Cite as KSA State vs. Weilbacher,
Kosrae St. (1989)

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     On January 19, 1989, this case came on for trial. Patrick Olter, FSM Public Defender, represented the defendant, Kumeko H.Weilbacher, and Robinhood Noda, State Prosecutor, represented the plaintiff.

     The defendant was charged with one count of violating the Kosrae Code, to wit:

     "On or about 24 September 1988 at Kenyela Section in Lelu Municipality, defendant committed the offense of Disturbing the Peace by spitting at victim and using expression "Negro" and "Fomesr Inkupumtal" which act unreasonably annoys victim Emma E. Aliksa and Ernie Aliksa so that they were deprived of peace and quiet, which act provokes a breach of the peace in violation of Title 13 Section 13.503 of the Kosrae Code."

     Section 13.503 of the Kosrae Code provides:

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     "Disturbing the Peace Disturbing the Peace is wilfully committing any act which unreasonably annoys or disturbs another so that he is deprived of peace and quiet, or which provokes a breach of the peace. Disturbing the Peace is a category-two misdemeanor."

     At the trial, evidence was introduced which indicated that on the afternoon of September 24, 1988, defendant was a passenger riding in the back of a pickup truck which was being driven along a street in the municipality of Lelu.

     When the truck was passing in front of the home of the victim, Ernie Aliksa, the defendant called out the word, "Negro" and the expression "Fomesr Inkupumtal" (the English translation of the latter expression is "smelly asses"). The defendant then spit in the direction of Ernie Aliksa's property. Ernie Aliksa was reclining on his front porch as these events occurred . . Ernie Aliksa's wife and sister-in-law were in the open sided cookhouse next door to where Mr. Aliksa was reclining and they heard and observed the above occurrence.

     The truck carrying the defendant continued on its way past the Aliksa property and did not stop.

     There was also testimony that friends of Ernie Aliksa sometimes called him by the name "negro" and this did not bother him. The defendant was not one of the friends permitted to use this name. Ernie Aliksa testified that his peace and quiet were disturbed when the defendant called out this name and used the phrase "fomesr inkupumtal".

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     Ernie Aliksa's wife and sister-in-law testified that they observed the above incident but they did not testify that their peace was disturbed.

     The facts in this case are fairly clear. The defendant, riding in the back of a moving pickup truck, shouted some phrases to and spit in the direction of a person or group of person. At least one person was insulted by these phrases and this action and sought relief thru the criminal justice system.

     The issue before this Court is whether, regardless of the propriety of these actions, these actions under these circumstances, are sufficient to convict for the criminal offense of "disturbing the peace"?

     With regard to the two phrases issued, the Court would like to first observe there is nothing inherently wrong, improper, slanderous, or illegal with the word "negro". Further, while the phrase "fomesr inkupumtal" is certainly not a flattering one and perhaps offensive to many persons, the legislature has not, as with other phrases1, chosen to make its utterance in particular settings an illegal act.

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     Therefore, the mere uttering of these phrases does not alone constitute the commission of the crime of disturbing the peace.

     In order for a person to be found guilty it must be proven that the defendants acts "unreasonably annoys or disturbs another so that he is deprived of peace and quiet . . . ." Here, the defendant shouted certain phrases from a moving truck, during the middle of the day, toward a person or small group of persons and promptly left the area.

     While this court has previously recognized that words alone can constitute the offense of disturbing the peace2, this court will look not only at the words spoken and actions taken but at all the circumstances of the case in determining whether or not the crime of disturbing the peace has been committed.

     This Court points out that in 12 Am Jur 2d Breach of Peace, etc. X10, it states, in part:

"Abusive, profane, indecent, or otherwise provocative language may amount to a breach of the peace, although this appears to depend to a great extent on the particular circumstances."

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     In considering the particular circumstances of this case, it is the opinion of this Court that the facts were not such to so unreasonably annoy or disturb the victim as to constitute the crime of disturbing the peace. Therefore, this court finds that the defendant is not guilty of disturbing the peace.

SO ORDERED on this 19th day of January, 1989.

Harry H. Skilling
Chief Justice

1.   In certain situations in Kosrae, it is a crime to use the expression 'lufunkiom'. See Kosrae Code 13.609 (Back to Opinion)

2.   See Kosrae State v. Erwine G. Mongkeya, 1988 Kosrae State Court, Criminal Case No. 129-88 (Back to Opinion)