THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Kosrae v. Tolenoa ,
4 FSM Intrm. 201 (Kosrae S. Ct. Tr. 1989)

[4 FSM Intrm. 201]

KOSRAE STATE,
Plaintiff,

vs.

MOLID TOLENOA,
Defendant.

KOS. CRIM. NO. 76-89

JUDGMENT

Lyndon L. Cornelius
Associate Justice
Kosrae State Court

[4 FSM Intrm. 202]

APPEARANCES:
For the Plaintiff:          Aliksa B. Aliksa
                                     Office of the Attorney General
                                     Kosrae State
                                     Tofol, Kosrae  96944

For the Defendant:     Patrick Olter
                                     Office of the Public Defender
                                     Kosrae State
                                     Tofol, Kosrae  96944

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HEADNOTES
Criminal Law and Procedure - Larceny
     The crime of grand larceny requires proof beyond a reasonable doubt of the stealing, taking or carrying away of the personal property of another, in the value of $50 or more, without the owner's knowledge or consent, and with the intent to convert it to one's own use.  Kosrae v. Tolenoa, 4 FSM Intrm. 201, 202 (Kos. S. Ct. Tr. 1990).

Criminal Law and Procedure - Larceny
     To prove larceny, the prosecution generally need not prove that the victim had an unassailable right to possession in the items stolen, only that the defendant had no greater right to possession of the stolen items.  Kosrae v. Tolenoa, 4 FSM Intrm. 201, 203 (Kos. S. Ct. Tr. 1990).

Criminal Law and Procedure - Larceny; Custom and Tradition - Kosrae; Property - Personal
     Because farming of short term crops, such as sugar cane, on someone else's land is not uncommon in Kosrae, the fruits of such farming are considered the personal property of the person planting them.  Kosrae v. Tolenoa, 4 FSM Intrm. 201, 204 (Kos. S. Ct. Tr. 1990).

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COURT'S OPINION
LYNDON L. CORNELIUS, Associate Justice:
     This case came before this Court for trial on December 14, 1989.  Defendant was charged with one count of grand larceny in violation of KC Section 13.406. Defendant pleaded not guilty to the charge.

     The crime of grand larceny requires the stealing, taking, or carrying away of the personal property of another, of the value of $50.00 or more, without the owner's knowledge or consent, and with the intent to convert it to one's own use. In order for the defendant to be convicted of the above named crime, it is necessary that the Government (plaintiff) prove beyond a reasonable doubt all of the essential elements of the crime.     

[4 FSM Intrm. 203]

FACTS
     In reviewing the testimony of each witness who appeared for the Government, Court finds that Nena L. Kilafwasru bought five bundles of sugar cane from the defendant for $50.00 at a sugar cane farm in Tafunsak.  He also accompanied the defendant to the farm and picked up the five bundles of sugar cane.  The witness was under the impression at all times that the farm belongs to the defendant.

     The second witness for the plaintiff, Ashley Jackson, testified that the five bundles were cut and removed from his farm on the 26th of July, of this year (1989).  In his testimony the land in which his sugar cane farm is situated belongs to one Teroa Tolenoa (the father of the defendant).  Teroa planted a few sugar canes and later went to Ashley to tell him that he planted a few sugar canes on his own land, and transferred ownership of the farm to Ashley and further told Ashley to expand the farm and to tend the farm.  Ashley also stated he and his immediate family planted more sugar cane and tended them until the sugar canes reached a height of eight feet.  He saw no other people tending this farm.

     As to the defendant, he took the stand to testify on his own behalf.  Defendant testified that he cut five bundles of sugar cane from his farmland across from Julian's gas station because the sugar cane belongs to his father Teroa and the land is theirs.

DISCUSSION
     The first issue is whether defendant took the personal property of another within the meaning of KC 13.406.  Generally, the prosecution need not prove that the victim had an unassailable right to possession in the items stolen, only that defendant had no greater right to possession of the stolen items.  50 Am. Jur. 2d Larceny 22, at 174 (1970).  Here, the defendant argued that he severed and sold the sugar cane (five bundles) in good faith because the realty belongs to his father.  But the circumstances lead the Court to believe that the sugar cane in question belongs to Mr. Jackson and not the defendant.  Mr. Jackson is the one who planted the sugar cane and had the control, care and management of the property at the time the sugar canes were taken.  Mr. Jackson further testified that only he himself and members of his immediate family and no one else had the control, care and management of the sugar cane farm up until the day (July 26, 1989) the five bundles were severed.

     Sugar cane farming requires intense cultivation, which cultivation must have put defendant on notice that the sugarcane was not his.  Sugar cane will not grow properly without such cultivation, and since the evidence reflects that defendant did not cultivate the sugar cane, he could have no reasonable belief that it was his own.  Therefore, defendant's "good faith" argument is not supported by the facts.
  
     The second issue is whether defendant took the personal property of another within the meaning of KC 13.406.  A special problem is presented in

[4 FSM Intrm. 204]

this case because the subject of the larceny is growing crops.  At English common law, growing crops were deemed part of the land and could therefore not be the subject of larceny.  See 50 Am. Jur. 2d Larceny 72, at 242.  That rule subsequently proved unworkable because a thief who cut the crops and laid them on the ground for only a moment could be convicted because he had severed the crop from the land, thereby creating personal property which then could be the subject of larceny.  The old rule allowed a thief who cut and carried away the property in a single act to go free.  See id.

     Modern courts in the United States have recognized this discrepancy, and have held that the act of cutting the crops of another is also an unlawful act and cannot absolve the thief from guilt of the crime of larceny.  People v. Williams, 35 Cal. 671.

     This Court holds in concert with the more modern view stated above.  Further, such a rule is more consistent with traditional Kosraean custom.  Kosraeans perceive sugar cane as a short term crop which people plant on lots owned by someone else, with the understanding that the sugar canes are not perceived as part of the land.  Farming of short term crops such as sugar cane on someone else's tract of land is not uncommon here in Kosrae.  Thus, the fruits of such farming are considered the personal property of the person planting them.

     In the case at bar, the real owner, Teroa Tolenoa, who is the father of the defendant, planted a few sugar canes and transferred such interest to one Ashley Jackson.  Mr. Tolenoa clearly transferred a use right to Mr. Jackson when he planted a few and told him to plant more on the same lot.  Mr. Jackson did as he was told and he tended his sugar canes until they were about eight feet or more in height.  Therefore, the sugar cane is the personal property of Ashley Jackson.

     Thereafter, defendant took away the severed sugar canes that were Mr. Jackson's with a value of $50.00 without Mr. Jackson's knowledge or consent and with intent to convert it to his own use.  This is evidenced by his possession of the fruits of the theft, the $50.00 which the defendant received from one Nena L. Kilafwasru.  That $50.00 was later shared with the defendant's brother.
 
CONCLUSION
    As stated earlier, the defendant being charged with grand larceny in violation of KC Section 13.406, all of the essential elements of the crime have been proven beyond a reasonable doubt.  This Court, therefore, finds the defendant guilty as charged.

     Sentencing will be set at a later date.

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