Cite as FSM v. Raitoun,
1 FSM Intrm. 589 (Trk. 1984)

[1 FSM Intrm. 589]







Before Honorable Richard E. Benson
Associate Justice
Decided October 25, 1985

     For the Plaintiff:          David Brown
                                          Assistant Attorney General
                                          Federated States of Micronesia
                                          Moen, Truk 96942

     For the Defendant:     Michael Powell
                                          Public Defender
                                          Moen, Truk 96942     

[1 FSM Intrm. 590]

CLERK:   This  is  Criminal  Case  No.  1984-1520,  FSM  v. Jim Raitoun.  Today is Thursday, October 25, 1984, it is now 10:19 a.m.  This  session  is  for  the Court  to  give  its findings.   The  defendant  is  here  in  person  and   with  his attorney, Mr. Michael Powell, and his language informant, Mr. Richard  Eaz.  FSM Government  is  represented  by  Assistant  Attorney General Mr. David Brown and his assistant Mr. Awasio Eram.  The Honorable Richard H. Benson, Associate Justice is presiding.

COURT:  You said the defendant is present in person? This is an unusual case.  I make the  following  findings  of  fact.   On  June 16, 1984, the victim of this homicide was drunk.  As  he  left  his  house  he  was  accompanied  by  young family  members  because they thought he might get in trouble.  At the defendant's house he addressed  the  defendant  using  a  vile  phrase.   The defendant went to the victim, hit him once with his fist on the left cheek and kicked him.   The  victim fell.   He was helped up by family members.   He again directed a vile phrase at the defendant  when  the  defendant's  sister was present.   The defendant  took  a  2 x 4 and went to the victim and swung the 2 x 4 at the victim but did not hit  him.   The  defendant  dropped the 2 x 4, or in some manner the 2 x 4 left his hand.   The victim and the  defendant  then  came  at each other and the fatal injury occurred in this way:  while both were standing, the back of the head  of  the  victim  was  against  the  sternum-solarplexus  area of the defendant, the defendant extended his arms to  the  buttocks,  rear  thigh

[1 FSM Intrm. 591]

area of the victim and pulled the victim toward him.  The victim never became mobile again.  The testimony is onflicting as to the degree, but the defendant did some battering of the victim after he ceased moving and was on the ground. The victim died 4 days later in the hospital.  The victim was a patient in the hospital following  the  incident  and  there  was  an  autopsy  of  the  body.  The  neck was dislocated;  there  was  an  abrasion  of  the  left  cheek.   No other physical evidence of injury exists.  The attending physician testified that there was hyperflexion of the neck.  This is called in the testimony, "anterior subluxation of the  third  cervical  vertebra."   This  high  cervical spine subluxation  was  the cause of death.   In a comparison of size of the defendant and the victim  the defendant  was  "maybe  a bit  huskier"  than  the  victim.   There  was  conflicting testimony on the question of what the  customary  response  was to the use of the vile phrases.

     One  view  was that the use of such words would result in  a very serious attack on the speaker even causing death.  And that  relatives,  lineage  and  clan of the hearer would fight the relatives, lineage and clan of the speaker.   The other view was  that  circumstances could alter the effect of the use of such words; whether the speaker was  drunk  or  sober,  what the  family  training of the hearer had been and whether or not the hearer knows the law of the Trust Territory.  That is the American  system.   No  custom  was  established  by  a  preponderance of the evidence  that  the vile phrases  used  are

[1 FSM Intrm. 592]

sufficient  provocation lessening the culpability of the actor.   The finding is made because there was evidence on the point;  it's  not essential to the conclusion that the court makes.

     I cannot find beyond a reasonable doubt that this hold created a substantial and unjustifiable risk of death.  And I cannot  find  beyond  a  reasonable  doubt that  the  manner  in which  the  defendant held  the  victim  would  be  known  by reasonable persons to cause death or serious bodily injury.  Conclusion therefore, is that the finding is not guilty as to each count of the Information.

     There are some comments that should be made here.  The first is that anybody aware of this decision should be warned that it does not represent a court's holding that words can justify the taking of human life.   That is not what this case is about.

     Under the common law, what occurred in this case would clearly  be involuntary manslaughter.  Involuntary manslaughter is the unintentional killing of another, by one intending to injure the victim, but not carrying out that intention in a way that would naturally be expected to cause death.  But the law of homicide that's been enacted and is in effect in this country approaches that problem differently, and there must be a mental culpability of the defendant, a certain mental attitude, before he comes within the homicide statute.   Now that mental responsibility can exist if there was a substantial and unjustifiable risk of death and the

[1 FSM Intrm. 593]

defendant just disregarded it, acted as if such risk did not exist. A typical case in meeting those  facts  would  be shooting a gun into a house that you know is occupied.  The other mental responsibility can be provided under this law if the defendant should have been aware that there was  a substantial risk of death. A case that's  typical  here  would be  drunk driving.  As I've said in this case I can't find that reasonable men would have found that that hold created a substantial and unjustifiable risk of death.  It is the law in this country that punishment is only inflicted where the person was reckless as to such or was seriously careless in neglecting such risks.

     Anything further, Mr. Brown?

     MR. BROWN:  Nothing; Your Honor.

     COURT:  Very well, Court is adjourned

[1 FSM Intrm. 594]

C E R T I F I C A T I 0 N


     I, Norsiana Akira, Secretary/Court Recording Technician,  FSM Supreme Court, hereby certify:

     That the foregoing pages numbered 2 through 5 contain a full, true, and correct transcript of proceedings, had in the Supreme Court of the Federated States of Micronesian on October 25, 1984 before Honorable Richard H. Benson, Associate Justice, in Criminal Action No. 1984-1520, Federated States of Micronesia v. Jim Raitoun, recorded and transcribed by me to the best of my knowledge and ability:

     Dated at Truk, Caroline Islands this 25th day of October, 1984.

 /s/ Norsiana Akira
Norsiana Akira