KOSRAE STATE COURT
FEDERATED STATE OF MICRONESIA
EASTERN CAROLINE ISLANDS 96944
Cite as KSA State vs.  Palik, Sigrah, Alokoa et.al. ,Kosrae St.

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KOSRAE STATE,
Plaintiff

vs

ELWEL PALIK,
WIDMMER SIGRAH,
RUDICK ALOKOA,
Defendants

CRIMINAL CASE NO. 23-87

OPINION

BEFORE THE HONORABLE CHIEF JUSTICE HARRY H. SKILLING

APPEARANCES:

Plaintiff      Aliksa B. Aliksa,
          Prosecutor  Kosrae State, FSM 96944

Defendant      Patrick Olter  
          Public Defender Kosrae State, FSM 96944

     Defendants are charged with KC 13.303, Assault and Battery. Defendants, Elwel Palik and Rudick Alokoa move to suppress their statement based upon violation of their rights. Statements were allegedly illegally taken by Officer Swaitcher Sam. The motion was raised after the case was presented.

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     After considering the motion, I deny it based upon Rule 12 of Kosrae Rules of Criminal Procedure.

     The motion to suppress is a procedural device used to illuminate from the trial of a criminal case evidence which has been illegally secured in violation of constitutional rights of defendants. The motion should be raised before the hearing of a case in order for court to determine it. Failure by a party to raise defenses or objections or to make request which must be made prior to the trial set by the Court constitutes a waiver.

FACTUAL BACKGROUND

     On December 18, 1986' at approximately 9:00 p.m. defendants were drinking beer at Mr. Marcus Nedlic's place with two others, Brightwel and Sepio. The victim, Eugene Palsis, arrived with the wife, Mirah Eugene, Akiyusy Palsis (cousin) and Bolty Sanne.

     Upon arriving at the place, the victim went directly to where the defendants were sitting and started a conversation with Sepio. At this time, victim uses the expression "sukasrup elan mutan," which litteraly means, poor in terms of finance and girlish. Defendant Elwel Palik got offended and advised the victim to leave the premises. The victim did not leave. Defendant Palik became offended and kicked the victim on his chest and knocked him down. While the victim was on the floor, defendant Alokoa turned the light off and punched victim with a glass.

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     Brightwel and Sepio stopped the fight and assisted Akiyusy Palsis by taking the victim outside the house and then Akiyusy Palsis took victim to the hospital for medical treatment. Dr. Zantua treated the victim and testified in Court. The injuries sustained by the victim were a direct  result of a blunt object that was applied with force and as a result victim sustained cuts on his face measuring 1"xl-1/2" deep.

     There was no dispute that the victim was injured. The issue to be resolved is whether all defendants actually participated in committing the act of assault and battery.

     Testimonies of Mirah, victim's wife testified that she was on top of victim trying to avoid punches applied by all three defendants. She was inside the truck and at one point she claims she saw Widmer throw a bottle at victim and hit her. Her testimonies were contricted by other testimonies.

     Akiyusy Palsis could not remember everything that took places but saw defendant Palik where he kicked victim so did Brightwel. Sepio was there and testified that he never saw Mr. Sigrah participated in assaulting the victim.

     Government's offer the statements of Rudick Alokoa and Elwel Palik as its evidence and was admitted by court.

FINDINGS

From the testimonies of all witnesses and the evidence submitted before this court, I found defendants Palik and Rudick Alokoa guilty on KC 13.303. Defendant Widmer is dismissed from the charge.

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     KC 13.303. Charge of Assault and Battery constituting of the elements of striking, beating, wounding or do bodily harm to another. Assault and Battery is a category one misdemeanor.

     From the testimonies of the witness, Elwel Palik did kick defendant during the night of December 13, 1986 and as a direct result of force applied by his kick, the victim felt down. Whether one kick, or how many kicks applies, it is still considered unlawful and still constitutes the act of assault and battery.

     Defendant Rudick Alokoa. s act is truly convincing to me that he  was participating when he turn the lights off and punched the victim with a class.

     In most of tile jurisprudence, assault and battery existed together. It becomes customary to review the term "assault and battery" as if were a single concept or a unit.

     In this case, the evidence is overwhelmingly proves that defendants Palik and Alokoa did participate in committing this act by injuring the victim during the night of December 13th, 1986.

CONCLUSION
     Based upon these .acts and testimonies of the witness, there is substantial evidence to support the charge of KC 13.303. Defendants Palik and Alokoa is guilty. Defendant Sigrah is not guilty.

DATED:_ _ _

/s/
Harry H.Skilling
Chief Justice

                                                                                                                                                                                                                                                                                                           
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