MOSES YANCY, Appellant, v. REPUBLIC OF LIBERIA, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued March 20, 1968. Decided June 14, 1968. 1. An indictment should be a concise statement of the essential facts constituting the crime charged, which informs the defendant of the time, place, and circumstances in which the crime charged occurred, with sufficient clarity so that the defendant is capable of raising the defense, if applicable, of double jeopardy. 2. Declarations of parties made in regard to business matters, if contemporaneous with the acts they tend to explain and qualify, are admissible in evidence as parts of the res gestae. 3. Documents are sufficiently identified in an indictment when a bill of particulars is not required to explain them, and cannot be objected to when introduced at the trial on the ground of failure of notice. 4. It is proper to cross-examine a witness on all matters relating to the cause, or tending to discredit his testimony. 5. In order to validly constitute a defense, an alibi must be established sufficiently so as to have raised in the minds of the jurors a reasonable doubt of the defendant’s guilt. The defendant was charged with automobile theft, indicted, tried, and found guilty by a jury. His appeal is from the judgment of the court affirming the verdict. The judgment was affirmed.’ Michael Johnson for appellant. Solicitor General Nelson W. Broderick and G. P. Conger Thompson for appellee. MR. JUSTICE MITCHELL delivered the opinion of the court. The record on appeal in this case shows that one Moses Yancy, of Kakata, Montserrado County, was indicted by the grand jury, at the November 1963 Term, of the Circuit Court of the First Judicial Circuit for the crime of grand larceny. 63 64 LIBERIAN LAW REPORTS In this indictment, the defendant is charged with willfully, wrongfully, maliciously, and feloniously stealing and carrying away on August 2, 1963, one Opel car of the value of $550.00, which was parked on the highway in the Township of Paynesville, the car being the property of one John Morris, with intent to deprive the said rightful owner of the car. On December 13, 1965, this case was called for hearing. The defendant having filed a motion to quash the indictment, the motion was first heard. In this motion it is alleged that the indictment is insufficient on its face, in that it does not aver : (a) the model of the car, (b) the year it was manufactured, (c) the number of its license plate, (d) whether private, official, or taxi cab, (e) serial no., chassis no., or engine no., (f) number of wheels and types, (g) invoice, bill of sale, or vendor’s certificate, (h) certificate or vehicle registration, (i) particular spot from which the car was taken in Paynesville. This motion was heard, denied, and the court proceeded with the trial. Evidence having been introduced, the case was argued and submitted, and the jury returned a verdict of guilt against the defendant, to which exceptions were taken, a motion for a new trial filed, heard, and also denied, and an appeal announced, granted, and prosecuted. Thus the case came before this appellate court for a final review. When this case was reached on our trial docket, it was assigned, and called for hearing on March 19, current. Before making any mention now of the bill of exceptions, we feel it necessary to make a passing comment: that it seems quite strange that the defendant throughout the trial in the court below attempted to prove an alibi under his plea of not guilty, yet failed to make this a ground for appeal in his bill of exceptions, but advanced this as his main point of argument before this Court. Nonetheless, he was permitted to argue the point, which we shall treat later in this opinion. LIBERIAN LAW REPORTS 65 The bill of exceptions upon which this appeal has been brought for review by this Court consists of seven counts, of which we accept for consideration counts I, 3, and 5. “r. Because defendant avers that the court on Monday, the 13th, sustained the opposition of the prosecution to his motion dated and filed December 9th, the sustaining of which really worked hardship on defendant and in this light the court did err, to which defendant excepted, in vain.” We get the impression that this count of the bill refers to the motion filed in the court below to quash the indictment, and we feel certain that our conclusion is correct according to the record before us. The form of an indictment is provided for: “The indictment shall be a plain, concise and definite statement of the essential facts constituting the offense charged. It shall contain a formal commencement, a formal conclusion and any other matter necessary to an indictment.” Criminal Procedure Law, 1956 Code 8 :140 (in part). Besides the foregoing, in Seton v. Republic of Liberia, [1935] LRSC 2; 4 L.L.R. 238 (1935), the Court held that an indictment which informs the accused of the time, place, circumstances, and conditions of committing the unlawful act therein alleged, and that the act 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. Under the foregoing, this Court is of the opinion that the trial judge had no alternative but to dismiss appellant’s motion to quash the indictment, because the crime and its necessary elements had been fully described in the indictment on which the defendant stood charged. Count of the bill is, therefore, not sustained. “3. And also because defendant further avers that the court admitted into evidence documents marked by the court over his objections, especially on the 66 LIBERIAN LAW REPORTS ground of notice, which was improper, prejudicial and erroneous.” Surprisingly, these are documents attacked in this count of the bill which the defendant in his motion to quash had claimed to be grounds for quashing, yet, when presented through the proper party who testified on oath and offered into evidence by the prosecution, defense objected to their admission on the grounds of notice. In this connection, it is our opinion that sufficient notice had been given the defendant below when he was served with a copy of the indictment and was informed of the crime of which he was charged, which obviously did not require a bill of particulars. Hence, the trial judge did not err when he admitted said documents into evidence. As to their general admissibility, 20 AM. JUR., Evidence, � 68o, states : “Declarations of the parties made with regard to matters of business, if contemporaneous with the acts they tend to explain and qualify, are admissible as parts of the res gestae. . . .” Count 5 of the bill alleges : “And also because your Hon. did overrule his objections to incriminating questions put to him.” Since the foregoing count refers to incriminating questions which the law does not permit to be proposed to persons criminally charged and on trial, we regard it as very important, and turn to the record in the case to convince ourselves of the truthfulness or falsity of the aforesaid count 5. Our examination of the record verifies that, on sheet 9 of the 34th day’s sitting of the court, January 5, 1966, the following question was proposed to Jacob Diggs, one of the defendant’s witnesses, on crossexamination : ((Q. On the afternoon of the znd of August, at the hour of 2 o’clock, at Division 17, a Mr. Cooper, superintendent working at Harbel, saw Mr. Moses Yancy and another mechanic who posed LIBERIAN LAW REPORTS 67 himself as owner of the blue Opel car, the subject of this case ; might we presume that as foreman of Mr. Yancy’s garage and a mechanic associating with him, you were the person?” To this question defendant’s counsel interposed objection on the ground of “incriminating,” and the court overruled his objection. It is provided in our Civil Procedure Law, 1956 Code 6 :765 : (I leading questions, that is, such as indicate what answer is desired, shall not be asked on direct examination, but they may be asked on cross-examination. Except as otherwise provided by law, a witness may be cross-examined as to all matters touching the cause or likely to discredit him; but he shall not be asked irrelevant or hypothetical questions for the mere purpose of entrapping him.” We cannot forget that, on cross-examination as a witness to corroborate the defendant’s testimony, he was subject to having his motives and inclinations well tested. He had already testified to the fact that he was employed in the defendant’s garage in Kakata as a mechanic, and also as his foreman. Besides that, he had already testified to the fact that on August 2, 1964, the defendant, in company with one Garnette and one Mary, left Kakata for Nimba County. Consequently, it is our opinion that the trial judge did not err in overruling defendant’s objection to the question. Hence, count 5 is not sustained, because the question was not incriminating. Now, coming to the point of the alibi which defendant’s counsel so strongly argued before this Court, we will first give our attention to the record in the case to determine how far this was established at the trial below. The defendant when on the witness stand said, among other things, that he was at Nimba and Tchien on August 2, 1963, where he remained for two days, and returned to Kakata on the third day. That he left his home in . . . 68 LIBERIAN LAW REPORTS Kakata about 8 o’clock in the morning, in company with Mary Watson and Samuel Garnette. That he stayed in Nimba two days and returned to Kakata the second day. Again, he said that he did not return to Kakata until the night of August 5, which rounded his stay to four days instead of two. Defendant’s witness, Jacob Diggs, testified to the fact that the defendant left Kakata for Nimba where he remained for two days and that he left in the afternoon of August 2, 1963. His witness, Earnest Garnette, testified to the fact that the defendant left Kakata in company with Mary Watson and Garnette on August 1, 1963, instead of August 2, according to the defendant, and he also said that he left at the hour of II :Is in the morning. On one occasion, the witness said that they slept at Tappita on the night of August 2, and with just two or three questions intervening, he again said that they slept at Sanniquelle on the night of August 2. “Many courts on the other hand take the view that the `burden of proof’ of an alibi is upon the defendant. A study and comparison of these cases, however, leads to the conclusion that for the most part the courts laying down this rule mean only that it is the duty of the defendant to go forward with the evidence respecting an alibi if he relies upon this defense, so as to raise at least a reasonable doubt of his presence at the time and place of the commission of the alleged crime. . . . It is sufficient if the defendant raises a reasonable doubt as to the truth of the charges against him, although there is authority requiring a greater quantum of certainty in this respect.” 20 AM. JUR., Evidence, �154. The law requires the prosecution to prove the guilt of the defendant beyond a reasonable doubt, and this in our opinion was well established by the testimony of John Morris, Joseph Bondo, Charles Cooper, and Thomas Bernard, and left no link open in the chain of evidence connecting the defendant with the crime charged, beyond a LIBERIAN LAW REPORTS 69 reasonable doubt. This made it incumbent upon the defendant in his plea of an alibi to create a doubt in the minds of the jurors, and his failure, in every respect, to have witnesses corroborate his testimony renders his defense unmeritorious. In Teh v. Republic of Liberia, io L.L.R. 234 0949), the Court said that a defendant is not required to prove the defense of alibi beyond a reasonable doubt. But, in the body of the opinion, Mr. Justice Shannon said, at p. 239: “It does not require any effort to say that the evidence of Kamal Wahhab, taken together with that of Fuweh Teh, Margaret Thomas, Punella McCarthy and GoeWee, has been strong in tending to prove that he, the said Kamal Wahhab, was not on the premises when the private prosecutor and Wenneh Jar visited the Wahhab Brothers store, but rather was at another Syrian’s place drinking coffee in company with the said Syrian, Joseph Wahhab, his brothers, and Mesdames Margaret Thomas and Punella McCarthy.” This is not the case at bar, where the trial was regular and the evidence for the prosecution conclusive. Defendant failed to prove an alibi in some form or manner that would raise in the minds of the jurors a doubt of his connection with the crime. Under the circumstances, therefore, we do hereby affirm the judgment of the lower court and the clerk of this Court is hereby ordered to send a mandate to the lower court informing it of this judgment. And it is hereby so ordered. ii trm ed..