cannot be denied that the report contained the same facts of which the defendant had been apprised after the completion of the audits of his accounts ; thus he had been informed of the facts contained therein, since even the indictment upon which he was 170 LIBERIAN LAW REPORTS then on trial alleged and contained the same facts. The indictment having charged the defendant with the essential facts constituting the crime, it follows that the defendant had been given sufficient notice of the facts contained in the aforesaid report. Consequently, it is our opinion that the trial court did not err in overruling defendant’s objection to the proposed question, especially since the credibility of such a document was within the sole discretion of the jury and not of the trial court. The notice referred to in appellant’s objection must be regarded as notice in pais, which can be claimed as of right only when the knowledge thereof which the party seeks is completely outside the record or writing. In this case, the indictment had charged the defendant with sufficient certainty to specify the crime according to the statute laws of the land ; or, if not, defendant should have moved for the quashal thereof; and his omission so to move could not have been rectified by his objection. Therefore, Count i is not sustained. Count 2 of the bill of exceptions reads as follows : “And also because defendant put the following question to witness Frank Stewart on cross-examination : ” ‘Mr. Witness, who was the responsible person who collected funds that accrued to the Consulate General at Hamburg, Germany?’ “To this question, the prosecution objected on the ground that the answer would not constitute the best evidence; to which Your Honor entered a ruling sustaining the said objection. Defendant contends that, this question being relevant and material to the case, and the witness being familiar with the procedure regarding collection of funds at the Consulate General at Hamburg, he being the inspector of said Mission, and said question being based on the answer immediately previous to it, the witness should have been allowed to answer.” Under our law, a witness is required to testify or depose LIBERIAN LAW REPORTS 171 to such facts only as are within his own knowledge and recollection. He is not permitted to testify as to his opinion except in cases involving questions of science or of some peculiar knowledge which he may possess. The witness then on the stand was neither an employee of the Consulate General at Hamburg, nor had he been intrusted with the control of the affairs of the said consulate; hence, it would have been error for the trial court to overrule the objection to the question. Count 2 is therefore not sustained. Count 3 being grounded on the same theory as Count 2, we find it unnecessary to review Count 3 separately, since our reasoning with respect to Count 2 must likewise apply to Count 3. Count 4 reads as follows : “And also because the prosecution on direct examination propounded the following question to witness J. Rudolph Grimes : ” `Mr. Witness, please say, if you can, whether, after said report was submitted to you, you ever communicated with defendant Swaray with respect to the conclusion of said report referrable to the shortage; and if so, please state, for the benefit of this court and jury, whether he made a reply; and if so, please state the contents thereof.’ “To this question, counsel for defendant interposed the following objections : i. Not the best evidence as regards the latter part of the question ; “2. Irrelevant and immaterial. “To these objections, Your Honor made this ruling: ” ‘In all criminal cases, all facts and circumstances surrounding the cause must be put before the jury who are the sole judges of the facts. In the mind of the court, the best evidence rule will not apply; and therefore the objection is overruled.’ ” Since the fact that the witness had corresponded with ” 172 LIBERIAN LAW REPORTS the defendant could have no bearing on the defendant’s guilt or innocence of the crime of embezzlement, the trial court should have sustained the objection made to the question. Count 5 of the bill of exceptions shows that appellant excepted to the ruling of the trial court below on his objections to the admission of a document marked Exhibit P-1 by the court. This document was the report of the inspector, showing the shortage of the defendant in his accounts with the Government whilst employed as Consul General at Hambury. It is the document upon which the indictment was founded, and was identified by witness Frank Stewart. Confirmation of identification was made by witness Rudolph Grimes. The figures of DM 121,766.73, or $28,992.07, produced on its face as the shortage, are the same figures laid in the indictment. Hence, as far as our inspection of the records shows, there is no variance between the indictment and this document. A variance arises only when there is a substantial departure in the evidence adduced as to some fact which, in point of law, is essential to proof of the charge or claim. Any such departure constitutes a variance and is fatal. In this case, however, there is no difference whatever between the amount laid in the indictment and the document sought to be put into evidence; therefore, in our opinion, no variance existed, and the trial court did not err on this point. Coming, now, to the objection on the ground of notice : our Constitution provides that every person criminally charged shall be seasonably furnished with a copy of the charge against him. This is fundamental. The defendant was furnished with a copy of the indictment on which he is charged. The indictment states the charge with sufficient certainty. “An indictment which informs the accused of the time, place, circumstances and conditions of committing the unlawful act therein alleged, and that the act LIBERIAN LAW REPORTS 173 complained of is contrary to law, is generally a sufficient charge against him, especially if stated with sufficient certainty to enable him thereafter to plead autrefois convict or autrefois acquit.” Seton v. Republic, [1935] LRSC 2; 4 L.L.R. 238 (1935), Syllabus 2. On the issue of sufficient notice : “It is not necessary to serve the opposite party with a copy of a writing or give him an opportunity to inspect it before the trial. But he must be permitted to inspect it before it is admitted.” 38 CYC. 1337 Trial. Application of the law quoted supra to the present case leads to the conclusion that Count 5 of the bill of exceptions cannot be sustained. Count 6 reads as follows: “And also because defendant moved the court to dismiss the case because the prosecution had failed to make a prima facie case against him, to which motion the prosecution made resistance to the effect that it had made a prima facie case against the defendant, and that the citation of Massaquoi v. Republic, [1933] LRSC 10; 3 L.L.R. 411 (1933), relied upon by defendant has been overruled by Seton v. Republic, [1935] LRSC 2; 4 L.L.R. 238 (1935) Your Honor denied this application of the defendant, to which ruling the defendant then and there excepted.” Our law does not compel a defendant in a criminal case to give evidence against himself; nor, if he elects to take the witness stand, does the law require him to answer questions which would have a tendency to incriminate him. But the law does give him the right to have witnesses depose in his behalf to disprove any evidence made against him by the adverse side. The prosecution had put on the stand two witnesses who testified in support of the charge made against the defendant; and let us not forget that their testimony was unchallenged and uncontradicted. Moreover, the statement showing the 174 LIBERIAN LAW REPORTS deficit of the defendant in his accounts had also been admitted to form a part of the evidence. All these were important links in the chain of evidence made against him; yet for no conceivable reason, he demurred and requested a directed verdict discharging him from further answering. In a decision referred to in Count 6 of the bill of exceptions, Mr. Justice Dixon, speaking for this Court, said : “When one to whom money or other property is entrusted for safekeeping or into whose possession should come money or other property in the course of his duty, and who, when demand is made for his delivery of same to the owner thereof, fails to show a legitimate disposition of it or any portion thereof, he is guilty of embezzlement under our statute. Therefore the defendant Martin H. Seton, now appellant, having acknowledged and accepted the deficit in his account in the sum of eight hundred forty-six dollars and seventy-one cents, and having failed to establish his innocence as to the conversion of said amount to his personal use nor his having disposed of same in accordance with the rules and regulations of his institution, that is the Customs Service of Liberia, this Court is of the opinion that the charge of embezzlement as instituted in these proceedings has been substantially proven; and insofar as the opinions in the cases Massaquoi v. Republic, 3 L.L.R. 4r 1 (1933 ) and Sancea v. Republic, [1932] LRSC 10; 3 L.L.R. 347 (1932), actually relied on or others of similar import are in conflict with the views herein, they should be recalled. . . .” Seton v. Republic, [1935] LRSC 2; 4 L.L.R. 238, 249-250 ( I935). From the foregoing, it is clear that the decision of this Court relied upon by the appellant can no longer be regarded as the law. After defendant’s application to the trial court for a directed verdict had failed, he still had the right to introduce witnesses to rebut the evidence LIBERIAN LAW REPORTS 175 adduced against him. His failure to do so, or to take the witness stand to testify on his own behalf, speaks louder, under the circumstances, than his opinion of the nonconclusiveness of the evidence of the prosecution. We turn to the testimony of witnesses Frank Stewart and Rudolph Grimes. When Frank Stewart was on the witness stand, he was asked: “Q. Say whether or not the defendant, Mr. Swaray, after the shortage of his accounts was brought home to him, made any accountability therefor. “A. To the best of my knowledge, Mr. Swaray has not accounted for the shortage of $28,992.07.” In the same witnesses’s statement in chief, he said: “I subsequently spoke on the phone with the former consul general, and informed him of what Mr. Sarragossa had told me. I assured him, however, that I would myself come to Hamburg to review the situation, and thus verify the figures, which Mr. Sarragossa had figured. I went to Hamburg and found, as the basic report shows, that there had been, on the basis of the facts available to me, a slight error in the computation, or in the addition. The basic report reflected this error which we corrected. Then, on the basis of the facts available to me as chairman of the commission, I addressed a letter to Mr. Swaray, setting forth the figures which I had, together with what Mr. Swaray agreed upon. Then, on the basis of this letter, Mr. Swaray wrote me to explain that, although this discrepancy had been found, he was at a loss to know how it came about.” Answering a question on cross-examination, the same witness stated: “I confirm emphatically that, when I presented or confronted defendant Swaray with the shortage as mentioned, he emphasized that he did not know how the shortage came about; but he did not, there in Hamburg, or at any time during our conference, 176 LIBERIAN LAW REPORTS challenge the correctness of the figures ; for the inspection commission would not have left Hamburg until this doubt had been cleared.” There were other questions asked, and their answers returned, which do have a tendency to connect the defendant below, now appellant, with the crime for which he is charged ; and yet, despite such strong evidence, he elected to demur to all such important links in the chain, and did not contradict them in any way. Such questions and answers included the following on direct examination of witness Frank Stewart: “Q. Mr. Witness, the transfer account referred to by you, is it kept in the consulate or at the bank? “A. The transfer account is a bank account that was operated by the consulate. “Q. And I presume that monies are withdrawn from said account only by means of checks ; not so? “A. That is correct. “Q. From your various answers in connection with the transfer account, do you give the court and jury to understand that, in your audits of same, you did so on amounts deposited and amounts withdrawn by checks; not so? “A. No, the shortage was determined on the basis of fees collected and recorded in a book of the consulate, as against fees deposited in the accounts entitled : ‘The Republic of Liberia,’ giving credit for the balance in the transfer account on the date of the audit.” On cross-examination, witness Rudolph Grimes was questioned and answered as follows: “Q. If you know, please tell the court and jury what was the system in vogue for the collections and deposits of consular fees at the Hamburg consulate during the tenure of office of defendant J. Henry Swaray. “A. I explained, earlier, that Mr. Swaray submitted LIBERIAN LAW REPORTS 177 observations on the deficit of the consulate when it was brought to his attention. I also stated that the State Department considered those observations unconvincing. In those explanations, Mr. Swaray sought to exclude himself on the basis of the collection system at the consulate. However, the report clearly shows that there was no shortage in the collection and deposits of funds in the transfer accounts, which accounts were only operated by Mr. Swaray. The deficit occurred in the transfer of funds from the transfer account which, as I have stated, was operated only by Mr. Swaray, to the Government’s account. Under this circumstance, there was no need to investigate the collection system; and that is why, as I mentioned earlier, the Department considered Mr. Swaray’s explanation unconvincing.” Such evidence, to any ordinary reasoning mind, would carry a logical conclusion that the defendant had been connected with the crime of embezzlement. We have made the above-quoted questions and answers a part of this opinion so that they will convey the quality of evidence the prosecution produced in proof of the charge of embezzlement brought against the defendant, in spite of which, the defendant, now appellant, claimed that the prosecution failed to make a prima facie case against him ; and we will now quote the following: “Prima facie evidence is that which, either alone or aided by other facts presumed from those established by the evidence, shows the existence of the fact it is adduced to prove, unless overcome by counter evidence; evidence which, unexplained or uncontradicted, is sufficient to maintain the proposition affirmed. Prima facie evidence is sufficient to support a verdict in favor of the party by whom it is introduced where no contraverting evidence is introduced by the adverse party. . . .” 23 C. J. 9 Evidence � 1735. 178 LIBERIAN LAW REPORTS By the foregoing quotation, we have endeavored to show the nature of prima facie evidence. Under the circumstances revealed by the records in this case, the uncontradicted evidence of the prosecution must weigh very heavily against the defendant. Therefore, Count 6 of the bill of exceptions is hereby dismissed. In Count 7 of the bill of exceptions, appellant alleges that counsel for the prosecution used improper language which had a tendency to inflame the minds of the jury during the trial in the court below. The words used, and the manner in which they were employed, are not shown by the records before us ; but in oral argument before this bar, it was stated that the words used were : “If the defendant was in Russia, he would be shot down for the commission of the crime.” In our opinion, such words would have no effect on the minds of the empanelled jury because they could understand that the defendant was not on trial under Russian law. Hence, they must be calculated to be words spoken without effect. And because the records show that the trial judge admonished the counsellor against a repetition, we observe no harm in the use of such words spoken, and no prejudice against the legal interest of the defendant. Count 7, therefore, is also dismissed. Counts 8, 9, io and it are grounded on exceptions taken against the trial court’s charge to the jury empanelled to try the case; to the verdict of the jury declaring defendant guilty of the crime of embezzlement; to the ruling of the trial court on defendant’s motion for new trial ; and to the judgment sentencing the defendant. All these issues are merely procedural, and require no comments by this Court. We have taken the care and interest to expatiate upon all of the issues involved in this case as far as it was necessary for us to do so ; and we have also cited the law controlling; but before concluding this opinion, we will turn our attention to the point raised by the appellant’s counsel LIBERIAN LAW REPORTS 179 in oral argument before us, to the effect that the defendant should have been furnished with a copy of a bill of particulars in order to afford him sufficient notice of what the prosecution intended to prove against him. Our Criminal Procedure Law provides that a bill of particulars must accompany the indictment at the time of arraignment. And granting the statute to be mandatory, yet the prosecution’s failure to comply therewith would call for a plea in abatement by a motion to quash. Apellant’s failure to make such a motion at the proper time constituted a waiver according to the same Criminal Procedure Law, which provides as follows: “Defenses and objections based on defects in the institution of the prosecution or in the indictment or information other than that it fails to show jurisdiction in the Court or to charge an offense may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver.” 1956 Code, tit. 8, � 184. In this case, there was no cause shown why the defendant failed to avail himself at the proper time of the right which he claimed ; and hence, under the statute quoted above, the question could not properly be raised after defendant had been arraigned, issue joined and trial begun. The next question that confronts us is whether an indictment for the crime of embezzlement, embracing all of the legal elements and requirements of the law, and a copy of which was duly served on the defendant, must necessarily be accompanied by a bill of particulars. The law requires that, in an indictment charging embezzlement, the crime must be described and set forth with sufficient particularity. The ownership and felonious conversion of the property must be sufficiently averred. The fiduciary relationship must be laid with certainty, in 180 LIBERIAN LAW REPORTS order that the party accused may know the general nature of the crime of which he is accused, and that the crime may be easily understood by the jury, and that the indictment may be pleaded in bar of another prosecution for the same offense. When these necessary requirements are fully met, and the defendant is furnished with a copy of the indictment on which he is charged, it is our opinion that a bill of particulars is not essential as a separate and distinct part of the charge. In conclusion, it is our opinion that, the trial below being regular, and the judgment being founded upon sound principles of law, the same should not be disturbed. The judgment of the court below is therefore affirmed. And it is hereby so ordered. Affirmed.