ELIAS HARGE, Appellant, v. REPUBLIC OF LIBERIA, Appellee. WALTER SCHAEFETILE, Appellant, v. REPUBLIC OF LIBERIA, Appellee.

APPEALS FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, MONTSERRADO COUNTY. Argued November 9, 1960. Decided December 16, 1960. 1. Any sentence pronounced against an accused, which can be shown to have grown out of a trial not in harmony with procedure of our criminal courts, and which infringes the legal or constitutional rights of a defendant, cannot be taken as being the result of a fair and impartial trial. 2. The rights of defendants to be tried in all criminal cases in the circuit courts upon indictments of the grand jury, and by a petty jury of the vicinity, are constitutional rights, and should not be denied a defendant. 3. In filiation proceedings where paternity has been denied, the constitutional requirement of due process is not satisfied by judgment against the defendant in the absence of testimony by the private prosecutrix, or a medical test, or other convincing evidence. In two separate filiation proceedings, the Supreme Court, on appeal, reversed the judgments rendered against the defendants by the court below. Lawrence A. Morgan for appellants. Assistant Attorney General Francis Gardinerfor appellee. MR. Court. JUSTICE PIERRE delivered the opinion of the In two separate cases of bastardy, Elias Harge and Walter Schaefetile were taken before the Magisterial Court in Monrovia, on the complaints of Jemima Coleman and Sarah Coleman, respectively. Each of these men was charged with having refused to support and maintain infant children alleged to have been born to them of the bodies of the two women named hereinabove ; 218 LIBERIAN LAW REPORTS and the complaints in both cases also allege that it was feared the neglect of these children by their putative fathers would result in their becoming charges upon the public. The accused were put under bond, and their cases were forwarded to the Circuit Court of the First Judicial Circuit, Criminal Assizes, Montserrado County. At the call of the cases representation of the parties was announced, the County Attorney representing the State, and Counsellor Lawrence Morgan representing the defendants. The record does not show that any charges were read to the defendants, or that they were ever furnished with copies thereof, as is the procedure in criminal trials in the circuit court, and also as is the constitutional right of every defendant charged with crime ; but instead, the following memorandum was made immediately after the announcement of representation : “At this stage the court requires the defendants to enter pleas by way of joining issue with the prosecution, so as to place the court in a position to summarily investigate the complaints filed against them.” We do not recognize this procedure as being authorized in the trial of criminal cases which originate in the circuit court; nor is it an accepted practice, for the circuit court to handle matters on appeal from the magisterial court. In the first case the defendants, after having been indicted, should have been arraigned at the trial, and the indictments read to them; and at that stage it would have been incumbent upon them to enter a plea of Guilty or Not Guilty, or not to have entered a plea at all, in which latter case the court would have been empowered to enter a plea of Not Guilty for them. In the second case, where the defendants had appealed from a judgment in the Magisterial Court, the appeal would have been heard on the strength of the record entered on the back of the writ. But in neither case does it seem to be regular for the judge LIBERIAN LAW REPORTS 219 to have requested the defendants to join issue with the State without having allowed them to use their own minds as to what pleas they would enter, and without having furnished them copies of the charges against them. (Constitution of Liberia, Art. I, Section 7th.) It would appear that, at this stage the defendants filed motions for the court to vacate the proceedings on the ground that the procedure adopted deprived them of due process to which they were entitled in a criminal trial. Of course the record shows that the court denied the motions and commenced hearings of the cases ; and what appears to be also strange, the defendants’ request to be tried by jury was also denied. Witnesses testified on both sides, and the judge then entered judgments, to which the defendants excepted and have appealed their cases for final review. The bills of exceptions filed in the two cases alleged substantially as follows : I. That the judge denied the motions to vacate the proceedings, which he should not have done. 2. That the judge denied the defendants’ requests to be tried by jury, which was their right in a criminal trial in the circuit court. 3. That the judge was without legal authority to introduce a procedure not authorized by rule or by statute in the hearing and determination of bastardy cases. 4. That in the case of defendant Harge, the private prosecutrix, who was present in court, and whose testimony was the best evidence in such a case, neglected to take the stand to testify to the defendant’s responsibility for the birth of her bastard child ; yet the judge rendered judgment against him. 5. That in the case of defendant Schaefetile, although he testified to not being responsible for the birth of the bastard child, and claimed that the private 220 LIBERIAN LAW REPORTS prosecutrix had engaged in illicit intercourse with other men at the time she was having intercourse with him, and that because of this, there was doubt in his mind, and he had therefore demanded a medical test to establish his responsibility as father of the child ; and that even though the test was never had, the judge had rendered judgment against him. Our bastardy statute has come down to us from as far back as the colonial days of 1838; and the subsequent statutes of 1843, 1856 and 1879, together with the Revised Statutes, have more or less recited almost word for word the text of this early statute. The statute on bastardy now in effect reads as follows : “Illegitimate children: filiation proceedings.–The justice of the peace or magistrate in any place where an illegitimate child has been born or resides, which child is or is likely to become a public charge, shall summon the mother of such child to swear as to its parentage; or any woman who has borne an illegitimate child, whether or not it is likely to become a public charge, may voluntarily appear before a justice or magistrate to swear as to the parentage of the child. In either case the justice or magistrate shall question the mother as to the parentage of the child ; and if she charges in writing that a certain man is the father, the justice or magistrate shall issue a warrant to apprehend and bring such person before him or any other justice or stipendiary magistrate. The justice or magistrate before whom such man is brought shall commit him to jail unless he furnishes satisfactory security in a sum of not less than fifty dollars that he will appear at the Quarterly Session of the Circuit Court. “If the Circuit Court adjudges that the man so charged is the father and, in a case initiated by action of a justice or magistrate, that the child is or is likely to become a public charge, it may provide for the LIBERIAN LAW REPORTS 221 maintenance of the child by requiring the father to pay not less than one dollar a week, payable monthly to the ministerial officer of the Court, as long as the child is likely to be a public charge. In a case initiated by the complaint of the mother the Circuit Court may, if it adjudges that the man so charged is the father, provide for the maintenance of the child in the same manner as prescribed in the first sentence of this paragraph until the child attains his majority or becomes independent of parental support. In either case the Court shall order the father to deposit with it security for his compliance with its order. If the father fails or refuses for a period of six months to pay the maintenance money as required by the Court’s order, the Court shall give judgment for the arrears, and the sheriff may levy execution against the nonexempt property of the father or his executors or administrators.” 1956 Code, tit. to, � 66. Viewed from the standpoint of the defendants, now appellants, the significant point in the text of this statute is the absence of any provision for a magistrate or justice of the peace to hear and determine bastardy cases. These cases have in the past, in many localities, been heard and determined as petty offenses. According to the statute quoted above, which is the controlling statute herein, courts of first instance may only apprehend the putative father and bind him over to the court of quarter sessions to be sentenced by the circuit court judge. The statute does not even provide for a trial. This would seem to place the offense outside the category of those offenses which can be heard and determined by courts of first instance; but the statute does not give these petty courts the right to even examine the matters. As in other petty offenses, they are merely empowered to arrest and bind the father over to the circuit court. It should follow, therefore, that if these cases are not petty offenses, but belong to the trial jurisdiction of the 222 LIBERIAN LAW REPORTS circuit court, then they should have originated before the grand jury, and be determinable by the verdict of a petty jury, as all other indictable misdemeanors are. But again the statute has not provided for this ; and therefore the circuit court would be without legal authority to introduce a procedure in such cases where there is no rule, and the statute has made no provision as to how these cases shall be tried. It is therefore clear that there is no statute which legalizes any definite manner in which bastardy cases can be heard and determined in the circuit court; nor is there any statute which authorizes the magistrate or justice of the peace to take any steps in such cases, beyond apprehending the putative father and binding him over for appearance before a circuit judge. It seems to us, then, to be of urgent necessity, that the Legislature provide some measure to fill this legal need. Any sentence pronounced against an accused which can be shown to have grown out of a trial not in harmony with procedure in our criminal courts, and which infringes the legal and/or constitutional rights of a defendant, could not be taken as being the result of a fair and impartial trial. The rights of a defendant to be tried in all criminal cases in the circuit court upon the charge of the grand jury and by a jury of the vicinity are constitutional rights and should not be denied a defendant. The appellants’ requests to have been tried by jury were requests within their constitutional rights ; and the fact that the court was without statutory authority to have granted the same should not have deprived them of their enjoyment of such rights. Another constitutional right to which the appellants were entitled, and which was denied them, is the right to have been tried by due process in law. Under this right, every opportunity should have been given the accused to prove their innocence. We think it was error, therefore, for the private prosecutrix to have failed to take the stand and testify to the charge she had made against the de- LIBERIAN LAW REPORTS 223 fendants in the magisterial court. In fact, in such a case there could be no other witness who could have given any testimony of a quality capable of legally convicting the defendant; especially in face of his denial of the charge she had made against him. “The best evidence which the case admits of must always be produced ; that is, no evidence is sufficient which supposes the existence of better evidence.” 1956 Code, tit. 6, � 685. Then there is the case of the other defendant, who asked for a medical test to be made in order to remove all doubt from his mind as to his responsibility for the child’s birth, due to the promiscuous philadering behavior of the private prosecutrix. In the first case, the failure of the private prosecutrix to take the stand and testify in support of her charge deprived the defendant of his right to cross-examine her on the charge she had made against him ; and in the second case, the court’s failure to order medical tests to determine the rightful father of the child deprived the defendant of his right to have evidence in his favor under compulsory process. It is therefore our opinion that judgments should not have been rendered against these defendants under such circumstances. Because no judgment which is shown to be based upon such unauthorized procedure as was adopted by the trial court, and which so flagrantly violates constitutional rights of appellants, can be upheld by this Court, we hereby reverse the judgments in these cases. Reversed.