Cite as Kosrae v. George. (Kosrae 1989)

[Kos. St. pg 01]






     On April 21, 1989 a hearing was held where this Court considered a Consolidated Motion to Dismiss and to Merge offenses filed by the defendant.

     By prior order of this Court dated April 21, 1989, all issues except one in defendant's consolidated motion were resolved.

     On April 21, 1989, this Court took under advisement the following issue:


     Does the Kosrae State Court have jurisdiction to try a case under KC 13.301, Aggravated Assault or is it a 'major crime' subject only to the jurisdiction of the FSM Supreme Court?

     The defendant, Webster George, asserts that the Kosrae State Court does not have jurisdiction to hear cases under KC 13.301 because it violates provisions of the FSM Constitution.

     In order to resolve the issue presented it is necessary to review the applicable constitutional and statutory references.

[Kos. St. pg 02]

     KC 13.301 provides:

     "Aggravated Assault is assaulting, striking, beating or wounding another with a dangerous weapon, with an intent to kill, rape, rob, inflict grieveous bodily harm or to commit any other felony. Aggravated Assault is a category one (1) felony."

     The FSM Constitutional provision upon which Webster George bases his motion is found in Article IX, Section 2 which, in part, provides:

"The following powers are expressly delegated to Congress:
(p) to define major crimes and prescribe penalties, having due regard'for local custom and tradition:

     In implementing this Constitutional provision the FSM Congress enacted Sections 901 and 902 of the FSM Code which, at the time of Mr. George's alleged activities, provided:

901:      "The National Government of the FSM has exclusive jurisdiction over all major crimes, as defined in Section 902 of this chapter, pursuant to Article IX, Section 2(p) of the Constitution of the FSM."

902: " 'Major Crimes' are defined a's follows:

(1)      all crimes which are punishable by imprisonment for a period of three years or more; and

(2)      all crimes resulting in loss or theft of property or services in the value of 1,000 or more, as well as any attempt to commit such crimes."

[Kos. St. pg 03]

     From an analysis of Section 902, above, with the exception of crimes involving "loss or theft of property or services", the FSM, chose to define 'major crimes' strictly on the basis of potential punishment. By definition, the FSM Congress limited 'major crimes' to those crimes which are "punishable by imprisonment for a period of three years or more."

     At the time of the alleged incident, KC 13.1201 established the potential penalty for violation of class one (1)
felonies, like Aggravated Assault, as follows:

"Imprisonment not exceeding Thirty Five months, a fine not exceeding Twenty Thousand Dollars, or, both".

     It is quite evident that based on the FSM definition of 'major crimes', aggravated assault under the Kosrae Code is not a 'major crime' because in Kosrae the penalty cannot exceed 35 months imprisonment.

     Therefore, since by the definition chosen by the FSM Congress, aggravated assault under the Kosrae Code is not a 'major crime', the Kosrae State Court does have jurisdiction of cases wherein violations of KC 13.301 have been alleged.
In the defendant's brief he urges this Court to look to the severity and nature of the crime in determining whether a crime is "major".

     Language from the committee on governmental functions (at SCREP No. 33, II J. of Micro. Con. Con. 819) tends to support defendant's position when it states:

[Kos. St. pg 04]

18.      "Criminal Law. Page 3, line 14. Your Committee feels that a rational clear-cut distinction between the authority of the national government and that of the state government ought to be made in the area of criminal law and that the distinction ought to be based on the severity of the crime. Your Committee also feels that the national government ought to take local custom into consideration in legislating regarding crimes. Your Committee~has therefore provided that the national government should have authority over major crimes, should be empowered to distinguish between "major" and "minor" crimes and that in enacting such legislation should take local custom into account."

     However, before this Court will look to the history behind the constitutional language found in Article IX, Section 2, there must first be uncertainty as to the meaning of the words in question. As stated in FSM v. Tipen, 1 FSM Intrm. 79 (Pon. 1982) at p. 82:

"Analysis of the constitution must start with the words of the constitutional provision. If these words are clear and permit only one possible result, the Court should go no further."

     In our situation the Constitution gives the FSM Congress the power "to define major crimes ...." The FSM Congress clearly elected to define 'major crimes' in terms of potential punishment limits. The punishment limit set by Kosrae for "aggravated assault" under Kosrae law is less than the FSM's definition of a 'major crime'. The language is clear and the result is plain. Kosrae State Court has subject matter jurisdiction of cases involving Section 13.301 of the Kosrae Code.

     If the FSM Congress intended to prohibit the various states from having jurisdiction over certain specific crimes, they should redefine "major crimes".

[Kos. St. pg 05]

IT IS THEREFORE the opinion of this Court that this Court has jurisdiction over Count I alleging aggravated assault under KC 13.301 and that the motion requesting that Count I be dismissed should be denied.

     SO ORDERED this 3rd day of May,,1989.

                              Harry H. Skilling Chief Justice
     Entered this 8th day of May, 1989.

                              Chief Clerk of Court, Kosrae