TENTEAH, TOETEH, TOWEH, CRAJADA and NESIEAH (BUSHMEN), Appellants, v. REPUBLIC OF LIBERIA, Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT, SINOE COUNTY.

Argued January 2, 8-10, 1940. Decided February 9, 1940.

1. Trial by ordeal is unconstitutional and illegal.

2. While it is provided that the native and district courts shall administer the native customary law, a proceeding calling for trial by ordeal, intended to extort a confession from the accused, is in conflict with the organic law of the state declaring that no one shall be compelled to give evidence against himself and is, therefore, illegal.

3. Where guilt is proved beyond a rational doubt, the evidence is clear, and the trial is regular, the judgment of conviction of the lower court will be affirmed.

The defendants were convicted of murder in the circuit court. On appeal to the Supreme Court, judgment affirmed.

T. G. Collins and W. O. D. Bright, Jr., for appellants.

C. A. Cassell, Revenue Solicitor, by appointment of the Attorney General, for appellee.

MR. JUSTICE RUSSELL delivered the opinion of the Court.

This case is before this Court upon an appeal from a judgment of the Circuit Court for the Third Judicial Circuit, Sinoe County, rendered at its August term in 1938.

The records in the case as certified to this Court show that at the May term of court in the year aforesaid Tenteah, Toeteh, Toweh, Crajada and Nesieah, all bushmen, were indicted for the commission of the atrocious crime of murder for the wilful and malicious killing of one Flarn Yonnoh Teah, a Wehjah man, on the twentyfifth day of April, 1938, in the settlement of Cedor, County of Sinoe, Republic of Liberia, with instrument unknown to the jurors.

On the eighth day of August in the year aforesaid, when the case was called for hearing, the prisoners were arraigned and pleaded not guilty, except Nesieah who, according to the evidence of some of the witnesses for the prosecution and the prisoners, was not arrested and therefore was not tried. The prisoners who were arrested and put on trial having pleaded as above-mentioned, a petit jury was accordingly empaneled and sworn to try the issue thus joined between the Republic of Liberia as plaintiff and the prisoners as defendants.

The counsel for the prosecution, after outlining the theory of the case, introduced witnesses who were duly qualified and testified.

The first witness who took the stand and testified was Minnie Wah, who testified inter alia:

“On the twenty-fourth day of April about six-thirty Tenteah came to me, calling before he got to the house. He was told that I was sick and lying down. Anyhow, I called him in. He got to my room door and there stood and said to me, ‘Please, I want you to come over there tomorrow morning. I lost a goat and I want to try native ordeal, and I want you to witness it.’ He said further, Tut I would like to tell you that the person whom the ordeal catches tomorrow will be a dead man.’ He went on a little way and returned again and said he wanted to see me privately. I got up from my bed and went with him a little way along the road, but I told him that I could not go too far, so he should tell me what he had to say. He then said, ‘I think it is Flarn Yonnoh Teah who stole my goat. . . I said, ‘All right, Tenteah. If I am well on tomorrow, I shall try to come, since you say it is Flarn Yonnoh Teah. . . .’ So the next morning I hesitated and would not go. But as there are always two spirits striving with man, I afterwards thought over the fact that we are but two civilized persons residing in the place, I said I would go. But while premeditating, Tenteah came again to call me. Anyhow, I made up my mind and went along with him, but I did not go direct to Tenteah’s place. I stopped at Mr. Burke Roberts’, and asked him if he had sent for me. He said, ‘Yes.’ I said, ‘Well I am here.’ Then he and his native girl with myself went together and they went on trying the ordeal. After trying it, he said that the Seconh people came out clear but Wehjah people were found guilty. So Flarn Yonnoh Teah, being the only Wehjah man staying there, got up and went between the sticks where they were administering the scrow, placed his foot two or three times and came out saying that they say that the scrow caught him, but he was not satisfied with it. Then he was asked by the Chief, Crajada, `What was the dissatisfaction?’ He said the man who tried the scrow was a Seconh man, hence he was not satisfied as it should have been a disinterested person. Upon this a messenger of the Chief called Nesieah got up and commenced to beat Flarn Yonnoh Teah. He struck him twice. I would not say anything the first and second time he struck him because they were not on my premises, but after I saw him coming the third time to strike him, I said to him, ‘No, do not beat him again. He says that he is not satisfied with this scrow, so he is taking an appeal. So let him have his appeal. Do not beat him.’ They said, ‘No, the scrow has caught him, and we can’t do any more.’ So I said, ‘All right. I would rather for him to have his appeal and have another scrowman to try the ordeal over.’ But they insisted that the scrow had caught him and they could not do any more. Then they began to take off his shirt and sit him down on the ground. . . . Then I went to my place. After a little while a young man came running to me saying that I should come at once, because they were beating Flarn Yonnoh mercilessly, and I said, ‘I am not going, as their pa is there. He is a civilized man and I am a civilized woman.’ . . . A little while again, two men came after Toeteh and said that Burke Roberts says that I must go at once because Flarn Yonnoh Teah had killed himself. So I came and saw him. . . . We went to Tenteah’s house where Flarn Yonnoh Teah was lying down dead. I saw him lying down on his side with a gun in his hand and his big toe on the trigger of the gun and blood gushing out of his nostrils and ears. I went close up to him because I was not frightened in the least and examined him. When I was through, I left and went to Mr. Roberts’ place and said to him, ‘So Flarn Yonnoh Teah killed himself, eh?’ He said, ‘Yes, that is what my boy Tenteah told me.’ A boy on my place by the name of Tweh asked this question in my presence, ‘You people say that this man had killed himself and he is lying just as quiet as he is, with his foot on the gun trigger and wherein if a man kills a chicken it jumps over the place. Then how come that this man is lying quiet as he is?’ Tenteah got mad and began to quarrel. This is all I know.”

“Q. What was the condition of the body on being examined by you?

“A. He was on his side lying down on the ground with a gun in his hands; his big toe on the trigger and blood gushing out of his nose and ears. Of course, I have seen two other persons who died by shots, but they were not in such a condition.

“Q. Could you hear a report of a gun at your place when fired at Mr. Roberts’?

“A. Yes, distinctly.

“Q. Did you hear a gun fire on that day in that direction?

“A. It may have fired, but I did not hear it at all.

“Q. In whose town was the ordeal tried and before what Chief?

“A. In Tenteah’s town and before Chief Crajada whom they say is a Chief.

“Q. Was the supposed shooting done in the town where the ordeal was administered or which town?

“A. I saw the dead body in Tenteah’s own house, being the house of his head wife, which was the same town where the ordeal was administered.”

Cross-examination was waived by defendants. The jury questioned the witness :

“Q. On examining the body of decedent did you see any penetration of shots anywhere about his body?

“A. No, I saw no signs of gun shots on any part of his body.”

The court questioned the witness :

“Q. Did you examine the mouth carefully?

“A. Yes, and I saw no signs of gun shots.

“Q. Did you discover upon his body any bruises or cuts that would indicate that he was beaten or cut to death?

“A. I really did not see any cuts, but under his ribs near the back of his shoulder was a knot and another knot was at the back of the neck.

“Q. How far back of the neck was that, near the back of his skull or where?

“A. On the lower part of the back of the neck.” See record, sheet two, first day’s session, Minnie Wah’s testimony.

This testimony of witness Minnie Wah was corroborated by Tarawalay, who said inter alia:

“The man tried the scrow and it caught Flarn Yonnoh Teah. Then he said to them, ‘I appeal the matter.’ They said, ‘We do not agree to it.’ Immediately thereafter they stripped him. Then Crajada and Tenteah said that they do not consent for him to appeal the matter. Then I said to Crajada, Tlarn Yonnoh Teah says that he appeals the matter, and you refuse him the privilege. Why do you sit here and have your messenger to treat him as they are doing by tying bunches of palmnuts around his neck splitting pestles and tying his hands between them and beating him with sticks? This thing you are allowing these your messengers to do is bad and it will bring palaver.’ Crajada took no part in the beating as it was done by Nesieah, Toweh, Toeteh, and Tenteah, but it was done in his presence and he said nothing. While they were treating Flarn Yonnoh Teah like that, he said to us (Wehjah people) , ‘My people, I cannot stand this treatment and I will die.’ . . . We took our paddle and went over home. Just while eating, we heard the report of a gun. Tenteah then ran to Mrs. Wah and told her that Flarn Yonnoh Teah had killed himself. Then she advised him to go across the river and tell us according to our custom, but he refused going. A Wehjah boy stopped with Mrs. Wah, then went over and told. Then I came running with my cutlass to get across the river. When I got in town I met Tenteah in the yard with his hands behind his back. I said to him, ‘What is the trouble?’ He said, ‘Flarn Yonnoh Teah has killed himself. If a man steals a man’s goat and kill himself, what is that to ask about?’ His mother then said to me, ‘My child, go and sit on the bench. That is nothing to ask about. Because a goat lost and a person dies, that the reason you come asking questions?’ I am ready to burst forth in a cry, but I am ashamed that you will laugh me to scorn, hence I have to hold my peace. This Tenteah in the dock is the one who killed Flarn Yonnoh Teah.”

“Q. Did you examine the body of Flarn Yonnoh Teah upon entering the scene? If so, what was the condition thereof?

“A. Yes, I did, and I discovered that he was not killed in the way that persons are killed by guns, be-cause there was no sign of gun shot through the mouth. The shots will pass through the skull and his tongue would show signs of it, but de-cedent’s tongue was as natural as mine is now.”

Witness Pubah took the stand and testified as follows :

“Tenteah then called a Tchein man by the name of Judu to try the ordeal, which he did by trying all of the Seconh people of the town first; and when they all got clear then they called upon Flarn Yonnoh Teah and told him to come and try it too. He said to them, ‘I do not feel disposed to try the ordeal of this man.’ They wanted to know what was his reason for saying as he did. Then he told them that the man’s brother by the name of Weonphlue went to him as a stranger. He illtreated him. Naturally he felt that this man would have sought the opportunity to take the grudge of his brother. Chief Crajada then said to him, ‘We lay that aside. You try the ordeal.’ After the Chief said that, he consented to try it, and, as he said, it caught him. Immediately they discovered that it caught him, Chief Crajada’s messengers who were there, Nesieah who has not been arrested, Toweh, and Toeteh rushed upon Flarn Yonnoh Teah and stripped him naked. He then said to them, ‘Do not strip me, as I am not satisfied with the ordeal and am taking an appeal to Chief Yonnooh of Snow Country.’ Chief Crajada then said, ‘I am the Chief presiding over this investigation, and you will tell me that you will go on an appeal to Yonnooh. I shall not permit it.’ During this time they sat him on the ground. Then Minnie Wah said to them, ‘Do not treat the man as you are. He says that he is not guilty and will take an appeal to Chief Yonnooh.’ They said to her, ‘Move away. You are not concerned here.’ She said, ‘All right. I am going home.’ And she went. Then only the three of us Wehjah men remained there with the Seconh people. As soon as Mrs. Wah left the scene, the messengers of Crajada whom I have mentioned commenced to beat Flarn Yonnoh Teah, and, in doing so, defendant Toeteh struck him on the shoulder with a stick. Then I said to Chief Crajada, ‘You are the Chief here and nothing wrong should go on here in your presence. How is it that you have not said anything to your messengers?’ He said, `Umph.’ Then I said to him, `What do you mean by umph? Why not talk?’ Then I left him since he would not say anything but umph, and the messengers were still beating Flarn Yonnoh Teah with yellow haw sticks. Then he yelled out to us and said, ‘You Wehjah people, do come to my rescue as the Seconh people will kill me.’ Just in that time one of the defendants went around the town and brought a bunch of palmnuts, tied it and hung it on one shoulder and they brought two more and tied them on one rope and hung one down in his back and the other lying in his chest. Then they got an old drum out the town and placed a rope on it and placed it on his neck, and they went around the town and got an old 3/-basin, placed a rope through it, and laid it on the drum. Then they half split a piece of stick and placed it around his waist to pinch him and he called out again for us saying that the Seconh people would kill him. As soon as we got home and commenced to eat we heard the report of a gun. Tenteah ran to Mrs. Wah and told her that Flarn Yonnoh Teah had killed himself. She said, ‘What you mean, Teah whom I have just left at your town? All right. There is a paddle. Go to the water side. My canoe is there. Go over the river and tell the Wehjah people of the happening.’ Then all of us went to Tenteah’s place and when we got there we met Flarn Yonnoh Teah, whom it was said had killed himself, lying in front of the door of Tenteah’s house with his head lying on the facing of the door, his body in the house with a gun between his legs and his big toe on the trigger lying on his side and the gun not even close to his mouth. Then we went up to him and looked in his mouth and saw no shots or even effects of shots. We felt behind his neck and there was no sign of shots there. His tongue was clean as mine, no powder whatever on it. I went to Tenteah and asked him how come that Teah was dead, and a gun lying on his breast when I went home for the articles that we promised to give him. He said to me, `If Flarn Yonnoh Teah stole my goat and is dead, is there palaver for that and will that end the goat palaver?’ I said, ‘All right. I simply asked this question to hear what you and Mr. Roberts had to say in the premises and, since you have given me an answer, I am going.’ Then I returned home. . . . That is what I know.”

The defense cross-examined the witness :

“Q. The Republic of Liberia charges the defendants in the dock of having killed decedent. Can you really say upon oath to the court and jury definitely that decedent was really murdered by the defendants named in the indictment?

“A. After we tried the case, and I witnessed the treatment that was given decedent for which we offered those articles that I mentioned and we left decedent in the care of prisoner Tenteah until the next day when those articles which we promised would be brought and given over to them and we were not home quite half an hour when we heard the report of a gun and when we went back decedent was dead lying in Tenteah’s house door, then that is the presumption.

“Q. You said the decedent was beaten by prisoners. The four bunches of palmnuts that they tied around his body, were they arranged before he was beaten?

“A. They started beating him before Mrs. Wah left the scene and when she called their attention to it, they said that she had nothing to do with it. This made her angry and she left. After she had gone one of the defendants struck decedent with a stick on the back of his neck. Another put the palmnut bunches on him.

“Q. Did you examine the corpse of decedent and if so what was its condition, i.e., did it have any indications of shots about it?

“A. I examined the corpse and did not see any indications of shots.

“Q. What marks of violence did you discover on it, if any?

“A. I discovered on the body a large knot on one of his sides and a large knot on the back of his neck.” See record, sheet one, two, and half of three, second day’s session, witness Pubah’s testimony.

Witness Bouy Farley took the stand and testified as follows :

“Then Flarn Yonnoh Teah said to us, ‘I told these people that I have not stolen this goat and yet they are ill-treating me, and which will kill me. Therefore, I shall agree that I stole it that I will not die.’ Then a messenger by the name of Nesieah struck him with a stick on the side below his ribs. Then we went home. As soon as we got home, we heard the echo of the gun. Then we began to wonder who had gone to hunt from Mr. Roberts’ place. Then Tenteah ran to Mrs. Wah and told her that Flarn Yonnoh Teah had killed himself with a gun. She advised him to go across the river and tell us. He refused. She said, ‘Well, I have a Wehjah boy by the name of Kordruh and I shall send him over there to tell them.’ And she did so, and we sound the war drum and we went over there. When we got there we met decedent’s body lying in the front door of Tenteah’s house. Then we asked Tenteah, ‘How was it? Did they not say that Flarn Yonnoh Teah had killed himself. Here is he lying on his side with a gun between his legs just as quiet as ever and not having fought the least as one who has killed himself. A chicken even fights when killed and more so a human being. Here his tongue is just as natural as our tongue.’ Then Tenteah answered and said, ‘Why do you ask me such a question? If a man’s goat is lost and Flarn Yonnoh Teah dies, is there any palaver growing out of it?’ We then got angry and left the place. That is what I know.”

The defense cross-examined the witness :

“Q. You said that decedent is dead and that the three prisoners enumerated by you killed him?

“A. Yes, Tenteah, Toweh and Nesieah are defendants who killed him.

“Q. Were you present at the happening?

“A. I was present when the defendants whom I mentioned flogged him and he said to us that this flogging would kill him. Then we promised to pay some money and when we went for money, while we were there, he died.

“Q. From this you give statement of, you gather that he died from the flogging?

“A. Yes.” The court questioned the witness:

“Q. You said that defendant Tenteah is one of the murderers of decedent. Will you please state, for the benefit of the court and jury, what part did he play in the affair?

“A. Because Tenteah was the one whom the gun belonged to and said Flarn Yonnoh Teah killed himself, and there were no indications of gun shots- anywhere about his body.

“Q. Did he take any part in the flogging of decedent while you were present?

“A. Yes, he struck him on the shoulder.

“Q. Where was Clan Chief Crajada when this maltreatment you referred to was going on?

“A. He was sitting there on the bench.

“Q. Did I understand you to say that three messengers joined in the flogging or maltreatment referred to? If so, whose messengers were they, if you know?

“A. They were Clan Chief Crajada’s messengers.

“Q. Did he try to stop them?

“A. He said nothing to them whatever but only laid back on the bench where he was sitting.”

Witness W. B. Kennedy took the stand and testified to wit: “I went to Cedor to hold an inquest over the body of the said Flarn Yonnoh Teah. It was reported that he had died by shooting himself with a gun, but in examining the body I did not find any indications or effects of gun shots. He was lying down in one of the doors to a but with his head on a stick and the big toe of his left foot on the trigger of a gun, the mouth of which was in his mouth, but there were no signs of powder anywhere about his mouth, nostrils and ears. After which, I called the jurors, took the gun from the position where it was in his hands. That is all I know.” See record, sheet five, witness Kennedy’s testimony.

The defendants’ counsel, in keeping with their plea of not guilty, outlined the theory of their defense and introduced witnesses who were also qualified and testified.

Witness L. B. Roberts took the stand and said inter alia:

“One evening Tenteah came from his farm and greeted me and told me that he had lost a goat, and was glad that I had come to town. So he came to let me know that he wanted to go into the native ordeal. I said, ‘All right. That is your custom. I am not Chief. You will have to go to some Chief,’ being of opinion he would go off to call some other Chief, not having the least belief that he would call the Chief right there. A couple of days afterwards, he came back and said that he came to call me as the Chief had come, and meanwhile Mrs. Minnie Wah came up and hailed me, saying that my man had been to call her saying that he would go into their ordeal. Then the man who tried the ordeal said that it caught Wehjah. Then a Wehjah man who disputed it came up and carried his leg to be tried upon and, after trying it, said that he was satisfied that it did catch Wehjah. Just after that Flarn Yonnoh Teah got up and carried his leg and came off, saying that he was satisfied that it did catch him. Then Mrs. Wah told decedent’s brother and the other Wehjah people to go and council over the matter. When they returned then Pudah, decedent’s brother, got up and said, ‘All right, Tenteah, do not allow the Chief ‘to carry my brother. I am going to let him remain with you and I shall bring you a girl and we shall be brother-in-law. After this, saying I was not well, I left Mrs. Wah there on the scene and I went on home, and my girl went to burn her farm. When Mrs. Wah came, she met my girl on the piazza. I was in the room and she asked for me. I answered and told her that I was not feeling too good. She asked for matches and tobacco. I gave it to her and she went, and I went back and laid down. When my boy came from the town I asked him, ‘What was the people doing?’ He said that the people had made peace and that Tenteah was cooking for them in order that they eat and he went and crossed them. About 3:30 p.m. lying down I heard the report of a gun. Then I jumped up, put on my trousers and in crossing the fence, between their town and my house I saw the old lady hollering for me. As soon as I got there, I saw the blood running, so I made a few paces backwards. Then I looked around and saw two of my boys coming, and I called them and sent them in town to the county attorney to tell him that I did not have any paper there to write, but a man there had shot himself and in passing tell Mrs. Wah to come, and I sent for the same Chief who had been there that morning and the Wehjah people. Mrs. Wah came. She met me home and asked, ‘What was the trouble?’ I told her to come on and see as I had not witnessed such a thing before in my life. She went up to the house and looked at him, because the closest I went was to stand off, and she came back and said that the man had a gun in his hand, and she asked me what I would do. I said, ‘I have sent to town to inform the county attorney, and I shall not do anything until I have heard from him.’ She went home. She came back at about 12:00 noon Sunday, and asked me what I would do with the man as she thought it would be wise for me to send a note to Jacktown to the Longs to come and do something with him. Meanwhile, when I looked down the road I saw the coroner coming with twelve jurymen to hold the inquest. I carried them to the town where the body was. The coroner went in the house and took the gun from him and passed the examination and, when through, turned him over to be buried and said that we should send for his people to do so. They came down to my place and from there came on to Greenville. That is all I know.”

The prosecution cross-examined the witness :

“Q. Did decedent die on the same day the ordeal was administered?

“A. Yes, that evening.

“Q. Had the . Wehjah people gone across the river from your town before decedent died?

“A. When the alarm of his death was made and I went there, they were not there. They had gone.

“Q. What was the interval between the administration of the ordeal and the death of decedent?

“A. About two hours.

“Q. Upon your oath as a witness for the defense, can you say positively that the defendants did not kill decedent?

“A. I can’t say.” See record, sheets six and seven, second day’s session ; sheet one and part of sheet two, third day’s session, witness L. B. Roberts’ testimony.

Witnesses Wruewonh and Sammu also deposed for the prisoners, but as their testimony is only what was told them by witness L. B. Roberts it is not included, being for the most part hearsay evidence.

The plaintiff and defendant having rested oral testimony, the prosecution offered in evidence a written document, marked “G” by the court, which was the coroner’s jury’s verdict, which was duly filed and recorded.

On the fifteenth day of August, 1938, the court rendered final judgment. The prisoners excepted and filed their bill of exceptions, and it is by this bill of exceptions that the case is before this Court for final adjudication and determination. (See final judgment and bill of exceptions.)

From the record certified to us, upon which we are now reviewing this case, there is no evidence apparent to convince us that Crajada, one of the defendants, participated in the cruel beating which led to the death of Flarn Yonnoh Teah, the decedent; but rather that he was present and, as Chief, impliedly endorsed the actions of his messengers who perpetrated this diabolical act which resulted in the death of the decedent, Flarn Yonnoh Teah. Crajada, therefore, ought to have been tried as an accessory before and after the fact and not as a principal. But, as the error was not taken advantage of in the trial of this case in the court below, we are powerless to remedy it, but simply refer to it for the future guidance of our trial courts and their prosecuting officers.

From the record of this case, as was brought out by the testimony of all of the witnesses for the prosecution as well as for the defense, it would appear that the decedent died as a result of the doing by appellants of an illegal act; for, decedent having been accused of having stolen a goat, no effort was made to ascertain the truthfulness or falsity of the action by any legal evidence, but rather resort was had to the illegal and abominable method of trial by ordeal which this Court has repeatedly held to be unconstitutional and therefore illegal. The principle of law is :

“[I]f an unforeseen consequence ensue from an act which is in itself unlawful, and in its original nature wrong or mischievous, the actor may be criminally responsible for such consequences, although against the party’s wish. 1 Wharton, Criminal Law § 107, at 142 (11th ed. 1912). Cf. Id. § 157, at 201-04.

That the administering of sassy-wood, or trial by or-deal, is an illegal act has been repeatedly decided by this Court. For example, in the case Jedah v. Horace it was held that

“With regard to the administration of sassy-wood, which is in some cases an ordeal dangerous to life, we are of the opinion that while it is provided that the native and district courts shall administer the native customary law, we cannot admit the legality of a proceeding which is evidently intended to extort a confession from the accused, and which is in conflict with the organic law of the state, which declares that ‘no one shall be compelled to give evidence against himself.’ (See Const. Lib., art. I, part of sec. 7.) ” [1916] LRSC 12; 2 L.L.R. 265, 269 (1916).

Said opinion continues :

“Mr. Bouvier defines an ordeal to be ‘an ancient superstitious mode of trial.’ (Bouv. L. D., vol. 3, Ordeal.) Any custom, which panders to the superstition of the natives of the country is, in our opinion, contrary to the genius of our institutions and should therefore be discouraged.” Ibid.

The doctrine was again reaffirmed in the case Posum v. Pardee in which case the opinion above referred to was fully reproduced for the guidance of all our courts. In that case it was held that

“In addition to the prohibition against the practice of administering sassy-wood, and adopting other ordeals for the extorting of truth, we desire here to record a further objection as the practice involves the obsolete trial by wager.” 4 L.L.R. 295, 306 (1935).

After careful examination and proper digesting of the evidence for the prosecution in this case, we have come to the conclusion that the state has proven the case beyond a rational doubt, because the evidence is clear and the trial was regular. We are therefore of the opinion that the judgment of the lower court should be affirmed ; and it is hereby so ordered.

Judgment affirmed.