POHNPEI LAW REPORTS
VOL. 3A
 
[3A PN.L.R. 682]
IN THE MATTER OF
A MINOR

 Pohnpei Juvenile Case No. 59-89

Trial Division of the Pohnpei Supreme Court

October 11, 1989
 
     Information against a minor for using a .22 long rifle when he did not have a valid firearm identification card in violation of Pohnpei State Law No. 2L-236, Section 5 (1) (S.L.2L-136-82, Section 5 (1)). The Trial Division of the Pohnpei Supreme Court, JUDAH C. JOHNNY, Associate Justice, acquitting the minor, held (1) that the statutory citation was erroneous as State Law 2L-136-82, Section 5 (1) pertained to the prohibition of acquisition of and possession of a firearm without identification card, and the minor could not be expected to acquire and possess a firearm identification card because he was 16 years of age, and Section 6 (1) of the Act made anyone under the age of 18 ineligible to purchase, possess or use firearms; and (2) that the minor was not charged for violating section 6 of the Act but rather Section 5.

1.   Criminal Law - Prosecution - Discretion of Public Prosecutor
The public prosecutor may in his discretion move the Court to strike from the information sheet an allegation against the person charged.

2.   Criminal Law - Information - Charge - Statutes - Violation
Where the section under which a minor is charged does not create an offense the minor cannot be guilty of a violation of a criminal statute.

3.   Criminal Law - Statutes - Firearm Control
A person under the age of 18 is ineligible to purchase, possess or use firearms. (S.L. 2L-136-82, Section 6)

[3A PN.L.R.683]

4.   Statutes - Firearm Control Act - Purpose
The purpose of the Firearm Control Act, S.L. 2L-136-82, is "to control weapons, to stipulate which types of weapons may be possessed in the State and to provide for their proper registration, handling and authorized use." (Pohnpei Legislature Standing Committee Report No. 76 of October, 1981)

5.   Statutes - Construction - Acquisition or Possession of Firearms,  Dangerous Devices or Ammunition - Identification Cards
The provisions of S.L. 2L-136-82, Section 5, requiring the Office of the State Attorney to make regulations "in the manner which is or may be provided by law" for the issue of identification cards for the acquisition or possession of any firearm or dangerous device or ammunition are mandatory, and whether or not law is made for the purpose, nothing stops the Office of the State Attorney from exercising its regulation-making power.

6.   Statutes - Construction - Acquisition or Possession of Firearms, Dangerous Devices or Ammunition - Identification Cards
The words used in Section 5 (2) of S.L. 2L-136-82 are clearthat the making of the regulations by the Office of the State Attorney precedes the act of issuing the identification cards for the acquisition or possession of firearms, dangerous weapons or ammunition, as the cards are to be issued pursuant to the regulations.

7.   Statutes - Construction - Meaning of phrase "pursuant to"
"Pursuant to" has been legally defined to mean "a following after or following out; line in accordance with or by reason of something; conformable; in accordance; agreeably; conformably; a carrying out or with effect; the act of executing; that which is pursuant; consequence; acting or done in consequence or in prosecution of any thing; hence; agreeable."

[3A PN.L.R. 684]

8.   Statutes - Construction - Acquisition or Possession of Firearms, Dangerous Devices or Ammunition - Identification Card Regulations
The words "pursuant to" as used in S.L. 2L-136-82, Section 5, relating to the making of regulations by the Office of the State Attorney for the issue of identification cards for the possession of any firearm or dangerous device or ammunition mean that identification cards cannot be issued unless the regulations are first made.

9.   Statutes - Regulations - Effect of Failure to Make Regulation
The failure by the Office of the State Attorney to exercise its regulation-making power for the issuance of identification cards for the acquisition or possession of firearms or dangerous devices or ammunition under S.L. 2L-136-82, Section 5, does not render ineffective the prohibition imposed by the law on the acquisition or possession of firearms, dangerous devices or ammunition

10.   Statutes - Penal Statutes - Construction
The words of a penal statute (including criminal statutes) must be such as to leave no reasonable doubt to the intention of the legislature: thus where doubt exists the liberty of the citizen is favored.

11.   Statutes - Penal Statutes - Construction
Where the language of a penal statute is susceptible to two constructions, ordinarily that construction which is more favorable to the offender will be adopted, but the rule that penal statutes are to be strictly construed in favorof the defendant does not permit the court to ignore legislative intent or require rejection of that sense of words which best harmonizes with the design of the statute or the end in view.

[3A PN.L.R. 685]

12.   Criminal Law - Statutes - Regulations
Where statute proscribes a conduct and its enforcement is contingent upon the making of regulations, it would be morally wrong to punish a person under the statute when the regulations have not been made.

Counsel for Juvenile Offender:           Ignacio Soumwei
Trial Counselor
Public Defender's Office

JUDAH C. JOHNNY, Associate Justice
     The minor and his parents appeared before me with counsel Ignacio Soumwei of the Office of Public Defenders on September 27,1989, in pursuance of the setting made on September 6,1989.

     [1] The prosecution moved to strike from the information sheet the allegation that the minor entered upon the property of another without permission. That portion of the information was therefore stricken.

     The minor through counsel admitted having possessed and handled a .22 long rifle on June 27, 1989, at Paremkep, Nett, Pohnpei State, when he did not have a valid firearm identification card. I cannot accept the admission of the minor and punish him

[3A PN.L.R. 686]

for what he admits having violated under the statutes of this State for the reasons discussed below.

     [2-3] At the outset, two minor matters are noteworthy. The statutory citation is erroneous, but notice is taken judicially that the Pohnpei firearm control act is State Law No. 2L-136-82. Section 5 (1) pertains to the prohibition of acquisition and possession of a firearm without identification card. [The person changed] to begin with, cannot be expected to acquire and possess a firearm identification card because he is a minor at the age of 16. Section 6 (1) of this Act makes any one under the age of 18 ineligible to purchase, possess or use firearms. But the minor is not charged here forviolating Section 6. He is charged with violating Section 5.

That is where 1 have great concern, as I will discuss following:

First, the minor is charged, in the language of the juvenile information sheet". . . oh ahpw pil doadoahk ki kesik. 22 ni ah sohte nah LD. card. Kawelahr iren . . . Pohnpei State Law No. 2L-236 Section 5 (1)" (S.L- No. 2L-136-82, Section 5 (1),

which in English may be stated as,

. .and used firearm. 22 when he did not have I. D. card. In violation of Pohnpei State Law No. 2L-236 Section 5 (1) (S.L. No. 2L-136-82, Section 5 (1).

[3A PN.L.R. 687]

[4] The purpose of S.L. 2L-136-82 is not specifically stated in the Act, but as found in Standing Committee Report No. 76 of October 13, 1981, "is to control weapons, to stipulate which types of weapons may be possessed in the State, and to provide for their proper registration, handling and authorized use." The Act became effective on September 7, 1982, after it had been repassed by the Pohnpei State Legislature over a veto of the Governor.

     Section 5 (1) and (2) relating to identification cards read as follows:

'(1)   No person shall acquire or possess any firearm, dangerous device or ammunition unless he holds an identification card issued pursuant to this Act. The identification card is evidence of the holder's eligibility to possess and use or carry firearms, dangerous devices or ammunition.

"(2)   Identification cards shall be issued only by the Office of the State Attorney pursuant to regulations made by the Office of the State Attorney in the manner which is or may be provided by law . . . (emphasis added.)

[5-9] While nothing in the Act expressly indicates that any of its provisions are to become effective upon a contingency, Section 5 (2) indicates that before the Office of the State Attorney may issue an identification card under the law, it has a duty to make regula-

[3A PN.L.R. 688]

tions in that behalf "in the manner which is or may be provided by law." Whether or not law is made for the purpose, nothing stops the Office of the State Attorney from exercising its regulation-making power. The words used in Section 5 (2) are clear that the making of the regulations precedes the act of issuing the identification cards, as the cards are to be issued pursuant to the regulations. "Pursuant to" has been legally defined to mean,"a following after or following out; line in accordance with or by reason of something; conformable; in accordance; agreeably; conformably, a carrying out or with effect; the act of executing; that which is pursuant; consequence; acting or done in consequence or in prosecution of anything; hence; agreeable."

Suppiger v. Enking 91 P2d 362, 366. There is no doubt that whichever of these meanings is assigned the words "pursuant to," the identification cards cannot be issued unless the regulations are first made. It should follow, therefore that when the Office of the State Attorney issues an identification card in the absence of the required regulations, the issue of the card is improper. This is not to say that the prohibition imposed by the law on the acquisition and

[3A PN.L.R. 689]

possession of firearms, dangerous devices or ammunition without an identification card is ineffective. A person who wishes to acquire or possess any of these requires a permit under Section 5 (1).

[10-11] There is no ambiguity in Section 5 (2). Assuming however that there is, S.L. 2L-136-82 is a penal statute in that it imposes some form of punishment against the individual by mandate of the State. The words of a penal statute (including criminal statutes) must be such as to leave no reasonable doubt to the intention of the legislature. Where doubt exists, the liberty of the citizen is favored. United States v. Corbett, 215 US 233, 54 L. Ed 173, 30 S. Ct. 81 (1909). Accordingly, where the language of a penal statute is susceptible to two constructions, ordinarily that construction which is more favorable to the offender will be adopted. People v. Ralph 150 P 2d 401. Also People v. Stuart, 302 P2d 5 55 ALR 2d 705. But the rule that penal statutes are to be strictly construed in favor of the defendant does not permit the court to ignore legislative intent or require rejection of that sense of words which best harmonizes with the design of the statute or end in view. State v. Prevo, 361 P2d 1044. The end in view in enacting S.L.2L-136-82 is the public

[3A PN.L.R. 690]

safety without a denial of the privilege to acquire or possess firearms, dangerous devices, or ammunition.

     Construing S.L. 2L-136-82 as a whole and particularly Section 5 (1) and (2) strictly in favor of a defendant, I am of the view that the Legislature intended that the required regulations are made by the Office of the State Attorney precedent to the issuance of the identification cards. Otherwise, there would be no basis for the issuance of the cards. Obviously, the purpose of the regulations is to fill in any details of the Act which the Legislature left out. The regulations would make for uniformity, certainty and consistency in the consideration for the issuance of identification cards.

     The failure by the Office of the State Attorney to make the required regulations is, in my opinion, a serious omission, but does not affect the operation of the law. Section 5 (2) which provides for the making of the regulations is not the section which prohibits the acquisition or. possession of firearms, dangerous devices or ammunition. The prohibition as found in Section 5 (1) is not made contingent to Section 5 (2). Section 5 (2) is merely regulatory and cannot affect the effect of Section 5 (1). To say that it does is

[3A PN.L.R. 691]

tantamount to saying that not until the regulations are made in that behalf, it is lawful to acquire or possess firearms, dangerous devices or ammunition. This certainty is not the intent of the Legislature as may be gathered from the entire scheme of this legislation.

[12] I conclude, in consideration of above, that an offense maybe committed under Section 5 (1) irrespective of whether the regulations required under Section 5 (2) have been made. Looking however, at thewholecircumstances, and having particular regard to the intention of the Legislature that the identification card shall be issued pursuant to regulations made in that behalf, regretfully, I consider it to be morally wrong to punish a person under Section 5 of the Act when regulations have not been made.

     Accordingly, while I find that [the minor] "used a .22 firearm when he did not have an I.D. card, I refrain from punishing him. I cannot punish hire for not doing what society tells him he cannot do - obtain for himself an LD. card. I cannot punish him for not having an LD. card for which society has not provided the proper means of obtaining. This matter is Ordered closed.