Pohnpei v.Moses

POHNPEI SUPREME COURT REPORTS

VOL. 1

[1 P. S. Ct. R 197]

POHNPEI STATE,

PLAINTIFF

IOSTINO MOSES,

DEFENDANT

POHNPEI CRIMINAL CASE NO. 358-85

TRIAL DIVISION OF THE POHNPEI SUPREME COURT

JULY 17, 1985

Defendant was charged on three counts: Count I with Assault and Battery, Count 11 with Disturbing the Peace and Count III with Misconduct in Public Office. On arraignment defendant pleaded guilty to Count I, not guilty to Count II and on a motion of prosecution Count III was dismissed. Prior to trial defendant changed his plea of not guilty to guilty on Count II but requested the Court to examine the charges to determine whether or not Count II might have been merged into Count I. The Trial Division of the Pohnpei Supreme Court. JUDAH C. JOHNNY, Associate Justice, held that as the same act by the defendant constituted the two counts, there was a merger and the doctrine of merger should apply.

1. Criminal Law - Merger of Offenses

The "doctrine of merger" rests on the principle that the offense merged is lesser than the one in which it is merged, and that the ingredients of the smaller one are so identical with the ingredients of the larger one; that both have been committed; that they cannot in reason and justice be separated, so that to punish an accused in such a case would be in effect to punish the same act twice.

2. Criminal Law - Doctrine of Merger - Application

The doctrine of merger applies only where identical criminal act constitutes both offenses.

3. Criminal Law - Merger of Offenses

Merger in criminal law occurs where the same act of crime is within the definition of a misdemeanor and likewise a felony.

[1 P. S. Ct. R 198]

4. Criminal Law - Merger of Offenses

Merger in criminal law occurs when the same criminal act constitutes both felony and misdemeanor, and where there is identity of time, place arid circumstance.

5. Common Law- Merger of Offenses

At common law, if a misdemeanor is an ingredient of a felony, the misdemeanor is said to be merged into the felony, and prosecution can only be for the latter.

6. Criminal Law - Merger of Offenses

The doctrine of merger has no application where both crimes are misde meanors or both crimes are felonies, though one may be of much graver character than the other and punishable with much greater severity. In such a case, however, another principle may apply, that is, if one of Tense is a necessary in gradient of another, a trial for one may bar prosecution of the other under the double jeopardy rule. (2 Am Jur 2d, Criminal Law. Section 9).

7. Criminal Law - Merger of Offenses - Test of Lesser Included Offense

The test of whether the same act constitutes a violation of two distinct statutory provisions is whether each provision requires proof of additional fact which the other does not.

8. Criminal Law - Merger of Offenses - Conviction of Greater Offense - Effect

Conviction of the greater merges all lesser included offenses, whether charged or not, but the reverse is not true.

9. Criminal Law - Merger of Offenses - Assault and Battery

The doctrine of merger of offenses applies in prosecutions for assault and battery. (6 Am Jur 2d, Assault and Battery, Section 56, 57)

10. Criminal Law - Merger of Offenses

The offense of breach of the peace by abusive language is not embraced in the crime of assault and battery. (6 Am Jur 2d, Assault and Battery, Section 56)

[1 P. S. Ct. R 199]

Counsel for Plaintiff: Dickson Santos

Counsel for Defendant: Kletus James

JUDAH C. JOHNNY, Associate Justice

I called this matter for trial on July 17, 1985, in Kolonia, State of Pohnpei. It appears of record that at arraignment, held June 17, 1985, the accused offered a guilty plea to Count I of Assault and Battery, and not guilty plea to Count II of Disturbing the Peace. On motion of Prosecution, Count III of Misconduct in Public Office, was ordered dismissed on the same day.

Immediately prior to trial on July 17, 1985, the defendant offered to change his plea of not guilty to a plea of guilty on Count II, but requested this Court to examine the charges to determine whether or not Count II might have been merged into Count I.

[1 ] In determining the existence of merger of offenses, I look at the "doctrine of merger". The "doctrine of merger" rests on the principle that the offense merged is lesser than the one in which it is merged, and that the ingredients of the smaller one are so identical with the ingredients of the larger one, that both have been committed, that they cannot in reason and justice be separated, so that to punish an accused in such a case would be in effect to

[1 P. S. Ct. R 200]

punish the same act twice.

[2-8] The doctrine of merger applies only where identical criminal act constitutes both offenses. See Pivak v. State, 74 ALR 406, footnote 1 at 409. Merger in criminal law occurs where the same act of crime is within the definition of a misdemeanor and likewise a felony. It occurs when the same criminal act constitutes both felony and misdemeanor, and where there is identity of time, place and circumstance. At common law, if a misdemeanor is an ingredient of a felony the misdemeanor is said to be merged into the felony, and prosecution can only be for the latter. See Commonwealth v. Comber, 37 ALR 2d 1058. The doctrine of merger has no application where both crimes are misdemeanors or both crimes are felonies, though one may be of much graver character than the other and punishable with much greater severity. In such a case, however, another principle may apply, that is, if one offense is a necessary ingredient of another, a trial for one may bar prosecution of the other under the double jeopardy rule. 21 Am Jur 2d, Criminal Law, Section 9. The test of whether the same act constitutes a violation of two distinct statutory provisions is whether each provision requires proof of an additional fact which the other does not. Ridep v. Trust Territory,

[1 P. S. Ct. R 201]

5 TTR 61. And conviction of the greater merges all lesser included offenses, whether charged or not, but the reverse is not true. Ridep v. Trust Territory, Supra.

[9-10]. The doctrine of merger of offenses, expressed by the prosecution that if an act constitutes two crimes of different grades that of the lower grade is merged in the one of the higher grade, applies in prosecutions for assault and battery. See 6 Am Jur2d Assault and Battery Section 56, 57. It is interesting to note, that the offense of breach of the peace by abusive language is not

embraced in the crime of assault and battery. 6Am Jur2d, Assault and Battery, Section 56.

In the case at bar, Count I of the complaint of Assault and Battery reads,

'ASSAULT AND BATTERY. For unlawfully slapping the face of Benida Alex twice thereby injuring the person of this girl ...."

Count !I, on the charge of disturbing the peace reads,

"DISTURBING THE PEACE.For unlawfully slapping the face of Benida Alex in the Emergency Room thereby violated [sic] the right of this girl to peace and security..."

Both counts allege the offense having been committed on May 13,

[1 P. S. Ct. R 202]

1985, in the "Emergency Room, Hospital, Nett."

It is clear that the same act constitutes the two counts. There is a merger and the doctrine of merger shall apply.

It Is ORDERED

1. This Court finds the defendant guilty of the charge of assault and battery.

2. This Court rejects the "guilty" plea of the defendant to the offense of disturbing the peace. The act charged is merged into the charge of assault and battery.

SENTENCE

The defendant is to serve a sentence of imprisonment for a period of four months, all of which are hereby suspended on probation under the following conditions, which are written, addressed to the defendant personally:

1. At all times, during this probation period, you are to conduct yourself in such a manner appertaining to a peaceful courteous Ponapean standard, observing all laws applicable to Pohnpei State.

2. You are at all times to refrain yourself from disturbing, annoying or otherwise interfering with Benita Alex, in manner

[1 P. S. Ct. R 203]

malicious or unlawful. Within three months from this date, under standard Pohnpeian custom, you are to endeavor to peacefully resolve the dispute you may have created between you and Benita Alex, as well as members of your families or clans, if this incident brought about animosity among your people.

3. You are not at liberty to depart the geographic jurisdiction of the State of Pohnpei, without prior authorization of the Pohnpei State Probation officer, or this Court.

4. During these four months, you are to report to the Pohnpei State Probation Officer, at least once a month. Your first report will be on July 22, 1985, at which time the Probation Officer shall establish a schedule of your subsequent visits. The Probation Officer is authorized to arrange for more frequent visits within a month, as he deems best for your affairs. During these visits, you are to report to the Probation Officer about your thoughts and views, your action or welfare, and your accomplishments, or otherwise, of these conditions, including your efforts to reconcile between yourself and the victim herein, as well as the people affected.

[1 P. S. Ct. R 204]

5. This Court retains the authority to modify this sentence or any, condition hereof, as it deems justice requires. As to Criminal Case No.164-85, this Court will defer any action, but will allow counsel or the Probation Officer, to determine if there is need to file a separate pleading; as it deems appropriate relating to your conviction in Criminal Case No. 358-85, for which you are dealt with this day


	POHNPEI SUPREME COURT REPORTS VOL. 1 [1 P. S. Ct. R 197] POHNPEI STATE, PLAINTIFF v. IOSTINO MOSES, DEFENDANT POHNPEI CRIMINAL CASE NO. 358-85 TRIAL DIVISION OF THE POHNPEI SUPREME COURT JULY 17, 1985 Defendant was charged on three counts: Count I with Assault and Battery, Count 11 with Disturbing the Peace and Count III with Misconduct in Public Office. On arraignment defendant pleaded guilty to Count I, not guilty to Count II and on a motion of prosecution Count III was dismissed. Prior to trial defendant changed his plea of not guilty to guilty on Count II but requested the Court to examine the charges to determine whether or not Count II might have been merged into Count I. The Trial Division of the Pohnpei Supreme Court. JUDAH C. JOHNNY, Associate Justice, held that as the same act by the defendant constituted the two counts, there was a merger and the doctrine of merger should apply. 1. Criminal Law - Merger of Offenses The "doctrine of merger" rests on the principle that the offense merged is lesser than the one in which it is merged, and that the ingredients of the smaller one are so identical with the ingredients of the larger one; that both have been committed; that they cannot in reason and justice be separated, so that to punish an accused in such a case would be in effect to punish the same act twice. 2. Criminal Law - Doctrine of Merger - Application The doctrine of merger applies only where identical criminal act constitutes both offenses. 3. Criminal Law - Merger of Offenses Merger in criminal law occurs where the same act of crime is within the definition of a misdemeanor and likewise a felony. [1 P. S. Ct. R 198] 4. Criminal Law - Merger of Offenses Merger in criminal law occurs when the same criminal act constitutes both felony and misdemeanor, and where there is identity of time, place arid circumstance. 5. Common Law- Merger of Offenses At common law, if a misdemeanor is an ingredient of a felony, the misdemeanor is said to be merged into the felony, and prosecution can only be for the latter. 6. Criminal Law - Merger of Offenses The doctrine of merger has no application where both crimes are misde meanors or both crimes are felonies, though one may be of much graver character than the other and punishable with much greater severity. In such a case, however, another principle may apply, that is, if one of Tense is a necessary in gradient of another, a trial for one may bar prosecution of the other under the double jeopardy rule. (2 Am Jur 2d, Criminal Law. Section 9). 7. Criminal Law - Merger of Offenses - Test of Lesser Included Offense The test of whether the same act constitutes a violation of two distinct statutory provisions is whether each provision requires proof of additional fact which the other does not. 8. Criminal Law - Merger of Offenses - Conviction of Greater Offense - Effect Conviction of the greater merges all lesser included offenses, whether charged or not, but the reverse is not true. 9. Criminal Law - Merger of Offenses - Assault and Battery The doctrine of merger of offenses applies in prosecutions for assault and battery. (6 Am Jur 2d, Assault and Battery, Section 56, 57) 10. Criminal Law - Merger of Offenses The offense of breach of the peace by abusive language is not embraced in the crime of assault and battery. (6 Am Jur 2d, Assault and Battery, Section 56) [1 P. S. Ct. R 199] Counsel for Plaintiff: Dickson Santos Counsel for Defendant: Kletus James JUDAH C. JOHNNY, Associate Justice I called this matter for trial on July 17, 1985, in Kolonia, State of Pohnpei. It appears of record that at arraignment, held June 17, 1985, the accused offered a guilty plea to Count I of Assault and Battery, and not guilty plea to Count II of Disturbing the Peace. On motion of Prosecution, Count III of Misconduct in Public Office, was ordered dismissed on the same day. Immediately prior to trial on July 17, 1985, the defendant offered to change his plea of not guilty to a plea of guilty on Count II, but requested this Court to examine the charges to determine whether or not Count II might have been merged into Count I. [1 ] In determining the existence of merger of offenses, I look at the "doctrine of merger". The "doctrine of merger" rests on the principle that the offense merged is lesser than the one in which it is merged, and that the ingredients of the smaller one are so identical with the ingredients of the larger one, that both have been committed, that they cannot in reason and justice be separated, so that to punish an accused in such a case would be in effect to [1 P. S. Ct. R 200] punish the same act twice. [2-8] The doctrine of merger applies only where identical criminal act constitutes both offenses. See Pivak v. State, 74 ALR 406, footnote 1 at 409. Merger in criminal law occurs where the same act of crime is within the definition of a misdemeanor and likewise a felony. It occurs when the same criminal act constitutes both felony and misdemeanor, and where there is identity of time, place and circumstance. At common law, if a misdemeanor is an ingredient of a felony the misdemeanor is said to be merged into the felony, and prosecution can only be for the latter. See Commonwealth v. Comber, 37 ALR 2d 1058. The doctrine of merger has no application where both crimes are misdemeanors or both crimes are felonies, though one may be of much graver character than the other and punishable with much greater severity. In such a case, however, another principle may apply, that is, if one offense is a necessary ingredient of another, a trial for one may bar prosecution of the other under the double jeopardy rule. 21 Am Jur 2d, Criminal Law, Section 9. The test of whether the same act constitutes a violation of two distinct statutory provisions is whether each provision requires proof of an additional fact which the other does not. Ridep v. Trust Territory, [1 P. S. Ct. R 201] 5 TTR 61. And conviction of the greater merges all lesser included offenses, whether charged or not, but the reverse is not true. Ridep v. Trust Territory, Supra. [9-10]. The doctrine of merger of offenses, expressed by the prosecution that if an act constitutes two crimes of different grades that of the lower grade is merged in the one of the higher grade, applies in prosecutions for assault and battery. See 6 Am Jur2d Assault and Battery Section 56, 57. It is interesting to note, that the offense of breach of the peace by abusive language is not embraced in the crime of assault and battery. 6Am Jur2d, Assault and Battery, Section 56. In the case at bar, Count I of the complaint of Assault and Battery reads, 'ASSAULT AND BATTERY. For unlawfully slapping the face of Benida Alex twice thereby injuring the person of this girl ...." Count !I, on the charge of disturbing the peace reads, "DISTURBING THE PEACE.For unlawfully slapping the face of Benida Alex in the Emergency Room thereby violated [sic] the right of this girl to peace and security..." Both counts allege the offense having been committed on May 13, [1 P. S. Ct. R 202] 1985, in the "Emergency Room, Hospital, Nett." It is clear that the same act constitutes the two counts. There is a merger and the doctrine of merger shall apply. It Is ORDERED 1. This Court finds the defendant guilty of the charge of assault and battery. 2. This Court rejects the "guilty" plea of the defendant to the offense of disturbing the peace. The act charged is merged into the charge of assault and battery. SENTENCE The defendant is to serve a sentence of imprisonment for a period of four months, all of which are hereby suspended on probation under the following conditions, which are written, addressed to the defendant personally: 1. At all times, during this probation period, you are to conduct yourself in such a manner appertaining to a peaceful courteous Ponapean standard, observing all laws applicable to Pohnpei State. 2. You are at all times to refrain yourself from disturbing, annoying or otherwise interfering with Benita Alex, in manner [1 P. S. Ct. R 203] malicious or unlawful. Within three months from this date, under standard Pohnpeian custom, you are to endeavor to peacefully resolve the dispute you may have created between you and Benita Alex, as well as members of your families or clans, if this incident brought about animosity among your people. 3. You are not at liberty to depart the geographic jurisdiction of the State of Pohnpei, without prior authorization of the Pohnpei State Probation officer, or this Court. 4. During these four months, you are to report to the Pohnpei State Probation Officer, at least once a month. Your first report will be on July 22, 1985, at which time the Probation Officer shall establish a schedule of your subsequent visits. The Probation Officer is authorized to arrange for more frequent visits within a month, as he deems best for your affairs. During these visits, you are to report to the Probation Officer about your thoughts and views, your action or welfare, and your accomplishments, or otherwise, of these conditions, including your efforts to reconcile between yourself and the victim herein, as well as the people affected. [1 P. S. Ct. R 204] 5. This Court retains the authority to modify this sentence or any, condition hereof, as it deems justice requires. As to Criminal Case No.164-85, this Court will defer any action, but will allow counsel or the Probation Officer, to determine if there is need to file a separate pleading; as it deems appropriate relating to your conviction in Criminal Case No. 358-85, for which you are dealt with this day