ALLEN N. YANCY and JOHN B. DELANEY, Appellants, v. REPUBLIC OF LIBERIA, Appellee.

APPEAL FROM THE CIRCL IT COURT OF THE FOURTH JUDICIAL CIRCUIT, MARYLAND COUNTY.

Argued May 11-13, 1936. Decided May 15, 1936.

1. The party accused should be fully apprised of the nature and identity of the offense with which he is charged.

2. Hence, the names of third parties, if they be necessary to the consummation of the offense, or constitute a part of its description should, if known, be inserted.

3. Hearsay evidence may be written or oral ; and is incompetent to establish any specific fact which is susceptible of proof by witnesses who can speak from their own knowledge.

4. Hence as a general rule, all hearsay reports of transactions whether verbal or written given by persons not produced as witnesses should be rejected.

5. For, to admit such evidence whether oral or written tends to impose unsworn testimony on the tribunal, deprives the opposite party of cross-examination, and the court of the opportunity of observing the deportment and demeanor of the witness upon the stand under the test of cross-examination.

On appeal from conviction of slave trading on a second trial, judgment reversed.

D. B. Cooper and P. Gbe Wolo for appellant. The Attorney General for appellee.

MR. JUSTICE RUSSELL delivered the opinion of the Court.

This cause comes up on appeal from the Circuit Court of the Fourth Judicial Circuit, Maryland County, at its February term, 1935.

The indictment charging the defendants, now appellants, with the crime of Slave Trading stated inter alia:

“That Allen N. Yancy and John B. Delaney, defendants, residents of the City of Harper, in the county and Republic aforesaid, to wit: On the thirty-first day of October anno doinini nineteen hundred and twenty-six and on divers other days between the said thirty-first day of October anno donzini nineteen hundred and twenty-six and the thirty-first day of December anno donzini nineteen hundred and twentyseven, in the County and Republic aforesaid, having combined and confederated in and upon the bodies of two hundred (200) men of the Wedabo section of the country in the county and Republic aforesaid, whose names are to the Grand Jurors unknown the said Allen N. Yancy and John B. Delaney, defendants aforesaid, then and there did unlawfully, forcibly and fraudulently catch, ship, carry off and deliver against their will into the custody of certain persons at Fernando Poo, Spanish Guinea, on the West Coast of Africa, whose names are to the Grand Jurors unknown, said certain persons at Fernando Poo, as aforesaid not having the legal right to hold or detain the said two hundred men of the section of the country and of the county and Republic aforesaid, whose names are to the Grand Jurors aforesaid unknown, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the Republic of Liberia.”

To this indictment defendants, upon being arraigned, pled not guilty. A jury was duly impanelled to try the issue joined. The trial concluded, the petit jury after due deliberation, brought in a verdict of guilt against defendants. Upon the rendition of said verdict, defendants excepted to same and in due course tendered a motion in arrest of judgment, which motion is as follows:

“(1) Because the indictment upon which the defendants stand charged is wanting of sufficient certainty in its material parts, to wit : It charges defendants with having on the thirty-first day of October A.D., 1926 and on divers other days be-tween the said thirty-first day of October A.D., 1926 and the thirty-first day of December A.D., 1927, in the county and Republic aforesaid, combined and confederated in and upon the bodies of two hundred (200) men of the Wedabo section of the country in the county and Republic aforesaid, the respective names of whom are are [sic] to the Grand Jurors unknown, . . . that notwithstanding the premises, the records of this court exhibit the fact that on the trial of said cause Paramount Chief Jeh and Chief Zebo, respectively, stated on oath the names of certain of the persons who were alleged to have been unlawfully and forcibly caught and shipped from Wedabo to Fernando Poo by the said defendants; which statements of theirs contradict the allegations and averments of the Grand Jurors with respect to the ignorance of the names of the private prosecutors in this cause. Defendants submit that it is a settled rule of criminal law that where an indictment charges an offence as having been committed upon private prosecutors or third persons who are to the Grand Jurors unknown, and the evidence on the trial names the said parties or any of them, no conviction can be had under such a charge; but that the accused is discharged without day. . . .

“(2) And also because the indictment is insufficient, uncertain, and indistinct in that it fails to state the names of the persons injured so as to have sufficiently and intelligently apprised the defendants at Bar of adequate proof of the charge against them, within their conception and understanding of the allegations as laid against them, so as to have placed them in a position to enjoy the benefits and safeguards of their Constitutional rights and privileges under the laws of the Republic of Liberia with respect to confrontation.

“Wherefore defendants respectfully pray that the verdict of the impanelled jury in this case be set aside and vacated, and the judgment in said case be arrested ; defendants discharged without day.”

The court below overruled said motion upon the grounds substantially: (a) That a motion in arrest of judgment lies for defects appearing upon the face of the indictment; (b) That if, however, the name of the party (that is the party injured) be unknown, he should be described as “a person to the jurors aforesaid unknown.” The judge upheld the indictment and denied the motion in arrest of judgment. Accordingly, defendants excepted to said ruling and upon their being thereafter sentenced to a fine of three hundred fifty dollars each or imprisonment in the common jail for a term of one year and three months, they also excepted to said judgment and filed a bill of exceptions of fourteen counts. Count twelve thereof excepted to the court’s denying the motion in arrest of judgment, and count thirteen excepted to the final judgment, based on the verdict of the petit jury which was in turn based upon the indictment and the evidence adduced in support thereof.

From a cursory glance at the indictment it is apparent that said indictment was drawn up with gross carelessness and indifference, and when it was attacked in the motion in arrest of judgment, same should have been vacated in order that the prosecution might have prepared a better indictment. We have to remark that the Wed abo section of the Liberian Hinterland is situated in Maryland County; the indictment in this case was drawn up in February, 1931 and the case was tried in February, 1935, quite four years afterwards; within that time the prosecution had every opportunity to ascertain from the witnesses for the State the names of some, if not all, of the boys who are alleged to have been so forcibly shipped to Fernando Poo.

In Ruling Case Law, it is held :

“Upon the principle that the party accused should be fully apprised of the nature and identity of the offense with which he is charged, it is frequently necessary to set out the name of the person against whom the offense was committed, if known, not as a substantive part of the offense itself, but as a circumstance descriptive of its identity. For the same reason, the names of third persons, if they be necessary to the consummation of the offense, or constitute a necessary part of its description, should, if known, be inserted.” 14 R.C.L. 183, § 28.

In the case Brewer v. Republic, this Supreme Court at its January term, 19oo, held that a motion in arrest of judgment will be sustained where the indictment is defective in material parts.

“For this purpose the charge must contain a description of the crime or misdemeanor of which the defendant is accused, and a statement of the facts by which it is constituted, so as to identify the accusation, etc.” I L.L.R. 363, 365.

In an effort to support this contention of theirs, appellants offered a certificate from the Liberian Consul General at Fernando Poo admitted in evidence, and marked by the court “B” which he argued supported his contentions that there had not been shipped from Harper the number of laborers alleged to have been exported.

With respect to said paper the court was compelled to call the attention of counsel, during the arguments, to the fact that said paper could not be accepted as evidence inasmuch as it was admitted in violation of the hearsay rule since the declarant had never been subjected to the ordeal of cross-examination; and there was patent on the face of the document a big hiatus which would undoubtedly have been explained had the maker of the document been cross-examined. The principle is :

“The term ‘hearsay’ is used with reference to that which is written, as well as to that which is spoken ; and, in its legal sense, it denotes that kind of evidence which does not derive its value solely from the credit to be given to the witness himself, but rests also, in part, on the veracity and competency of some other person. Hearsay evidence, as thus described, is uniformly held incompetent to establish any specific fact, which, in its nature, is susceptible of being proved by witnesses who can speak from their own knowledge. That this species of testimony supposes something better, which might be adduced in the particular case, is not the sole ground of its exclusion. Its extrinsic weakness, its incompetency to satisfy the mind as to the existence of the fact, and the frauds which may be practised under its cover, combine to support the rule that hearsay evidence is totally inadmissible.

“. . . Subject to these qualifications and seeming exceptions [to be later examined,] the general rule of law rejects all hearsay reports of transactions, whether verbal or written, given by persons not produced as witnesses. The principle of this rule is, that such evidence requires credit to be given to a statement made by a person who is not subjected to the ordinary tests enjoined by the law for ascertaining the correctness and completeness of his testimony; namely, that oral testimony should be delivered in the presence of the Court or a magistrate, under the moral and legal sanctions of an oath, and where the moral and intellectual character, the motives and deportment of the witness can be examined, and his capacity and opportunities for observation, and his memory, can be tested by a cross-examination.” I Greenleaf, Evidence, §§ 99-99a; Cummings v. Republic, [1935] LRSC 9; 4 L.L.R. 284, 2 Lib. New Ann. Ser. 122 (1935).

And the Court desires here to make it clear that although a written certificate may, in some instances, be received for evidential assertions it cannot be so received for those of a testimonial character. For :

“A statement otherwise objectionable as hearsay does not become competent by being reduced to writing. . . . An unsworn written statement is equally inadmissible under the rule excluding hearsay evidence, although the form be judicial, as in affidavits, answers to interrogatories, certificates, depositions, or pleadings; official, as in records kept by municipal officers or by private associations, the reports of public boards, bodies, or officials; or of officers of private corporations; or mercantile, as an account of sales, or a receipt, or books of account; or the more fugitive form of letters, memoranda, or telegrams. In other words the rule of the exclusion applies generally to all forms of written hearsay.” 16 Cyc. 1214 et seq.

However, in view of the patent variance between the indictment and the evidence to which attention has been called above, and in view of the fact that the case has been once remanded, and the prosecution neglected to correct all the errors made during the first trial, we have decided to refrain from making it mandatory that a new trial should be had.

In conclusion it is our opinion that the motion in arrest of judgment should have been granted, and that not having been done, the judgment of the court below should be reversed; and it is hereby so ordered.

Reversed.