WEH DENNIS and WAH BLOH-MULLENBURG, Appellants, v. REPUBLIC OF LIBERIA, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT, MARYLAND COUNTY. Argued April 2, 1970. Decided June 11, 1970. 1. The burden of proof in a criminal case rests on him who has the affirmative. 2. Once a witness has been qualified to testify, should he be allowed, as in the instant case, to be present in court during the testimony of seven other witnesses for the prosecution, the court has committed reversible error when it has permitted the prosecution to so handle its prospective witness. 3. When a criminal suspect, or one charged with the commission of a crime, is asked to make a statement at a preliminary investigation, he is not compelled to answer and, if he should, he must first have been apprised of his right to stand mute and warned that his statement could incriminate him. 4. The failure to apprise the person of his rights and perils renders any statement made by him inadmissible in evidence at a future trial. 5. Whenever the witnesses for the prosecution contradict each other, the doubt which results therefrom should operate in favor of the accused. U. The best evidence in a case must be produced, and when such evidence is producible, but has not been obtained for lack of effort, the evidence offered should not be received. 7. When the testimony of defendants in a criminal case is not in any respect rebutted by the prosecution, such testimony is entitled to some legal weight in favor of the defendants. 8. For a case to be considered admissible no taint of impropriety can attach to the handling of criminal suspects by authorities for confessions thereafter obtained from them while in custody. 9. Indicia of a juridical conviction are, firstly, that the offense has been correctly charged in a valid indictment; secondly, that admissible evidence only was placed before the jury; and thirdly, that the evidence thus sifted has satisfactorily established the guilt of the accused beyond a reasonable doubt. The appellants had originally been indicted for murder with two others, but on the day of their trial the prosecution declared in court that their cases were to be severed from those of the two being tried and ‘would nolle prosequi, for the purpose of having them testify as prosecution witnesses. They were never presented, however, and the prosecution subsequently alleged that the reason therefor was defense tampering with the appellants. They were thereafter tried for murder. At the trial, 47 48 LIBERIAN LAW REPORTS much conflicting testimony was presented by the prosecution, sources of information were refused on the ground of privilege, and doubts as to the legality of confessions obtained from the defendants became manifest. The defendants were found guilty, and they appealed from the judgment of the trial court. Judgment reversed, and because of the manifest lack of admissible evidence, and the resultant grave doubts of the Court as to their guilt, they were ordered discharged from custody, without day. 0. Natty B. Davis for appellants. George E. Henries for appellee. Solicitor General MR. JUSTICE the Court. WARDSWORTH delivered the opinion of The record certified and transmitted to us by the trial court in the above-entitled cause reveals a sad and pathetic story as may be gathered from the face of the indictment in these proceedings. The grand jury of the County of Maryland in its May Term, 1966, of the Fourth Judicial Circuit Court, made presentment to the court of the following indictment: “The grand jurors, good and lawful men and women of the County of Maryland, Republic of Liberia, duly selected, sworn and empanelled to inquire within the said County in the name and by the authority of the Government of the Republic of Liberia, do upon their oaths present Robert Bloh-Mullenburg and Weh Dennis, defendants, for a felony, to wit : ‘Murder,’ committed in the City of Harper, Maryland County, Republic of Liberia, in the manner and form as follows : “The aforesaid Allen N. Yancy, Jr., Alfred D. Moulton, Sr., Robert Bloh-Mullenburg and Weh Dennis, co-defendants, previous to the finding of this indictment did meet within the City of Harper, LIBERIAN LAW REPORTS 49 Maryland County, and conspire, connive and agree together to commit a felony-murder on and upon the body of Gabriel W. Diggs, Jr., and said defendants did, between the hours of sundown of May 16, 1965, and sunrise of May 17, 1965, within the said Harper City, Maryland County, unlawfully, wickedly and feloniously, with deliberation and malice aforethought, with a community of purpose in a concerted effort and by a grand plan, kill Gabriel W. Diggs, Jr., in the City of Harper, Maryland County, Republic of Liberia, without the fear of God within them but instigated by the devil, intending and contriving to wickedly promote and foster the political avarice, greed and ambition of co-defendant Allen N. Yancy, Jr., instigator of the wicked and felonious crime, and to extract certain parts therefrom with a primitive view to superstitiously win and gain his wicked motive and ambition, and in furtherance of the said conspiracy defendants did maliciously, wickedly kill and murder an innocent man, Gabriel W. Diggs, Jr., by hitting him in the head with an iron bar from which deadly fatal blow Gabriel W. Diggs, Jr. did instantly die in the peace of God in this Republic. Thus, the defendants then and there committed the crime of murder, all of which is contrary to the statute law of the Republic of Liberia, and against the peace and dignity of the State. “And the grand jurors aforesaid, do upon their oaths aforesaid, further present, that the aforesaid defendants did extract certain parts from the body of the murdered man, Gabriel W. Diggs., Jr., and then burned him up with acid, for the purpose aforementioned. All of which is contrary to the statute law of the Republic of Liberia in such cases made and provided and against the peace and dignity of the State. “And the grand jurors aforesaid, do upon their oaths aforesaid present that Robert Bloh-Mullenburg 50 LIBERIAN LAW REPORTS and Weh Dennis, defendants, at the time and place aforesaid, and in the manner and form aforesaid, did wickedly, unlawfully, willfully, deliberately, feloniously, premeditatively and with malice aforethought do and commit the crime of murder, contrary to the form, force and effect of the statute law in such cases made and provided, and against the peace and dignity of the Republic of Liberia.” The above-named appellants, Weh Dennis and Wah Bloh-Mullenburg, were indicted in the Fourth Judicial Circuit Court, originally along with Allen N. Yancy and Alfred Moulton for the alleged murder of Gabriel W. Diggs, Jr. On the morning when the case was called for trial, defendants Moulton and Yancy were present in court, but appellants were not. When inquiry was made regarding their whereabouts, the sheriff informed the court that he had sent to Puduke Barrack where the two were incarcerated, but that the officer whom he sent had reported that these two men had been removed from Puduke early that morning by police officer Joseph H. Diggs. And while defense counsel, as the records in the Yancy case previously heard by this Court will show, was complaining to the trial judge about this irregularity, appellant Mullenburg entered the courtroom, and, when queried as to where he had been and why he was late getting to court, he explained that police officer Joseph Diggs had brought him over early that morning and had taken him to Police Headquarters, where he had asked him to make a statement, but he had told officer Diggs, that inasmuch as the court was then in session and his case was to be tried, he would only make a statement when he got before the court. At this stage the prosecution, through counsellor C. Wellington Campbell, who was assisting the state, suddenly announced that the state was entering a nolle prosequi in favor of appellants, because they intended to LIBERIAN LAW REPORTS 51 use the appellants as state witnesses. They asked that the appellants be severed from the trial of Yancy and Moulton. Thus the investigation which the court had commenced in respect to appellants being tampered with by police officer Diggs, automatically died, and appellants were set at liberty. Although the nolle prosequi referred to above was entered in appellants’ favor and they were discharged to be used by the state as witnesses against Yancy and Moulton, nevertheless they were never called by the prosecution to testify. It was not until the defense, as shown in the record in the Yancy case which has been before this court, called the court’s attention to the fact that the state had deliberately failed to put these two defendants on the stand, that the prosecution asserted that it had not done so because it had obtained knowledge that the appellants had been tampered with by the defense. But the court was never asked to conduct an investigation into such a grave matter. Originally, the criminal agency was traced to four persons who were duly charged after an investigation was conducted by an Executive or a Special Commission set up by President William V. S. Tubman. From the record before us it is evident that the investigation was regularly instituted, but there is no record of the findings of the said Commission. It is noted that appellants Weh Dennis and Wah Bloh-Mullenburg were alleged during the investigation of the Special Commission to have confessed being parties to the murder of Gabriel W. Diggs, Jr., but appellants contend the confessions were obtained by the prosecution contrary to the rules of evidence in that torture and brutality were employed. According to the record in these proceedings it appears that the defendants each confessed in the absence of the other, and that they were without legal counsel to represent them during the investigation. At the rendition of final judgment September 9, 1966, 52 LIBERIAN LAW REPORTS defendants noted exceptions thereto and perfected their appeal for review by this Court. Defendants have submitted a bill of exceptions containing nine counts. We deem counts one, three, and four substantial enough for consideration. “1. Because the court sustained objections of the prosecution when defendants’ counsel propounded the following question to state witness C. Wellington Campbell while on cross-examination : ‘Please tell the court and jury what was the RH factor of the type of blood that you found in the bathroom?’ To which the prosecuting attorney objected on the ground of immateriality and irrelevancy to issue at bar. To which defendants there and then excepted. “3. And also because the court sustained the objection of the state to the question put to witness Hilary Brewer on cross-examination when asked : ‘In keeping with the Constitution of this land to the effect that no man shall be compelled to give evidence against himself, did you warn the members of your special Commission, of which you were Chairman, not to force, coerce, intimidate or place under duress the accused in order to safeguard their rights under the Constitution, so as not to give evidence against themselves in a criminal charge of murder?’ To which defendants there and then excepted. “4. Defendants further submit that the court erred when it permitted the County Attorney, Faikai Gardiner, to testify for the state over the objections of the defendants that although counsellor Gardiner was carried on the indictment preferred against the defendants, notwithstanding, he was not used either as the first or second witness, but was permitted to sit in court and hear the testimony of seven other witnesses for the state whom he directed. In the face of these objections, the court ordered him qualified, and he testified LIBERIAN LAW REPORTS 53 against the defendants, to which defendants there and then excepted.” In count one of the defendants’ bill of exceptions they complain that the trial judge sustained the prosecution’s objection to a question seeking from him information as to blood type found on the murder scene. The prosecution having alleged that blood found in the bathroom was that of the decedent, it was error on the part of the trial judge to sustain the prosecution’s objection when the burden of proof rests on him who maintains the affirmative. It was incumbent on the prosecution to prove that the blood discovered in the bathroom was that of the decedent. The defendants’ count one is hereby sustained. The organic law of the land provides, inter alia, that no man shall be compelled to furnish evidence against himself. The trial judge erred when he sustained objection to the question propounded by the defense in count three. Defendants were accused of murder and were being tried for a capital offense, and it was very necessary for the court and jury to know whether or not the defendants were actually warned that whatever they said by way of confession could be used against them, especially so when they were not represented by counsel. Therefore, count three is hereby sustained. In count four appellants complain that the trial judge permitted the County Attorney, Faidai Gardiner, to testify for the state over the objection of the defendants that although he was carried on the indictment preferred against them, he was not used either as the first or second witness, but was permitted to sit in court and hear testimony of seven other witnesses for the state, whom he directed. This is against the rule of sequestration and which we construe as being reversible error for prejudice to the interest of the defendants, who were entitled to a fair and impartial trial. Count four is hereby sustained. 54 LIBERIAN LAW REPORTS Prosecution witness C. Wellington Campbell, took the stand and testified to crime in the land and the function of the Presidential Commission in investigating the murder of Diggs. Another portion of his testimony has been included : � “Q. Say all you know about this case of Wahtoe’s murder was told to you by defendant Wah Bloh, Rev. Julius, and not from any extraordinary technique of yours, not so? “A. You are wrong, because information and facts and circumstances I have related were acquired by me through professional means, analyzed, evaluated and processed into an intelligent estimate, having taken a specialized course in intelligence and security in foreign parts, because of which the President appointed me as Director of the NISS. “Q. You have said that we had later found from the investigation and probing that this white band was a significant sign used by murderers to purge themselves of the crime committed by them. Please tell the court and jury who told you this thing, and/or by what means or probing you did arrive at such conclusion? “A. Whatever means used by the Intelligence and Security Service is classified and privileged, and no one can divulge same without violating the fundamental principal of compartmentalization, except specifically authorized by him, the President to do so. That is your answer. “Q. And, therefore, you tell the court and jury that even in a murder case, you cannot say how you arrived at your conclusion? “A. Although the question is unduly cumulative, I repeat, that the manner in our obtaining information and our sources cannot be disclosed with- LIBERIAN LAW REPORTS 55 out seriously reducing the security service to incompetency and dealing a death blow to the very effectiveness of said service.” J. Hilary Brewer, while on the stand in behalf of the prosecution, was asked by the defense on cross-examination : “Q. In keeping with the Constitution of this land to the effect that no man shall be compelled to give evidence against himself, did you warn the members of your special commission, of which you were Chairman, not to force, coerce, intimidate or place under duress the accused in order to safeguard their rights under the Constitution, so as not to give evidence against themselves in a criminal charge of murder? [Objection, grounds : eliciting expert testimony, the witness not being a lawyer, said question propounded by the defendant partakes of a legal aspect. The court: Objection sustained. And so ordered. To which the defense excepts.]” Where a criminal suspect, or one charged with the commission of a crime, is called upon at a preliminary investigation to make a statement, he is not compelled to do so and he must be warned that such a statement could be used as evidence against him. The trial judge, therefore, committed reversible error when he disallowed the question put to prosecution witness J. Hilary Brewer on crossexamination, when he was asked whether or not he gave the necessary warning to co-defendants Wah BlobMullenburg and Weh Dennis. Yancy and Moulton v. Republic, [1967] LRSC 14; 18 LLR 97 (1967). On cross-examination, William U. Commings testified, in part : Did I understand you to say that on the night of the 16th day of May, 1965, you did not recognize Weh Dennis and Wah Bloh? [Objection, 56 LIBERIAN LAW REPORTS ground : misquotation (objection withdrawn).] “A. I did not recognize them, but I described them to the Investigation Board. “Q. Please say whether or not the persons you described to the Investigation Board were seen by you in the night or without light? “A. Without light but moonlight.” Col. Snyder on the witness stand for the prosecution was cross-examined by the defense. “Q. And therefore in support of the oath that you took to uphold and protect the Constitution of this land, you warned or reminded the defendants of their constitutional rights not to say anything against themselves, for whatever might be said by them could be used against them? [Objection, ground : eliciting expert testimony and the first part of your question as propounded by defendants’ counsel is unduly cumulative. The court: objection not sustained.] “A. I was sent by the President as a member of the Special Commission to probe into the murder of Mr. Gabriel Diggs and any other murder from four years back. If Mr. Weh Dennis and Wah Bloh made a confession, signed it and put their fingerprints on it, that was a job assigned by the Commander-in-Chief, do you mean for me to tell the two murderers not to make confession, I, a military man, and when the Commander-inChief gives me an order would I come and tell you not to go. I have no right to tell these two men not to make a confession. “Q. For the benefit of the court and jury, can you name the agent who gave you the information you referred to? [Objection, ground : Whatever means the witness came by his information is privileged and he can only disclose to the authorities which authorized his action, therefore, LIBERIAN LAW REPORTS 57 on the ground of privileged communication we object to the question. The court : In Bryant v. Bryant, the cross-examiner had the right to test the motive, inclination, bias and hostility of a witness, as well as his means by and through which he acquired his knowledge given in testimony. And again it is the cross-examiner’s right to question the witness on the statement or story he has told. When the plea of a defendant is not guilty, the jury should be afforded its discretion by the evidence of the whole issue. Touching privileged communication, if it is inadmissible now the prosecution has to show he is one of those who according to common law or the existing statute is exempted or precluded from giving privileged communication, especially in the case of a competent jurisdiction. And so ordered. Objection not sustained, the question allowed to be answered.] “A. In my general statement I told the court that William Commings, Jr., was at Police Headquarters the night Gabriel Diggs was murdered and he was brought in by Allen Yancy, Moulton, Wah Bloh and Weh Dennis, but to substantiate what had been brought in by young Commings we checked other agents, which I am not in the position to disclose, and found that it was truth in what he had said. Our agent went on to say, that Weh Dennis left Harper and went out of town after he had served as coroner juror. I want the jury to understand, because you have to get this information from two or three persons to satisfy yourself, but that particular agent, I will not give the name of it.” Joseph H. Diggs, Deputy Inspector of Police for Maryland County, testified on cross-examination. “Q. Do you swear that during the time of your in- 58 LIBERIAN LAW REPORTS terrogation the defendants in the dock were handcuffed as means of placing them in duress? “A. If any citizen or foreigner who would avoid committing crime, he or she should not be handcuffed, but if you are charged, and for fear of our safety to prevent you from escaping ; we usually handcuff you, but not as tight as you want us to say.” From the above questions and answers given by witnesses for the prosecution, it is evident that witnesses contradicted the statements or testimony of the other witnesses for the prosecution who tried to prove the voluntary character of the confessions allegedly made by the defendants. We refer specifically to the answers of Col. Snyder and Joseph Diggs respectively on cross-examination, as quoted. The court in Capps v. Republic of Liberia, [1919] LRSC 1; 2 LLR 313 (1919), held that whenever the witnesses for the prosecution contradict each other a doubt results which should operate in favor of the accused. From the record in this case, it is evident that better evidence exists, for the witnesses for the prosecution refused to disclose the names of their informants, contending that they obtained their information as professionals and as such the information is a privileged communication and cannot be disclosed, except under certain conditions. As to the best evidence : “The best evidence the case admits of must always be produced, that is, no evidence is sufficient which supposes the existence of better evidence.” Civil Procedure Law, 1956 Code, 6:685. Mr. Justice Russell, speaking for the Court in Yancy v. Republic of Liberia, [1935] LRSC 7; 4 LLR 268, 279 (1935) , stated : “And no evidence is to be received which is a secondhand rendering of testimony not produced, though producible, by which a higher degree of certainty LIBERIAN LAW REPORTS 59 could be secured. 10 ,�4.” WHARTON, Criminal Evidence, Co-appellant Weh Dennis also took the stand and testified that each time he asked Inspector Diggs and the detectives to bring Allen Yancy and Wah Bloh, who they said implicated him as one of the killers, so he could confront them, they would start beating him and he was also handcuffed. He said that being faced with such maltreatment he was compelled to lie, hence he lied before the Special Commission. From the record before us, it would seem that the witnesses for the prosecution did not give evidence from their own certain knowledge but from what was told them, or what was gathered by them through the usual police methods. However, we deem it expedient to quote relevant portions of the defendants’ testimony in their own behalf, starting with Weh Dennis. “Q. Give your name and place of residence. “A. My name is Weh Dennis and I live in Harper City. “Q. Were you acquainted with Gabriel Wahtoe Diggs, the deceased, and if so what relationship did you bear with him? “A. Yes, he was my cousin, he is dead. “Q. The state charges you with the killing of your cousin Wahtoe, to which charge you declared your innocence. In support of your plea, please explain for the benefit of the court and jury what do you mean that you are innocent of Wahtoe’s death? “A. I know nothing about Wahtoe’s death, to my surprise one Monday morning I heard that Wahtoe was dead. In the year 196o, I was sick and from that illness my mouth and eye became affected and twisted. On Monday, I was sick lying in bed as my sickness had come back, 60 LIBERIAN LAW REPORTS and heard that Wahtoe was dead. As my mouth and eye began to hurt I had to tie my head with a handkerchief. To my surprise Joseph Diggs carried a car, called Wah Bloh and myself, Sweh Appleton, and he called us outside and asked me what I know of Wahtoe’s death and I told him just what I have placed on record. He asked me if it were all I knew about it, he asked me four times ; after Wahtoe’s burial I was still sick and for each tin-le I go to hospital they would not give me any medicine and I went to Firestone. While I was at Firestone Inspector Joseph Diggs went and arrested my family on a Friday and the very day I got the news I came that same day and when I came never went to my house, the car brought me straight to the Administration Building. When I came I asked who told the people that I had killed Wahtoe, for which my family had been arrested, so I told them to release my family because I have come so that we can talk it, and I was put in jail. They told me to agree to be freed and Inspector Diggs told me, if you agree we will give you more money than what Allen Yancy will give you because Allen told us that he has given you $ioo. I said, I do not know anything. Wah Bloh is lying on me. I know Allen has not given me one cent before, so I know nothing about Wahtoe’s death. I was given a chair which I held up for fifteen minutes, they told me that Bloh and Allen had already confessed and when I took the chair down they handcuffed my two hands and my feet with shackles and told me that I should confess before they take the handcuffs and shackles from my hands and feet and that I should admit that Allen Yancy, Wah Bloh and myself had com- LIBERIAN LAW REPORTS 61 mitted the crime. Among the detectives, there was one whose name I have forgotten who striked a match and burned my beard, also the nub of a cigarette, and asked if I smelled my beard. I told him that everything is left with God and if I did it God knows and he slapped me in my ear and every month my ear hurts and runs water. I had to attend the hospital. The second night they carried me in a toilet where Inspector Joseph Diggs had told them to carry me and they began beating me. Arthur Thomas turned my face to the wall and the police and detectives began beating me one after another. They said that Bloh and Allen Yancy had already confessed and I was still denying, so I should confess. I said to them that since Allen Yancy and Bloh had confessed that they together with myself had committed the crime you should bring them to face me. I was still handcuffed and for each time I would open my mouth to talk they would beat me and they refused to bring Allen Yancy and Wah Bloh. They took me out of the toilet and brought me to the building but I was still handcuffed.” Mullenburg was also a witness in his own behalf. “Q. What is your name, place and residence? “A. Bloh-Mullenburg, I live at Oldman Kla’s place but presently in the Pudukeh Barracks. “Q. Were you acquainted with one Wahtoe Diggs and if so where is he now. “A. Yes, I know Whatoe, he is dead. “Q. The Republic of Liberia charges you with the killing of Wahtoe and upon your arraignment you entered a plea of not guilty. You are now called upon to speak all you know, if any, in support of the said plea. . “A. Yes, I know Wahtoe but I do not know about 62 LIBERIAN LAW REPORTS his death. About Wahtoe’s death, before I heard it one early morning I went to Hoffman Station on a Monday I do not know. I was building a shop for one boy and while we were building the shop, General Clark came from his place and called me and said, Wah Bloh, I heard that Wahtoe is dead, in astonishment I said, yes, I heard it too this morning. I then left all my friends and told them that I was coming to town. When I came I asked for the body of Wahtoe and I was told that it had been carried to the Government Hospital and it was true when I went I found this to be correct, the body was in the morgue. This is what I know about Wahtoe’s death. After they had completed Wahtoe’s body in the hospital he was, that is to say, his remains were brought to Weh Dennis’ place and I tried and assembled the drum corps to build a tent and while we were building a tent Inspector Joseph Diggs came to me, called me and asked me what I knew about Wahtoe’s death. I told him that I did not know anything about Wahtoe’s death. He asked me, Wahtoe and who made palaver that when we divided the money, and I told him that Wahtoe and I made no palaver. It was only new boy among us who made palaver for money. So after they divided the money we separated and he went back. Afterward we continued fixing the tent, then Bloh came with the taxi and called Dennis and me and asked us what we knew about Wahtoe’s death. I personally told them I do not know anything about Wahtoe’s death. After two weeks I was at my place where Joseph Diggs, Col. Snyder and one lieutenant who was at Pudukeh, was in a sedan, came in the evening approximately five thirty, it was on Monday, LIBERIAN LAW REPORTS 63 I was working in my carpenter’s shop, where I was caught and locked in the cell. After I was put in the cell Joseph Diggs called me and took me out and brought me near the steps about six thirty P.M., and he, Inspector Joseph , Diggs, said to me, Bloh, the reason why you are imprisoned is because they say that you know something about Wahtoe’s death. I said to Inspector Joseph Diggs that what you have asked me I do not know anything about it. It was then that he took me upstairs to the Superintendent, and after I went before the Superintendent, he, the Superintendent, asked me, Bloh, what do you know about Wahtoe’s death, I answered the Superintendent, swearing upon my Holy Communion that I knew nothing about Wahtoe’s death. Mr. Superintendent, since I have been in this vicinity and City, have you ever heard that Bloh been mingled in such a thing or involved with anybody’s death before, I said, I do not know anything, Mr. Superintendent. With that I was taken back to the cell. While the handcuffs were on me Lieutenant Miah was called and the same Inspector Joseph Diggs reiterated to Lieutenant Miah, I have told Bloh that I will use martial law on him ; hearing that, Lieutenant Miah hauled out his pistol and pointed it toward my mouth and said if you do not talk I will blast your mouth. And they commenced beating me, slapping my ears and again I called out to the Superintendent and said to him, do you see what is happening to me. Before they loosed the handcuffs, what I said, I will not hide it, I then said, alright, if Joseph Diggs says that Allen has called my name, yes, I am inside, if Allen has called my name so that they can loose the handcuff, and this is what I 64 LIBERIAN LAW REPORTS said right there, and now I exhibit the scars of the handcuffs on my hands. What caused Weh Dennis’ name to be called, Joseph Diggs asked me for Weh Dennis and I told him that he was sick and gone to Pleebo and he, Joseph Diggs, put me in the car and brought me in this room. It was Colonel Snyder, Inspector Joseph Diggs and the County Attorney who took me at a house behind Catholic Mission and they asked me and I told them, my people, I do not know anything about Wahtoe’s death and they told me that I should lie and they said, if you talk as we have told you, you will be Government’s witness, therefore, I consented and lied, thinking I would be free, not knowing that I was putting myself in a trouble, and this is what I know.” The crime itself was established by the evidence advanced but the same evidence has not established the guilt of the accused. Although the testimony of appellants in their own behalf was not corroborated, yet, nowhere in the record do we see that the testimony was in any respect rebutted by the prosecution. Under such circumstances, the testimony of the appellants in their own behalf is entitled to some legal weight. In Gio et al, v. Republic of Liberia, 17 LLR 68o, 689 (1966), involving murder, Chief Justice Wilson spoke for the Court: “Before analyzing and arriving at a determination of this very serious matter, we would like to remark and this to serve principally as a guideline to further inquiries by law-enforcing agents for the detention and presentment of criminal suspects so as to secure a legitimate and successful prosecution of these suspects, that every restraint must be exercised in the handling of persons suspected of having committed a crime. When confessions are obtained in a manner LIBERIAN LAW REPORTS 65 other than the law requires or permits, such confessions must be declared and considered by a court of justice as involuntary and therefore inconclusive.” In further support the Court held in Lewis v. Republic of Liberia, [1937] LRSC 3; 5 LLR 358 (1937), that a juridical conviction connotes (t) that the offense must be correctly charged in a valid indictment; (2) that only legal evidence should be placed before the jury which is asked to convict; and (3) that the evidence thus sifted should satisfactorily establish the guilt of the accused beyond a reasonable doubt. The evidence in this case being inconclusive, that is to say, a doubt having been raised as to the guilt of defendants by the contradictory statements of the prosecution witnesses, and by the prosecution’s failures to produce the best evidence the case admits of, the judgment of the lower court is hereby reversed and the defendants discharged without day. And it is hereby so ordered. Reversed, defendants discharged forthwith. MR. JUSTICE SIMPSON dissenting. This case is a companion case to Allen N. Yancy, Jr. and Alfred D. Moulton, Sr., v. Republic of Liberia, which was decided by this Court at its March Term, 1967. Here again, we have been requested to examine and review what has been termed several errors during the trial in the court below, with a special reference to a certain species of evidence which was admitted and placed before the jury and which influenced to a large extent its finding the verdict of guilt that was brought against the two defendants, now appellants before this Court. There is one slight variation in the evidence admitted at this trial and the one hereinabove alluded to as a companion case. In the case at bar the record shows that extrajudicial confessions were in fact made by the appellants, whereas 66 LIBERIAN LAW REPORTS in the Yancy and Moulton case there were in fact no confessions made by the defendants. In the circumstances, our chief concern here has to do with the admissibility of confessions where the party alleges that the purported extrajudicial confessions were illegally obtained through force and the infliction of pain upon his person, thereby removing the aspect of voluntariness from the confessions which otherwise would have made it admissible in evidence. My colleagues have determined that the appellants be discharged without day, for if the trial in the court below were illegally had, the illegal act or acts attending the trial should be caused to operate in favor of the defendants. In support of this position the majority has cited Capps v. Republic of Liberia, [1919] LRSC 1; 2 LLR 313 (1919). In that case the Court held that the evidence given by an accessory should be received with great caution and, additionally, it should be corroborated both as to the facts of the crime confessed and the participation of the accused. Continuing, the Court further held that the better practice is to charge the jury not to convict upon the uncorroborated testimony of an accomplice. Predicated upon this position, which should have given rise to either a directed verdict, a charge to the jury not to convict, or the granting of a motion for a new trial, the Court reversed the lower court’s judgment without ordering a new trial. The second case cited by my colleagues in support of their contention, is Lewis v. Republic of Liberia, [1937] LRSC 3; 5 LLR 358 (1937). A first glance at the opinion showed that it had been written by Mr. Chief Justice Grimes in 1937. Due to the high esteem in which I have always held the legal opinions of Mr. Chief Justice Grimes, I proceeded to carefully examine the facts and the law applied by the Court in the Lewis case. As was correctly cited by my colleagues, the Court held that a judicial conviction con- LIBERIAN LAW REPORTS 67 notes that only legal evidence should be placed before the jury asked to convict. It is noteworthy to point out here that this Court at that time held that the judgment be reversed and the case remanded for a new trial. This is all that I have contended in this case, for the Constitution specifically provides that one accused of the commission of a crime shall be tried by a jury and no person should be deprived of his life, liberty, property or privilege, but by judgment of his peers, or the law of the land. It goes without saying that the law of the land cannot directly or indirectly contravene an expressed provision of the Constitution. The holding of the Court in the Lewis case was predicated upon stare decicis, obtained from its holding in Lawrence v. Republic of Liberia, [1912] LRSC 2; 2 LLR 65 (1912). Therein, this Court held that evidence admitted at the trial was illegal and, therefore, the judgment be reversed and the case remanded with direction to grant a new trial. The same position was again taken by this Court in Yancy and Delaney v. Republic of Liberia, [1933] LRSC 14; 4 LLR 3 (1933). At that time the Court held that when a trial judge commits flagrant errors in the trial of a cause, to the prejudice of a party, the Court will reverse the judgment and award a new trial. The Court further held in the case that the admissibility of all evidence is within the province of the court, but when admitted, its credibility is to be left with the jury. Since my dissenting opinion in Yancy and Moulton, [1967] LRSC 14; 18 LLR 97, 136 (1967), is pertinent here, I shall herein reiterate excerpts from that opinion. “In other words, this Court cannot pass upon the credibility of evidence, only its admissibility, for to do so would constitute usurpation of the functions that the Constitution has left exclusively to the jury. In the Yancy and Delaney case, we had errors committed 68 LIBERIAN LAW REPORTS by the trial judge that included the improper admission of evidence, and again there was a reversal of the judgment and a remand for a new trial. “Five years later, in 1938, this Court spoke again on the question of inadmissible evidence. In Dennis v. Republic of Liberia, [1938] LRSC 14; 6 LLR 269 (1938) , Mr. Justice Tubman, speaking for the Court, held, at p. 275 : ” ‘It is, therefore, our opinion that it was flagrant and gross disregard of the constitutional privilege of the defendant for the prosecution with the approval of the court to have issued a writ to defendant to produce private letters written to him and require him to identify them to be used as evidence against himself in a case pending against him upon an indictment of the grand jury for a felony and in the trial of the identical cause.’ ” At the end of that opinion, this Court determined that again that there should be a reversal of the lower court’s judgment and a remand to that court for a new trial. This, in my opinion, constitutes yet another example of the prevailing rule in this jurisdiction. Let us for a moment move away from the reported cases and center our attention upon existing statutes and the Constitution. In touching first upon the latter, Article 1, Section 6th, provides : “Every person injured shall have remedy therefor, by due course of law; justice shall be done without sale, denial or delay; and in all cases, not arising under martial law, or upon impeachment, the parties shall have a right to trial by jury, and to be heard in person or by counsel, or both.” The Legislature in dealing with the subject of judgments on appeal, has provided in our Civil Procedure Law, 1956 Code, 6:1061 : “Judgment on appeal. Except as otherwise provided by law or in section 1062 below any appellate court may affirm or reverse the judgment of the trial LIBERIAN LAW REPORTS 69 court or award such other judgment as in its opinion will best conduce to the ends of law, justice and equity. “If the judgment is reversed, the appellate court may grant a new trial or award such other judgment as in its opinion is best. If there are no disputed facts requiring the determination of a jury, it may give such judgment as should have been given by the trial court, awarding such additional costs as it deems just, including the costs of appeal.” In consequence of the above-enumerated provisions of our law, I must respectfully submit that, as in the instant case, any action other than a remand for a new trial would contravene both the statute and the provisions of the Constitution. For where this Court, as in the instant case, becomes judge of the facts, it tends to assume the role of the jury in the course of its appellate function. The provision of section ‘obi above quoted, clearly states : “If there are no disputed facts requiring the determination of a jury, it (the Supreme Court) may give such judgment as should have been given by the trial court. . . .” It, therefore, follows that in instances wherein there are disputed facts, these facts should be presented to a jury for determination, and where not so done, we are confronted with a violation of both section io6i and the constitutional provision cited above. What does the law of the United States have to say about cases where the judgment must be overturned because of improperly admitted evidence? The defense in their brief cited certain recent decisions of the Supreme Court of the /United States on the question of selfincrimination. Two of the cases relied upon were Weeks v. United States, [1913] USSC 86; 232 U.S. 383 and Mapp v. Ohio, [1961] USSC 142; 367 U.S. 643. In both of these cases, as in Miranda v. Arizona, [1966] USSC 143; 384 U.S. 436, and Escobedo V. Illinois, 375 U.S. 902, the Supreme Court of the United States held that the trial court had committed errors by permitting the 70 LIBERIAN LAW REPORTS admission of certain evidence. However, in all of these cases, when judgment was reversed, they were remanded for retrial. We have now exhausted our own case law, the Constitution of Liberia, the statutes of Liberia enacted in pursuance of the Constitution, and cases decided by other jurisdictions in support of the position taken by the majority. I should like to mention that in Sims v. Georgia, 384 U.S. 538, Mr. Justice Clark, speaking for the United States Supreme Court, held that when the confession is inadmissible, due to the fact that the trial judge left the issue of voluntariness of the confession to the jury to determine, the judgment should be reversed and the case remanded to the lower court for a new trial. The case was only decided not quite six months ago. Let us now turn to the common law in respect to ascertaining whether or not a new trial should be ordered when error has been committed in the lower court. The following is relevant : “Likewise, new trials or other proceedings have been ordered because of a misapprehension of law or facts ; and amendable defects in the pleadings ; and have also been ordered because of a defect of parties to the action; errors in rulings on pleadings ; errors in the admission or exclusion of evidence ; errors in the instructions to the jury; and numerous other errors, defects, a mistake by counsel or the trial court or both, which have prevented such a full and proper trial or proceedings as the law contemplates in order to do justice to all parties concerned. (Emphasis ours.) ” 5 B, C.J.S., Appeal and Error, � 1939. Continuing: “On reversal of a judgment, order or decree for errors, defects, or irregularities committed or occurring during the course of the trial or proceeding in the court below, which can be satisfactorily corrected in no LIBERIAN LAW REPORTS 71 other way, an appellate court will usually order a new trial or other appropriate proceedings.” In Hartnett v.T exas,119S.W .855, 23 LRA (N.S.) 761, a police officer was indicted for embezzling money. The record of the trial revealed that the facts adduced did not support a conviction. In its opinion that court stated at p. 766 : “The indictment charges an offense. It follows the language of the statute. As we believe, however, under the law, the facts do not support a conviction. In this attitude of the record, and in view of the fact that the indictment does charge an offense against the law, it results that the prosecution cannot (emphasis ours) be dismissed ; but the judgment of conviction is reversed and the cause remanded for proceedings in accordance with the opinion.” In Bernhardt v. Brown, 118 N.C. 700; 119 N.C. 5o6, 36 LRA 402, the court held, at p. 407: “But it is only in cases in which the facts are fixed, and the only controversy is that the judgment remanded upon such state of facts is erroneous, that this court can adjudge ‘reversed.’ In the present case the errors affected the proceedings, and went into and brought out an erroneous verdict. The mover, however, insists that the error is so vital that this court can see that on its correction the verdict on the next trial must be for the opposite party. It may be so. It may also be true that on the next trial there may be amendments to the pleadings, or new evidence brought forward. The court cannot consider argument as to the possibility or probability of such charge. . . . When, on an appeal, error is found as to the proceedings anterior to and including the verdict, we can only declare error, and order a new trial.” Turning to 3 AM. JUR., Appeals and Error, � 1220, we find this comment: 72 LIBERIAN LAW REPORTS “Errors and defects in trial. Generally, when error is found as to proceedings anterior to and inherent in the verdict, the proper practice is to direct a new trial, and not merely to render a judgment of reversal. This is true where there has been error in the admission or exclusion of evidence, or in the rejection of proper instructions or the giving of improper ones, and a new trial will be granted where the trial court fails to define or outline the issue of fact which the jury is called upon to decide, and furnish them with sufficient guidance in deliberating on the case. Upon a reversal of a conviction of murder because of the acceptance of a plea of non vult contendere as a confession of guilt, the cause will be remanded, with directions to grant leave to the accused to withdraw his plea and plead anew as though such plea had never been entered.” I have examined all available sources of law in an endeavor to find a means possible to permit me to sign the judgment in this case. I am aware of the fact that a prime right of man as guaranteed by our Constitution is the right to a speedy trial. However, in my view a speedy trial does not mean no trial at all in an instance where the trial has been declared a nullity. Admittedly, we must in each and every instance assure to individuals literally fighting for their lives, every right afforded them by the law. Nevertheless, in so doing, we should take care not to distort our proper perspective. In other words, we should make certain that in our anxiety to do justice to the person, we do not commit injustice to the state. It is agreed that in a legal battle the arms and ammunition available to the state far exceed those which the lowly defendant has to his disposition. But the parties must be considered as equals in the eyes of the law, and to offend one in favor of the other would constitute an abject denial of justice irrespective of the fact that the LIBERIAN LAW REPORTS 73 party suffering the denial of justice is the mighty state and not the lowly defendant. In view of the foregoing it seems to me that justice would be properly meted out were this Court to remand the case to the court below and award the appellants a new trial. In my view they are not entitled to discharge from further custody until such time as a jury finds them entitled to it, since there exist several issues of fact which we are not competent to pass upon without violating the plain mandate of the Constitution. Therefore, I have refrained from signing the majority opinion, and have instead, prepared, read, and will now file this dissenting opinion.