PNI State v. Nihla(1989)

Criminal prosecution on two separate counts of rescue in violation of the Pohnpei Crimes Act of 1985, S.L.1 L-3-85. The act the defendant was alleged to have committed was "hiding and aiding her husband in a closet in their house." No evidence showed that the defendant did what would constitute rescue. Neither did the evidence show that the husband was a prisoner or that his freedom was in any way restricted. She pleaded not guilty to each count.

The Trial Division of the Pohnpei Supreme Court, JUDAH C. JOHNNY, Associate Justice, acquitting the defendant, held that for the defendant to be guilty of rescue, her husband must be a prisoner in flight from lawful custody or place of restriction, or his freedom of movement must have been rstricted.

A person who hides or aids another person in flight to hide in a closet is not guilty of the offense of rescue where that other person is not in flight from lawful custody or place of restriction, or that other person's freedom of movement has not been restricted by order of the Court.

For the purposes of rescue under the statute a prisoner means a person who has been sentenced to imprisonment prior to the rescue; and one whose freedom of movement is restricted is a person who has been arrested pursuant to a court order, the restriction being in the sense that he has actually been taken into police custody.

Obstructing justice speaks to interference prior to and during arrest, assuming the subject person is not a prisoner, but once the person is placed in custody, there can be no more obstruction of justice if aiding or assisting that person leads to escape, for that would therefore be rescue.

The defendant is criminally charged in this matter with two separate counts of Rescue, in violation of the Pohnpei Crimes Act of 1985, S.L. No. 1 L-3-85. She pled not guilty to each count. Trial was held, and on August 15, 1989, this Court found the evidence failed to prove guilt and verbally acquitted the defendant on both

RESCUE. That on or about the 10 [sic] day of November, 1988, Likinkel, Kolonia, Pohnpei State, Federated States of Micronesia, NIHLA Peter did unlawfully, having information of and knowing that an Order of the Court had been issued for the arrest of Johsper Hadley, hid Johsper Hadley in a closet in their house.. In violation of Pohnpei State Code Chapter 3 Section 3-13.

RESCUE. That on or about the 10th day of December, 1988, Likinkel, Kolonia, Pohnpei State, Federated States of Micronesia, NIHLA PETER did unlawfully having information of and knowing that Johsper Hadley was a prisoner under Order of the FSM Supreme Court and knowing that this prisoner was hiding from the police, intentionally aided and hid the person of Johsper Hadley so that this prisoner would not be arrested by the police. In violation of Pohnpei State Code Chapter 3 Setion 3-13."

The only evidence before this Court is from the Government. The evidence shows that Johsper Hadley and the defendant at all times involved in this action were husband and wife. On two different occasions, the Police Department was engaged in the execution of an arrest of Johsper Hadley. The first occasion, which connects to Count I of the Information, was alleged to be based on a bench warrant of the Supreme Court of the Federated States of Micronesia. Officers involved in the arrest testified that on November 10,1988, when they went to the home of Johsper Hadley and the defendant to arrest Johsper Hadley, the defendant hid Johsper in a closet thereby violating Section 3-13 of the Pohnpei Crimes Act.

I find the evidence failed to convict the defendant on Count I for two reasons. First, the criminal information charges that the defendant committed the offense on November 10, 1988. The testimonies of the officers involved in the arrest are in agreement with the Information that they executed the arrest warrant on November 10, 1988. On review of the records of the Supreme Court of the Federated States of Micronesia, notice is taken

judicially that Johsper Hadley was a defendant in Federated States of Micronesia Supreme Court Criminal Case No. 1988-566. That case contains awarrant issued by the Supreme Court forthe arrest of Johsper Hadley. That bench warrant is dated November 11, 1988. No other warrant was issued by the court for the arrest of Jahsper Hadley. The relevant section of the Crimes Act which this defendant is charged to have violated reads,

"Every person who shall unlawfully, knowingly and wilfully provide any assistance to any prisoner or person whose freedom of movement has been restricted by order of the court, in flight from lawful custody or place of restriction shall be guilty of rescue..." (Emphasis added).

[1] In order for the defendant to be guilty of rescuing Johsper, Johsper at that time the defendant gave him aid, or hid him in the closet, must be a prisoner in flight from lawful custody or place of restriction, or his freedom of movement must have been restricted. No evidence proved that Johsper was a prisoner on November 10th. No evidence proved that he was a subject of arrest or had been arrested on November 10th by warrant or other form of court order. He must be presumed to be a free man. It should be presumed, too, that the police officers had no right trying to arrest

[2-6] Second, assuming that the warrant was issued on November 10, 1988, and that Nihla Peter did, in fact, hide Johsper Hadley in their home closet, the evidence does not establish that Johsper was' a prisoner, or that his freedom of movement had been restricted at the time of the hiding. The officers came seeking to arrest Johsper. He must be presumed to be a person, who had freedom of movement at the time of hiding, and not a prisoner. The language of the law is clear. The disposition of the person rescued (in this instance, Johsper) has to be in one of two categories:

To be a prisoner means that he has been sentenced to imprisonment priorto the rescue. To be one whose freedom of movement is restricted, means that he has been arrested pursuant to a court order. The sense of restriction here calls for actual taking of the person into police custody. The statute does not speak to the future. The language is in the past form. A warrant of arrest (court

order) must have been issued, executed, and the freedom of the person rescued (Johsper Hadley) restricted (in custody of the police). Johsper Hadley was in neither of these dispositions when the defendant hid him in the closet. He had not been sentenced to imprisonment. He was not a prisoner. Even though the Supreme Court may have issued a warrant for his arrest, he had not been arrested when the defendant hid him in the closet. The officers had arrived seeking to arrest Johsper. But they had not restricted his freedom - which is to say, they had not placed Johsper in their custody. Johsper's disposition was on the verge of going into one of the categories, but it had not. The key factor in the case at bar is actual custody. The arrest process must have been completed. For once completed, Johsper would then be in police actual custody. That is when his freedom of movement is restricted in the sense of the statute. Otherwise, the act of the defendant cannot be to "rescue" him. Until arrest is completed and Johsper is in police custody, anything done before that in his aid cannot be a rescue. There is a clear distinction between this offense and the offense of obstructing justice in Section 3-1 of the Crimes Act. Obstructing

justice speaks to interference prior to and during arrest, assuming the subject person is not a prisoner. Once the person is placed in custody, there can be no more obstruction of justice if aiding or assisting that person leads to escape, for that would therefore be rescue. Thus, here, Johsper was not a prisoner, and had not come into custody of the police officers by an arrest. Actual custody, an essential element in the offense of rescue may mean personal custody of a person by an officer or it may mean confinement of a person in a prison, jail or calaboos. 77 CJS Rescue, Section 3; People v. Murphy, 20 P2d 63, 130 Cal App 408.

[7-8] Assuming further, that the defendant gave aid or assistance to Johsper when he had been arrested, it is another element of the offense of rescue that the act of rescuing led to the successful escape of the prisoner or person in police custody. In other words, the escape or deliverance from custody of the person rescued is essential to the consumated offense of rescue. Termination by force of the custody of an officer over his prisoner may constitute rescue before the prisoner makes an escape. Murphy, supra. As in the case at bar, Johsper did not escape as a result of what this defendant did.

On the second occasion, which leads to Count II, the evidence showed that Johsper Hadley was committed to jail on November 14, 1988, by order of the Supreme Court of the Federated States of Micronesia, subject to bail of $250.00. The bail was not paid and he remained until December 9, 1988, when he escaped from the jail. He was a fugitive until December 1988, when he was apprehended again.

[9] During his period of liberty, Johsper Hadley was being sought to be arrested. The evidence shows that the officers searched for this fugitive on December 10, 1988, at the home of the defendant. In the early hours of that day, Johsper came to this home, changed clothes and left. He met the defendant, but no evidence showed that the defendant did what would constitute rescue. Johsper merely went to the home of the defendant, their home, changed clothes and left. The closest situation that one may construe that might constitute rescue on the part of this defendant is her knowledge of Johsper's entry in her home and change of clothes.

But mere knowledge of the whereabouts of a fugitive is certainly not an offense of rescue. This was the home of the defendant and her husband Johsper Hadley. Johsper had all the rights, as husband, to enter the home and change his clothes, without the knowledge or consent of the defendant. Thus, her knowing that Johsper entered their home and changed clothes is not unlawful. She did not aid or assist the prisoner. The prisoner acted on his own. Absent any proof of any act of the defendant to provide assistance to Johsper, she must be found innocent.


	POHNPEI LAW REPORTS VOL.3A [3A PN.L.R.574] POHNPEI STATE v. NIHLA PETER Pohnpei Criminal Action No. 475-88 Trial Division of the Pohnpei Supreme Court August 15, 1989 Criminal prosecution on two separate counts of rescue in violation of the Pohnpei Crimes Act of 1985, S.L.1 L-3-85. The act the defendant was alleged to have committed was "hiding and aiding her husband in a closet in their house." No evidence showed that the defendant did what would constitute rescue. Neither did the evidence show that the husband was a prisoner or that his freedom was in any way restricted. She pleaded not guilty to each count. The Trial Division of the Pohnpei Supreme Court, JUDAH C. JOHNNY, Associate Justice, acquitting the defendant, held that for the defendant to be guilty of rescue, her husband must be a prisoner in flight from lawful custody or place of restriction, or his freedom of movement must have been rstricted. 1. Criminal Law - Rescue A person who hides or aids another person in flight to hide in a closet is not guilty of the offense of rescue where that other person is not in flight from lawful custody or place of restriction, or that other person's freedom of movement has not been restricted by order of the Court. 2. Statutes - Criminal Law Rescue - Person Rescued Under statute a person rescued has to be in one of two categories, that is to say, (1) a prisoner or (2) one whose freedom of movement has been restricted (S.L. 1 L-3-85, Section 3-13) [3A PN.L.R.575] 3. Statutes - Criminal law - Rescue - Person Who May be Properly Charged For the purposes of rescue under the statute a prisoner means a person who has been sentenced to imprisonment prior to the rescue; and one whose freedom of movement is restricted is a person who has been arrested pursuant to a court order, the restriction being in the sense that he has actually been taken into police custody. 4. Criminal Law - Rescue Anything done in aid of a person before an arrest of that person is completed and the person is in police custody is not rescue. 5. Criminal Law - Distinction between Obstructing Justice and Rescue Obstructing justice speaks to interference prior to and during arrest, assuming the subject person is not a prisoner, but once the person is placed in custody, there can be no more obstruction of justice if aiding or assisting that person leads to escape, for that would therefore be rescue. 6. Criminal Law - Rescue - Actual Custody - Meaning Actual custody, an essential element in the offense of rescue may mean personal custody of a person by an officer or it may mean confinement of a person by an officer or it may mean confinement of a person in a prison, jail or calaboose. 7. Criminal Law - Rescue - Elements One of the elements of the offense of rescue is that the act of rescuing led to successful escape of the prisoner or person in [3A PN.L.R.576] police custody. In other words, the escape or deliverance from custody of the person rescued is essential to the consumated offense of rescue. 8. Criminal Law -Rescue - Elements Termination by force of the custody of an officer over his prisoner may constitute rescue before the prisoner makes an escape. 9. Criminal Law - Rescue - Elements The mere knowledge of the whereabouts of a fugitive does not constitute an offense of rescue. Counsel for Prosecution: Herold Henry Trial Counselor Kolonia, Pohnpei 96941 Counsel for Defendant: loanis Kanichy Trial Counselor Public Defender's Office JUDAH C. JOHNNY, Associate Justice BACKGROUND The defendant is criminally charged in this matter with two separate counts of Rescue, in violation of the Pohnpei Crimes Act of 1985, S.L. No. 1 L-3-85. She pled not guilty to each count. Trial was held, and on August 15, 1989, this Court found the evidence failed to prove guilt and verbally acquitted the defendant on both [3A PN.L.R.577] counts. This written finding and order is issued in pursuance thereto. This is a matter of first impression. The criminal information under which the defendant is charged reads, COUNT I RESCUE. That on or about the 10 [sic] day of November, 1988, Likinkel, Kolonia, Pohnpei State, Federated States of Micronesia, NIHLA Peter did unlawfully, having information of and knowing that an Order of the Court had been issued for the arrest of Johsper Hadley, hid Johsper Hadley in a closet in their house.. In violation of Pohnpei State Code Chapter 3 Section 3-13. COUNT II RESCUE. That on or about the 10th day of December, 1988, Likinkel, Kolonia, Pohnpei State, Federated States of Micronesia, NIHLA PETER did unlawfully having information of and knowing that Johsper Hadley was a prisoner under Order of the FSM Supreme Court and knowing that this prisoner was hiding from the police, intentionally aided and hid the person of Johsper Hadley so that this prisoner would not be arrested by the police. In violation of Pohnpei State Code Chapter 3 Setion 3-13." [3A PN.L.R.578] The only evidence before this Court is from the Government. The evidence shows that Johsper Hadley and the defendant at all times involved in this action were husband and wife. On two different occasions, the Police Department was engaged in the execution of an arrest of Johsper Hadley. The first occasion, which connects to Count I of the Information, was alleged to be based on a bench warrant of the Supreme Court of the Federated States of Micronesia. Officers involved in the arrest testified that on November 10,1988, when they went to the home of Johsper Hadley and the defendant to arrest Johsper Hadley, the defendant hid Johsper in a closet thereby violating Section 3-13 of the Pohnpei Crimes Act. I find the evidence failed to convict the defendant on Count I for two reasons. First, the criminal information charges that the defendant committed the offense on November 10, 1988. The testimonies of the officers involved in the arrest are in agreement with the Information that they executed the arrest warrant on November 10, 1988. On review of the records of the Supreme Court of the Federated States of Micronesia, notice is taken [3A PN.L.R.579] judicially that Johsper Hadley was a defendant in Federated States of Micronesia Supreme Court Criminal Case No. 1988-566. That case contains awarrant issued by the Supreme Court forthe arrest of Johsper Hadley. That bench warrant is dated November 11, 1988. No other warrant was issued by the court for the arrest of Jahsper Hadley. The relevant section of the Crimes Act which this defendant is charged to have violated reads, "Every person who shall unlawfully, knowingly and wilfully provide any assistance to any prisoner or person whose freedom of movement has been restricted by order of the court, in flight from lawful custody or place of restriction shall be guilty of rescue..." (Emphasis added). [1] In order for the defendant to be guilty of rescuing Johsper, Johsper at that time the defendant gave him aid, or hid him in the closet, must be a prisoner in flight from lawful custody or place of restriction, or his freedom of movement must have been restricted. No evidence proved that Johsper was a prisoner on November 10th. No evidence proved that he was a subject of arrest or had been arrested on November 10th by warrant or other form of court order. He must be presumed to be a free man. It should be presumed, too, that the police officers had no right trying to arrest [3A PN.L.R.580] him on November 10,1988. [2-6] Second, assuming that the warrant was issued on November 10, 1988, and that Nihla Peter did, in fact, hide Johsper Hadley in their home closet, the evidence does not establish that Johsper was' a prisoner, or that his freedom of movement had been restricted at the time of the hiding. The officers came seeking to arrest Johsper. He must be presumed to be a person, who had freedom of movement at the time of hiding, and not a prisoner. The language of the law is clear. The disposition of the person rescued (in this instance, Johsper) has to be in one of two categories: 1. a prisoner; or 2. person whose freedom of movement has been re stricted. To be a prisoner means that he has been sentenced to imprisonment priorto the rescue. To be one whose freedom of movement is restricted, means that he has been arrested pursuant to a court order. The sense of restriction here calls for actual taking of the person into police custody. The statute does not speak to the future. The language is in the past form. A warrant of arrest (court [3A PN.L.R.581] order) must have been issued, executed, and the freedom of the person rescued (Johsper Hadley) restricted (in custody of the police). Johsper Hadley was in neither of these dispositions when the defendant hid him in the closet. He had not been sentenced to imprisonment. He was not a prisoner. Even though the Supreme Court may have issued a warrant for his arrest, he had not been arrested when the defendant hid him in the closet. The officers had arrived seeking to arrest Johsper. But they had not restricted his freedom - which is to say, they had not placed Johsper in their custody. Johsper's disposition was on the verge of going into one of the categories, but it had not. The key factor in the case at bar is actual custody. The arrest process must have been completed. For once completed, Johsper would then be in police actual custody. That is when his freedom of movement is restricted in the sense of the statute. Otherwise, the act of the defendant cannot be to "rescue" him. Until arrest is completed and Johsper is in police custody, anything done before that in his aid cannot be a rescue. There is a clear distinction between this offense and the offense of obstructing justice in Section 3-1 of the Crimes Act. Obstructing [3A PN.L.R.582] justice speaks to interference prior to and during arrest, assuming the subject person is not a prisoner. Once the person is placed in custody, there can be no more obstruction of justice if aiding or assisting that person leads to escape, for that would therefore be rescue. Thus, here, Johsper was not a prisoner, and had not come into custody of the police officers by an arrest. Actual custody, an essential element in the offense of rescue may mean personal custody of a person by an officer or it may mean confinement of a person in a prison, jail or calaboos. 77 CJS Rescue, Section 3; People v. Murphy, 20 P2d 63, 130 Cal App 408. [7-8] Assuming further, that the defendant gave aid or assistance to Johsper when he had been arrested, it is another element of the offense of rescue that the act of rescuing led to the successful escape of the prisoner or person in police custody. In other words, the escape or deliverance from custody of the person rescued is essential to the consumated offense of rescue. Termination by force of the custody of an officer over his prisoner may constitute rescue before the prisoner makes an escape. Murphy, supra. As in the case at bar, Johsper did not escape as a result of what this defendant did. [3A PN.L.R.583] It follows therefore that this defendant cannot be convicted of the offense of rescue for the act she is alleged having done. On the second occasion, which leads to Count II, the evidence showed that Johsper Hadley was committed to jail on November 14, 1988, by order of the Supreme Court of the Federated States of Micronesia, subject to bail of $250.00. The bail was not paid and he remained until December 9, 1988, when he escaped from the jail. He was a fugitive until December 1988, when he was apprehended again. [9] During his period of liberty, Johsper Hadley was being sought to be arrested. The evidence shows that the officers searched for this fugitive on December 10, 1988, at the home of the defendant. In the early hours of that day, Johsper came to this home, changed clothes and left. He met the defendant, but no evidence showed that the defendant did what would constitute rescue. Johsper merely went to the home of the defendant, their home, changed clothes and left. The closest situation that one may construe that might constitute rescue on the part of this defendant is her knowledge of Johsper's entry in her home and change of clothes. [3A PN.L.R.584] But mere knowledge of the whereabouts of a fugitive is certainly not an offense of rescue. This was the home of the defendant and her husband Johsper Hadley. Johsper had all the rights, as husband, to enter the home and change his clothes, without the knowledge or consent of the defendant. Thus, her knowing that Johsper entered their home and changed clothes is not unlawful. She did not aid or assist the prisoner. The prisoner acted on his own. Absent any proof of any act of the defendant to provide assistance to Johsper, she must be found innocent. CONCLUSION The defendant, Nihla Peter, is found not guilty and is therefore acquitted of Count I - Rescue, and Count II - Rescue, of the Information.