T. Y. LARMOUTH, Appellant, v. REPUBLIC OF LIBERIA, Appellee.

APPEAL FROM THE PROVISIONAL MONTHLY AND PROBATE COURT, TERRITORY OF MARSHALL. Argued October 28, 1959. Decided January 14, 1960. 1. A Stipendiary Magistrate has jurisdiction of a prosecution for assault and battery where the fine is not more than one hundred dollars. 2. Where a court has exhausted all means at its disposal to procure the attendance of a witness, a motion for continuance on account of the absence of that witness may properly be denied. On appeal from a judgment affirming conviction by a Stipendiary Magistrate for the offense of assault and battery, judgment affirmed. J. C. N. Howard for appellant. Assistant Attorney General J. Dossen Richards for appellee. MR. Court. JUSTICE HARRIS delivered the opinion of the It is observed from the records certified in this case from the court below that, on the night of April 26, 1956, one Richard Kardor and one Clara Ballah visited the home of the private prosecutor, Samuel Z. Botoe. Whilst engaged in a conversation, Richard Kardor was called aside by a friend, and just. as he left the room, the instant appellant, Timothy Y. Larmouth, entered the house of the private prosecutor, and met Clara Ballah therein, and questioned her as to her reason for being at the home of the private prosecutor at that time of the night. The said Clara Ballah was supposed to have been the girl friend of the appellant. According to the testimony of Clara Ballah, the appellant said to the private prosecutor : “People have been telling me that you and my girl friend are lov- 494 LIBERIAN LAW REPORTS ing.” Then and there the appellant began beating the private prosecutor in his own house. The Stipendiary Magistrate for the Territory of Marshall, upon complaint made, issued a writ and had the defendant arrested, tried and convicted for the offense of assault and battery. From this judgment the defendant appealed to the Provisional Monthly and Probate Court, Territory of Marshall, which affirmed the said conviction and fined the appellant the sum of $ ; which judgment was appealed to this Court of last resort upon a bill of exceptions containing five counts. Count “1” of the bill of exceptions attacked the jurisdiction of the trial court over the subject matter of assault and battery. This point was raised in the court below in a motion to dismiss for want of jurisdiction over the subject matter, which motion the court below denied. This Court is of the opinion that the court below ruled correctly in denying the motion to dismiss for want of jurisdiction, since the Act of 1948-49 does give the Stipendiary Magistrate jurisdiction over assault and battery where the fine is not more than $ roo. Count “r” of the bill of exceptions is therefore not sustained. Count “z” of the bill of exceptions alleges that, during the trial of the case, the attorney for defendant-appellant put the following question to witness for the prosecution, Richard Kardor : “You said that you were present at the Tribal Chief’s Court when an officer brought Mr. Larmouth and Mr. Gbotoe to the court; can you say what took place there?” To this question, plaintiff-appellee’s attorney objected on the ground of irrelevancy. The court sustained the objection. We are of the opinion that the court ruled correctly, because whatever might have taken place in the Tribal Chief’s Court did not tend to prove or disprove what took place on the scene where the offense was committed. Count “2” of the bill of exceptions is therefore also not sustained. Count “3” of the bill of exceptions alleges that the court LIBERIAN LAW REPORTS 495 denied the appellant’s motion for continuance on account of the absence of material witnesses. From the records certified to this Court it is revealed that the court did grant a continuance of the case on August 13, 1957, which motion the Territorial Attorney did not even resist. The court also granted a second continuance of the cause by reason of the fact that the witnesses could not be found anywhere on the Firestone Plantations, Montserrado County, which place was alleged by defendant-appellant’s counsel as where the witnesses resided ; and that they had changed domicile to the Bomi Hills. The court thereupon ordered the sheriff to go up to the Bomi Hills, and make a thorough search for the said witnesses. The returns of the sheriff show he made such a search but could not locate the witnesses, whereupon the court proceeded with the case. The court, having exhausted all legal means at its disposal to obtain the said witnesses, was justified in proceeding with the case. Count “3” of the bill of exceptions is therefore not sustained. The above ruling also applies to Count “4” of the bill of exceptions which is also not sustained. Count “5” of the bill of exceptions excepts to the final judgment of court. Nowhere in the bill of exceptions does the appellant allege that the judgment is against the weight of evidence adduced at the trial. We shall now proceed to examine the evidence and see whether the judgment based thereupon is founded in law. The private prosecutor, Samuel Z. Gbotoe, testified as follows : “On the night of April 26, 1956, at about seven o’clock, Richard Kardor and Miss Clara Ballah came to my room for a visit. After few minutes, a boy came and called Richard Kardor. As soon as Richard Kardor’s back was turned, Mr. T. Y. Larmouth entered my room with a pistol from his coat and held it in his hand. Then he asked : ‘Miss Clara, what brought you in this room?’ and then he turned to me and said : ‘Mr. Samuel Gbotoe, what are you doing here with my 496 LIBERIAN LAW REPORTS girl?’ He asked twice. And I answered and said : `She and Mr. Richard Kardor just got here.’ Then he put the pistol in his pocket and began to slap and kick and fist me, and my nose started bleeding. While he was hauling me by the collar of my shirt and dragging me to the back door of my home the bottom shirt and everything tore off my body and then I made my escape through the front door; that is all I know.” Witness Richard Kardor, whilst on the stand for the prosecution, testified as follows: “On April 26, 1956, in the house of Mr. Samuel Z. Gbotoe, whilst sitting down together with one Miss Clara Ballah and the said Mr. Gbotoe, I was called outside by the next-door neighbor. Not five minutes after I had stepped outside, I heard Miss Clara Ballah calling me. When I returned, she led me into the house. Whilst going, I saw Mr. T. Y. Larmouth in Mr. Gbotoe’s house holding Mr. Gbotoe’s shirt collar and choking him, and pulling him through the passage of his house, through the back door with a pistol at Mr. Larmouth’s side in a holster. Being afraid, I ran outside and called some people to part them.” Witness Clara Ballah testified as follows : “Mr. Larmouth met me in Mr. Gbotoe’s room one night, and he asked me what I was doing there. I told him that I went there for something, and he asked : `This time of night in the man’s room?’ Then Mr. Larmouth asked Mr. Gbotoe what I was doing in his room that time of the night. Then Mr. Larmouth said to Mr. Gbotoe : ‘People have been telling me that you and my girl-friend are loving.’ Gbotoe replied, and said : The girl and I are not loving.’ Then Larmouth said : ‘If you all were not loving, she would not be in your room.’ Whilst they were talking I got afraid and left the room. I had not reached outside when I heard them fighting. Then I called my friend, LIBERIAN LAW REPORTS 497 Richard Kardor, to go and part them; but he refused and said he was afraid.” From the above-quoted testimony, it is evident that the appellant was the aggressor; that he defiantly entered the private prosecutor’s house and flogged him. Nowhere in the records did the defendant produce any evidence which would tend to raise the slightest doubt of his guilt, but on the contrary, the prosecution proved the charge of assault and battery against him beyond a reasonable doubt. The judgment of the lower court is therefore affirmed. And it is hereby so ordered. Ahirmed.