THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as FSM v. Nota,
1 FSM Intrm. 299 (Truk 1983)

TRIAL DIVISION-STATE OF TRUK

[1 FSM Intrm. 299]

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

SINFY NOTA,
Defendant.

CRIMINAL CASE NO. 1982-1561

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

CLINDON JOKER,
Defendant.

CRIMINAL CASE NO. 1983-1501

OPINION DENYING MOTIONS TO DISMISS

Before Richard H. Benson
Associate Justice
May 27, 1983
Truk, Caroline Islands 96942

APPEARANCES:
     For the Government:     Jeanne H. Rayphand, Esq.
                                             Office of the Attorney General
                                             State of Truk
                                             E. Caroline Islands 96942

     For the Defendants:      Michael K. Powell, Esq.
                                             Office of the Public Defender
                                             State of Truk
                                             E. Caroline Islands 96942

[1 FSM Intrm. 300]

     These cases came before the court on defendants pretrial motions to dismiss pursuant to Rule 12(b).  The motions were consolidated because they present common questions.  The cases are otherwise unrelated.

The issues presented are:

     1)  Whether this court has jurisdiction of these offenses under the Trust Territory Weapons Control Act by virtue of the enactment by the Congress of the Federated States of Micronesia of the National Criminal Code which defined major

[1 FSM Intrm. 301]

crimes as those punishable by imprisonment for 3 years or more.  And, if the court does have jurisdiction,

     2)  Whether the definition of "dangerous device" appearing in the act is so vague as to deprive the defendants of due process of law.

     The issues are resolved against the defendants in that the court concludes it does have jurisdiction and that the definition gives adequate notice.

Jurisdiction
     The defendants contend that the National Criminal Code, enacted by the Congress of the Federated States of Micronesia, improperly defines major crimes by the penalty imposed.  The code defines major crimes as those punishable by imprisonment for 3 years or more.  11 F.S.M.C. 902(1).  The argument is that stating the penalty does not define a crime.  The defendants assert that to define a crime the offense and the elements thereof must be stated.

     The court cannot agree.  An object may be defined and identified by stating the exclusive category to which it belongs.  Webster's Third New International Dictionary 592 (unabridged 1965) ("to set apart in a class by identifying marks").

     The Constitution empowered Congress "...to define major crimes and prescribe penalties."  FSM Const. art. IX, 2(p).

[1 FSM Intrm. 302]

     Pursuant to this authority Congress enacted the National Criminal Code. The following passages from the Standing Committee Report 1-299 (Committee on Judiciary and Governmental Operations) dated November 12, 1980, reflect the intent of Congress.

... Your Committee notes that there have been two major areas of concern over the proposed code: the definition of major crimes and the accommodation of custom...

... Major crimes are defined in the measure as all crimes punishable by imprisonment of three years or more.  This is a satisfactory standard to determine which crimes are to be the business of the National Government and which are to be matters      of state concern...

... The Committee's considered conclusion was to draw the major-minor crime distinction at the three-year punishment level.  This dividing line allows the states to regulate a wide range of conduct to determine its criminality, but still meets the constitutional responsibility of the Congress to define major crimes"... p. 2, 3.

     The Constitution of the Federated States of Micronesia, Article XV, Section 1, Transition, provides, "A statute of the Trust Territory continues in effect except to the extent it is inconsistent with this Constitution, or is amended or repealed."

     The Trust Territory Weapons Control Act is not inconsistent with any provision of the Constitution. it therefore continued in effect.  When the National Criminal Code was enacted, and major crimes were defined, the Trust Territory Weapons Control Act became national law and trials for

[1 FSM Intrm. 303]

violations thereof were within the jurisdiction of this Court.

     The foregoing analysis is consistent with 12 F.S.M.C. 102 which states in part that criminal Prosecutions shall be conducted in the name of the Federated States of Micronesia for violations of the statutes of the Trust Territory which continued in effect by virtue of the transition article of the Constitutions and which are within the jurisdiction ofthe National Government of the Federated States of Micronesia.

     Title 8, 206 of the Code of the Federated States of Micronesia authorizes the transfer of authority from the Trust Territory and its officials to the government of the Federated States of Micronesia and its officials.  Thus the reference in the Trust Territory Weapons Control Act to the High Commissioner and the Attorney General of the Trust Territory does not prevent its effectiveness as national law of the Federated States of Micronesia.

Dangerous Device
     In Case No. 82-1561 the defendant is accused by information of possessing "a dangerous device, to wit, sling shot with two spears" without having an identification card permitting such possession.

     In Case No. 83-1501 the defendant is accused by information of possessing "a dangerous device, to wit, sling shot and dart" without having an identification card permitting such possessions.

[1 FSM Intrm. 304]

The Weapons Control Act provides this definition:

"Dangerous device" means any explosive, incendiary, or poison gas bomb, grenade, mine or similar device, switch or gravity blade knife, blackjack, sandbag, metal, wooden or shark's tooth knuckles, dagger, any instrument designed or redesigned for use as weapon, or any other instrument which can be used for the purpose of inflicting bodily harm and which under the circumstances of its possession serves no lawful purpose.

11 F.S.M.C. 1204(3).

     The court agrees with the standard of notice cited by the defendants:

     "[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law..  Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322, 328 (1926).

     In People v. Grubb, 408 P.2d 100 (Cal. 1965), the defendant unsuccessfully contested the constitutionality of an act which proscribed the possession of several instruments, including a billy.  The defendant had in his car a broken baseball bat.

     Adopting the reasoning in Grubb, this court finds that the statute is clear as to intent (to proscribe weapons of violence), and its terms become certain in the light of that intent.

[1 FSM Intrm. 305]

     For the reasons stated, the motions to dismiss were denied by order dated June 28, 1983.

Dated:  August 10, 1983                                                      /s/ Richard H. Benson
                                                                                                       Associate Justice
Supreme Court of the Federated
States of Micronesia

Filed:  8/10/83

Kolbert Angei
Asst. Clerk of Court