American Samoa Gov’t v. Tulei;

GOVERNMENT OF AMERICAN SAMOA, Plaintiff

 

v.

 

TULEI, TUSI MAMEA, LUAAO L., FIATAU, TI and

TUIVAIFANUA, all of Aoa, Defendants

 

High Court of American Samoa

Criminal Jurisdiction, Appellate Division

 

No. 1-1951

 

February 12, 1951

 

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            Appeal from conviction of District Court for larceny of pig. Six defendants were convicted and one was acquitted. Appellate Jurisdiction of the High Court, Chief Justice Morrow, affirmed conviction, holding that defendant who was not present during killing, but helped to bind pig was accessory before the fact and therefore a principal under Code.

              Convictions affirmed.

 

1. Criminal Law-Accessory Before the Fact-Considered Principal

Accessory before the fact is one who procures, commands, or counsels commission of felony by another but who is not present when felony is committed, and under Code such accessory is principal. (CAS 805.)

2. Criminal Law-Defenses-Duress

Lower court's acquittal of sixteen year old boy who went along with criminals because he feared bodily harm was correct.

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A. A. MORROW, Chief Justice; LETULIGASENOA, District Judge; and TIAMALU, District Judge.

 

DECISION

 

Heard at Fagaitua January 19, 1951.

Tulei, Tusi M., Luaao L., Fiatau, Ti, and Tuivaifanua appeared pro se.

The facts sufficiently appear in the opinion.

 

MORROW, Chief Justice.

 

            This is an appeal from a judgment rendered in District Court No. 2 by the terms of which the appellants Tulei, Tusi, Luaao, Fiatau, Ti and Tuivaifanua were each ordered to pay a fine with an alternate jail sentence if the fine should not be paid, they having been convicted of the [2ASR657] larceny of a pig, the property of one Tauilo. Ieti, a sixteen year old boy, who was tried with the defendants was acquitted upon the ground that his participation in the theft was the result of duress which deprived him of the necessary criminal intent.

            We are convinced from the evidence that beyond a reasonable doubt the appellants conspired to kill Tauilo’s pig and to take it away, cook it and eat it; that Ti handed a shot gun to Ieti and that then Luaao told him in a threatening manner to kill the pig and that Ieti, fearing great bodily injury to himself if he did not do so, killed the pig with Tulei, Tusi, Luaao, Fiatau and Ti present. Tuivaifanua was not present at the killing although he participated in the conspiracy. Later he joined the other defendants while the pig was being bound up preparatory to being taken to the place where it was to be cooked. Not only was he present at the binding of the pig but he held a gasoline light to assist in the binding. We think that his participation made him a principal and subject to trial with the other defendants. However, it is certain that under the common law he was accessory before the fact although he was not present at the killing.

            [1] "An accessory before the fact is one who procures, commands, or counsels the commission of a felony by another, but who is not present, either actively or co11struc1ively, when the felony is committed." Clark & Marshall, Crimes (4th Ed.) Sec. 169. Section 805 of the American Samoan Code provides that "Whoever directly commits any act constituting an offence defined in any law of the United States applicable in American Samoa or in any law of American Samoa, or aids, abets, counsels, commands, induces, or procures its commission is a principal." In view of the section just quoted the defendant Tuivaifanua was in law a principal since he counseled the theft. [2ASR658]

            The evidence shows that after the pig was bound it was taken away and partially cooked in one place, then moved to another place and cooked some more, and finally moved to a third place where the cooking was completed. The cooked pig was then taken to a fale where all the appellants helped to eat it.

            [2] In view of our conclusion as to the evidence we believe that the conviction of the appellants and the acquittal of defendant Ieti in the lower court was proper. As before stated, Ieti is a boy only 16 years of age. We think that he reasonably believed that if he did not shoot the pig, he would be subjected to serious bodily injury.

            The judgment of District Court No. 2 ordering Tulei to pay fine of $24.00 within 30 days or go to jail for 5 weeks Tusi, Luaao, Ti, Fiatau and Tuivaifanua each to pay a fine of $35.00 within 30 days or go to jail for 7 weeks is affirmed. Costs in the sum of $2.00 are hereby assessed against each of the appellants, the same to be paid within 30 days.

 

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