Cite as FSM v. Hartman, 1 FSM Intrm. 43 (Truk 1981)

[1 FSM Intrm. 43]







CR. CASE NO. 1981-1509
CR. CASE NO. 1981-1504


     In each of these cases the defendant is accused by information of burglary in violation of the National Criminal Code, 11 F.S.M.C. 951 and of larceny of property having a value exceeding $50.00 in violation of Section 852 of Title 11 of the Trust Territory Code.  The cases are otherwise unrelated.  In each case the burglary and larceny arose out of the same transaction and formed parts of one plan.

     At arraignment the court raised on its own motion the question of its jurisdiction over the larceny count.  Counsel

[1 FSM Intrm. 44]

were given the opportunity to submit memoranda and to argue orally.  The government's conclusion that the court has jurisdiction was not disputed by the defendants.  The reasoning of the government is that although the court would not have jurisdiction over a case where only a violation of 11 TTC 852 were charged, the charges here of burglary and larceny are so closely related, that one court should hear the case, and avoid double trials.

     The court agrees that it does not have jurisdiction over an information charging only a violation of 11 TTC 852 but it does not agree that when jurisdiction over a violation of the National Criminal Code exists, it can then take jurisdiction of the other charge under a theory of ancillary jurisdiction.

     In summary, the court's reasoning is this:  the National Criminal Code defined major crimes, prescribed penalties, and repealed those portions of Title 11 of the Trust Territory Code which would have otherwise fallen within the jurisdiction of the Supreme Court; and the court is unable to find any authority which would justify the exercise of ancillary jurisdiction.

     The Constitution gives Congress the power to define major crimes, and set the penalty therefor [Article IX, Section 2(p)], and gives the Supreme Court jurisdiction over cases arising under national law [Article XI, Section 6(b)].

[1 FSM Intrm. 45]

The National Criminal Code defines a major crime as "any crime which is punishable by imprisonment for a period of 3 years or more."  11 F.S.M.C. 104(6).  Viewing this alone it follows that the court would have had jurisdiction of grand larceny cases.   11 TTC 852.  Title 11 would have become national law by virtue  of article XV, section 1 of the Constitution, which reads in  part, "A statute of the Trust Territory continues in effect except to the extent it is inconsistent with this Constitution, or is amended or repealed."  (Cf. Secretary of the Interior Order No. 3039, paragraph 4(c), "Laws in effect in each jurisdiction of the effective date of its constitution shall continue in effect until modified or repealed pursuant to the provisions of the constitution or laws enacted thereunder.")

     Such incorporation is not the case however because section 2 of the National Criminal Code expressly repealed Title 11.  Section 2 provides, "Trust Territory Laws Repealed.  Title 11 of the Trust Territory Code is hereby repealed to the full extent  of National Government jurisdiction in all matters covered by the provisions of law contained therein."  [11 F.S.M.C. 109.]

     The National Criminal Code, 11 F.S.M.C. 901, explicitly establishes the exclusive jurisdiction of the National Government over major crimes.  Section 902 then defines major crimes:

     "(a) all crimes punishable by imprisonment for a

[1 FSM Intrm. 46]

period of 3 years or more; and

     "(b)  all crimes resulting in loss or theft of property or services in the value of $1,000 or more,..."

     The expression of this monetary minimum in theft cases is consistent with Section 2:  on the one hand it fixes a minimum amount at which national court jurisdiction begins, and on the other repeals those provisions of Title 11 which would otherwise fall within national court jurisdiction (property of a value of $50 to $1,000).

     This is a court of expressly delegated powers.  FSM Const. art. VIII, 1.  No right has been given to extend the jurisdiction of the court to state court crimes which are based on the same act or transaction as is the basis for an accusation under the National Code.

     The court concludes that it is without jurisdiction of Count II in each case.

                                                         12/11/81         /s/ Richard Benson             
                                                                              Associate Justice