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THE SUPREME COURT OF THE

FEDERATED STATES OF MICRONESIA
Cite as FSM v. Boaz (II), 1 FSM Intrm. 28 (Pon. 1981)

[1 FSM Intrm. 28]

STATE OF PONAPE
FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

SINDEN BOAZ,
Defendant.

CRIMINAL ACTION NO. 1981-502

ORDER DENYING DEFENDANT'S
MOTION FOR JUDGMENT OF ACQUITTAL

     Defendant Sinden Boaz was tried on September 18, 1981 for the crime of burglary under 11 F.S.M.C. 951, and convicted.  He then moved pursuant to Rule 29(c) of this Court's Rules of Criminal Procedure for judgment of acquittal.  That motion is now denied for the following reasons.

     Defendant's motion is based upon his two-pronged contention that there exists in Section 951 a highly technical, but nevertheless fundamental, defect.  Briefly, his two arguments are as follows.  First, he contends that the National Criminal Code enacted by the Congress of the Federated States of Micronesia repeals entirely Title 11 of the Trust Territory Code, including Sections 201 and 203 thereof, declaring assault and battery to be crimes.

     Based upon this premise that there no longer remains any criminal prohibition against assault or assault and battery within the Federated States of Micronesia he then maintains that it was improper for this Court to ground its burglary conviction under 11 F.S.M.C. 951 of the National Criminal Code upon a finding that when defendant entered the house in question, he did so with an intention to commit an assault.

[1 FSM Intrm. 29]

     Neither contention can withstand analysis.  Because this is a new nation in the earliest stages of our jurisprudential development, we here give defendant's arguments perhaps more extended analysis then is likely to be the case for arguments of comparable merit in the future.

     In Federated States of Micronesia v. Albert, 1 FSM Intrm. 14 (Pon. 1981), we considered the interplay between the National Criminal Code and provisions in the Trust Territory Code.  There, we held that under Article XV, Section 1 of the Federated States of Micronesia Constitution a provision of the Trust Territory Code is repealed by a subsequent statutory provision enacted by the Federated States of Micronesia Congress only if the statutory provisions in question are "inconsistent or in conflict."  We further concluded that even if certain provisions of a Trust Territory statute are repealed, other provisions of that same statute may remain intact if the statute, without the deleted provision, is self-sustaining and capable of separate enforcement.

     Under these principles, the fact that the Congress, in exercising its authority under article IX, section 2(p) of the Constitution to define "major crimes" in the National Criminal Code repealed many provisions of Title 11 of the Trust Territory Code by implication, does not lead to the conclusion that all provisions of Title 11 are repealed.

[1 FSM Intrm. 30]

Indeed, because the Congress defined a major crime under the National Criminal Code as one calling for imprisonment of three years or more, 11 F.S.M.C. 104(6), and because assaults as prescribed in 11 T.T.C. 201 and 203 are punishable only by six months' imprisonment, it is clear that under the Albert analysis the assault provisions of the Trust Territory Code are left intact.

     However, defendant maintains that there are other special considerations applicable here which were not considered in Albert.  This argument relies upon a combination of three different statutory and constitutional provisions.  First is Section 102 of the National Criminal Code which states that Title 11 of the Trust Territory Code is repealed "to the full extent of National Government jurisdiction in all matters covered by the provisions of law contained therein."  Since the National Government obviously does not have "major crimes" jurisdiction over 11 T.T.C. 201 and 203 assaults calling for imprisonment of no more than six months, the above language would not appear to repeal those sections.

     The defendant, though, urges another basis for the National Government jurisdiction, which under Section 102 of the National Criminal Code, would work a repeal of Sections 201 and 203.  He notes that article XI, section 6(a)of the Constitution states that the Trial Division of the Supreme Court has "original and exclusive jurisdiction in cases... in which the National Government is a party...." He then

[1 FSM Intrm. 31]

seeks to close this logical circle by pointing to 12 F.S.M.C. 102 which he represents in his brief as stating "that all criminal prosecution shall be made in the name of the Federated States of Micronesia."  Defendant's Brief, page 6.

     By virtue of 12 F.S.M.C. 102, he argues, the Federated States of Micronesia is a party in all criminal cases regardless of whether those cases involve major crimes or not.  If the National Government were a party in all criminal cases, it would then follow under article XI, section 6(a) of the Constitution that this Court would have exclusive jurisdiction over all criminal cases, not just those involving major crimes.  Defendant concludes that it also then follows that the previously quoted language of Section 102 of the National Criminal Code repeals all provisions of Title 11 of the Trust Territory Code.

     This rather tortured argument fails at every critical turn.  Most important, defendant's reading of 12 F.S.M.C. 102 imputes to the Congress a desire to exercise power well beyond its constitutional reach.  It is, at the very least, doubtful that Congress would have the power to require that all criminal prosecutions be in the name of the Federated States of Micronesia.  Article VIII, sections 1 and 2 of the Constitution provide that, aside from powers of "an indisputably national character," only those powers expressly delegated to the National Government are national powers.  The only general delegation to the National Government of powers concerning criminal law is that contained in article IX, section 2(p)authorizing

[1 FSM Intrm. 32]

the Congress to define major crimes and prescribe penalties.  Since the National Criminal Code has defined "major crimes" as those calling for more than three years imprisonment, this "major crimes" provision could not be relied upon as authorization for congressional action making the Federated States of Micronesia a party to "all criminal prosecutions." There appears nothing of "an indisputably national character" in the power to control all lesser crimes.

     Defendant's broad reading of 12 F.S.M.C. 102 would necessarily raise substantial issues as to the constitutionality of that statute.  A fundamental principle of statutory interpretation is that where a statute can be read in two ways, one raising constitutional issues and the other interpreting the language as affecting matters clearly within the constitutional reach of Congress, the latter interpretation should prevail so that the constitutional issue is avoided.  Here however there is no need to apply this principle for the language employed by Congress in 12 F.S.M.C. 102 leaves no doubt that Congress was carefully limiting this provision to conduct of cases in the name of the National Government to cases in violation of statutes within the jurisdiction of the National Government. The statute contains no support for defendant's argument that it requires the National Government to be a party in "all criminal prosecutions."

     With this failure, defendant's chain of argument snaps and there remains no basis for contending that 11 T.T.C. sections 201 and 203 have been repealed.

[1 FSM Intrm. 33]

     We should not conclude without noting the other major fallacy in defendant's contention.  Even if an assault, by itself, did not constitute a crime within the Federated States of Micronesia, it would not follow that a statute providing that the combination of an assault and some other act could not constitute a crime. Defendant's argument assumes that all elements of a crime must themselves be criminal in order for the combination of those elements to be criminal.  This simply is not so.  Defendant cites no authority in support of such an argument and there simply could be none.  Swinging one's fist through the air is not a crime, nor is it a crime to want to strike another so long as that desire is not acted upon.  Yet, swinging one's fist coupled with an intent to strike another obviously can be a crime.

     For these reasons, defendant's motion for judgment of acquittal is denied.

So ordered this 16th day of October, 1981.


                      /s/                        
EDWARD C. KING
Chief Justice
Supreme Court
Federated States of Micronesia