Cite as FSM v. Ruben, 1 FSM Intrm. 34 (Truk 1981)

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     This, the first criminal action ever filed with the new Supreme Court of the Federated States of Micronesia, requires careful consideration of the right of the occupant of a house to repel an intruder from the house and drive the intruder away.  It is complicated by the fact that the intruder is a relative, the brother-in-law, of the defendant.

     On the night of July 16, 1981, defendant Singetosy Ruben and his wife and their four small children were in their house sleeping.  Sometime after midnight, Noboru Terry, the brother of defendant's wife, Samiko, approached the house. Noboru Terry had been drinking that night and his behavior was rather unruly. Specifically, Mr. Terry repeatedly and loudly called out for the defendant's wife and Mr. Terry's sister, Samiko, shouting that she should bring him some food. Receiving no response, he finally went to the front door of the house and kicked it. Almost simultaneously, he also knocked a louver out of a

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window.  The louver fell and broke with a crash.  Hearing  these noises, Singetosy Ruben turned the lights on and came  out of the bedroom.  Wielding a machete, he confronted Mr. Terry.  For this and his ensuing actions, defendant was charged with the crime of assault with a dangerous weapon under 11 F.S.M.C. 919.

     There is some conflict in the testimony.  The first factual issue is whether Noboru Terry actually entered the house.  Both Mr. Terry and the defendant agree that Terry kicked the door open and entered the house, where he was confronted by the defendant.  However, Rose Leuo, a neighbor, testified that Mr. Terry did not actually step inside the  house or even actually open the door with his kicks, but that instead Mr. Ruben opened the door and confronted Mr. Terry on the front porch of the house.  Because Mr. Terry himself  stated that he entered the house and also because Ms. Leuo's own testimony suggests that she may be mistaken in her recollection of this point, we conclude that Mr. Terry did indeed enter the house and was confronted there by Mr. Ruben.

     Ms. Leuo lives next door to Singetosy Ruben's house.  She watched the entire scene and testified that the door was not opened by Mr. Terry's kicks.  However, she also testified that she saw Mr. Ruben leave his bedroom with his wife trying to stop him.  She explained this saying that when both front doors are open she can see directly

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into the Ruben's house to the bedroom.  She also later indicated that she can see to the bedroom door through a  window in the Ruben"s house but her original explanation suggests that she may in fact have seen Mr. Ruben by looking through the Ruben's open front door and that her recollection that the front door was not open is simply mistaken.

     The defendant admits that he encouraged Mr. Terry to  leave the house by wielding his machete in a threatening manner.  In fact, Mr. Terry was cut on the chest by the defendant.  He exhibited to the Court a scar approximately three (3) inches in length.  This wound had nearly healed by the time of the trial, some three (3) months after the incident.  The wound appears to have been significant but not severe or cataclysmic.  Mr. Terry did not receive medical treatment.  He went to the Truk hospital seeking treatment but when he found nobody there to treat him, he left.  The wound healed without medical care.

     The second disputed fact involves Mr. Ruben's conduct outside his house.  Mr. Ruben states that after Mr. Terry left the house, Mr. Ruben remained on the porch, only watching to see that the intruder should not return.  The other two witnesses, Mr. Leno and Mr. Terry, recall otherwise.  Mr. Terry recalls being on the ground with Mr. Ruben attacking  him.  Ms. Leuo testified that Mr. Ruben chased Mr. Terry some fifty feet to the area of a men's house and took several

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additional swings at him with the machete.  We need not determine which of these versions is accurate for we conclude that even under the version offered by witnesses Leuo and Terry, the defendant's actions constituted reasonable defense of his family and his household.

     The general rule is that a person can use no more force than is reasonably necessary to protect himself, his family and his home and property from an intruder, and to expel the intruder.  The government maintains that because the intruder was unarmed and offered no personal violence, the use against him of such a dangerous weapon as a machete is inherently unreasonable.  There is no legal requirement that the person protecting his home and his family must shift through the various possible weapons that might be available to determine the one most perfectly suited for the particular occasion.  Indeed, the reality is commonly as it was here where Mr. Ruben stated that when he grabbed his machete, he was unsure who was kicking in the door or what weapon that person might have.  Use of a dangerous weapon, even for purposes of self-defense, exposes the defender to a greater legal risk since it may escalate the violence and result in excessive and unreasonable force.  In other words use of a dangerous weapon to defend oneself may substantially increase the likelihood that the harm dealt to an intruder may be greater than it would otherwise have been with a less lethal weapon.

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This in turn may increase the possibility that the force used by the defender will be found to be unreasonably severe.  Nevertheless, there is no automatic prohibition against use of a dangerous weapon, even against an intruder without a weapon so long as the weapon is not used in a deadly fashion and the actual force employed is not more than would  be reasonably necessary for purposes of protection.

     In this case, the defendant brandished a machete and inflicted a moderate cut on the intruder's chest.  In the Court's judgment, the weapon was not being used in deadly fashion and, although perhaps more force was employed than was absolutely essential, the force used was not more than could  be considered reasonably necessary to expel an intruder from one's house.  Even if, as one witness said but the defendant denied, the defendant did then chase the intruder some fifty feet away from the house and threaten him further with his machete, we can not find that this was more force than was reasonably necessary to assure that there would not be a  return by the intruder.

     Finally, we must consider whether the familial relationship between the defendant and intruder should alter the result.  The Government contends that the analysis normally applicable to determine the legality of action taken by a possessor of property to protect family and home is not appropriate here because the intruder was no stranger but instead was the defendant's brother-in-law.

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     The defendant readily admits that he has special obligations to his brother-in-law.  He admits that under  custom the defendant's children are also to be considered children of his brother-in-law.  He further agrees that as a matter of customary law he is not to attack his brother-in-law.  He also acknowledges that as a general proposition his own house is that of his brother-in-law and that his brother-in-law should have free access to it.

     He did not admit however, and in fact explicitly denied, that the customary rights of the brother-in-law extend to  entry of the house at 1:00 A.M. in drunken condition  destroying property, awakening and frightening the children  and causing all in the house to be concerned about their personal safety.

     The fact that one may have a general privilege to enter property does not necessarily mean that the privilege may be exercised at all times and in every conceivable manner.  See Federated States of Micronesia v. Boaz, 1 FSM Intrm. 22 (Pon. 1981).  The Government offered no evidence in support of the proposition that the timing and manner of Mr. Terry's entry into the house was privileged and in accord with customary-law so that the defendant had no right to defend against the conduct.  Under 11 F.S.M.C. 108(3), the party asserting customary law "has the burden of proving by a preponderance of the evidence the existence, applicability and customary effect of such customary law."

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The Government in this case did not meet that burden.  The Court can not justifiably find that customary law granted Mr. Terry a privilege to come into the house in the time and  manner that he did nor that custom barred the defendant from using force to terminate the intrusion.

     It is undoubtedly true that family relationships are highly valued throughout Micronesia.  Familial relationships are at the very core of Micronesian society and are the source of numerous rights and obligations which influence practically every aspect of the lives of individual Micronesians.  These relationships are an important segment, perhaps the most important component, of the custom and tradition referred to generally in the Constitution, Article V, and more  specifically in the National Criminal Code, 11 F.S.M.C. 108 and 1003.  This Court has no desire to disregard or minimize the importance of such relationships.

     It would serve no proper purpose, though, to ignore the sad fact that, on occasion, one family member may pose a very real physical threat to another.  In that undesirable situation, customary obligations may properly restrain the natural instincts of the threatened family member to defend himself.  Still, it is difficult to conceive of a rule of law holding that under absolutely no circumstances, even in the gravest emergency and for the purpose of self-preservation may one family member raise a weapon against another.

     In this case, one family member, drunk and wild in his conduct, broke a window and kicked in the door to gain entry

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in the middle of the night.  The children in the house were frightened and crying.  In this context, it was not unreasonable for the defendant to believe he should take action to remove his brother-in-law from the house and immediate area to avoid further damage to the house and possible injury to  family members.

     The Court is willing to assume that the homeowner whose brother-in-law is seeking to enter the house should as a  matter of customary law go lightly and use less force than he might to expel some other intruder.  Here though, the evidence suggests that the defendant did moderate his force and actions in deference to the fact that he was dealing with his brother-in-law, not merely a stranger.  If he had a right to use any force, and this Court finds that he did under the circumstances, the force employed by Mr. Ruben was measured  and controlled, not calculated to expose Mr. Terry to great bodily injury or possible loss of life. With Mr. Terry in a drunken condition and without a weapon, Mr. Ruben could surely have inflicted lethal damage upon Mr. Terry had he not acted with restraint.

     One last comment.  On the day set for trial, the  defendant appeared before the Court and tendered a plea of guilty.  On questioning, it became apparent that he was  seeking to plead guilty because he believed he had violated custom by striking his brother-in-law.  While this Court has now found that defendant's conduct did not violate the

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criminal law and that defendant owes no debt to society in general, this decision-does not suggest that the defendant has necessarily fulfilled all customary obligations he may owe to his brother-in-law arising out of this incident.  Mr. Ruben's concern about his relationship with his brother-in-law was evident in Court and we urge Mr. Ruben, despite this criminal law acquittal, to take steps at once to fulfill any customary obligations he may have to Mr. Terry.

     For the above reasons, it is adjudged that defendant is not guilty and he is therefore acquitted.

So ordered as of the 2nd day of November, 1981.

Chief Justice
Supreme Court
Federated States of Micronesia