American Samoa Gov’t; Fe'a v.

FE'A of Iliili, Appellant

 

v.

 

GOVERNMENT OF AMERICAN SAMOA, Appellee

 

High Court of American Samoa

Criminal Jurisdiction, Appellate Division

 

 No. 4-1955

 

March 17, 1955

 

__________

 

      Appeal from judgment of District Court convicting defendant for failure to search for coconut beetle as required by CAS 1003 and for failure to assist in building village pig wall. Appellate Division: of the High Court, Chief Justice Morrow, reversed first conviction for failure to search for beetle on grounds that defendant's eye sight was defective and he could not see beetles, but affirmed second conviction, reducing sentence.

              Judgment reversed in part; sentence modified.

 

1. Appeal and Error-Criminal Appeal-Review of Fact

In case of appeals from District Court, Appellate Division of the High Court may review facts as well as law, and in criminal appeals, appellate [3ASR497] court may set aside judgment of conviction, order new trial, commute, reduce, or suspend execution of sentence.

2. Criminal Law-Defenses-Defective Eyesight

Where defendant's eyesight is defective, he is not required to comply with statute requiring that he search for coconut beetle and attaching penalty for failure to do so.

3. Criminal Law-Defenses-Defective Eyesight

Defective eyesight is not defense to failure to assist in building village pig wall, such failure being misdemeanor, if defendant could have performed work and been of assistance.

 

ARTHUR A. MORROW, Chief Justice; TAUALA, Associate Judge; and MAILO, Temporary Associate Judge.

 

OPINION, SETTING ASIDE JUDGMENT, AND REDUCTION OF SENTENCE

 

       Appeal from a judgment of the District Court for the Third District. Heard before Morrow, Chief Justice, Tauala, Associate Judge, and Mailo, Temporary Associate Judge, at Fagatogo on March 8, 1955.

 

MORROW, Chief Justice

 

            Fe'a of Iliili was convicted in the District Court for the Third District on February 3, 1955 on one count for failure to search for the coconut beetle as required by Sec. 1003 of the A. S. Code and on another count for failure to abide by a village regulation of Iliili requiring him to assist in building. a village pig wall. He was sentenced by the District Court to pay a fine of $2.00 within two weeks or go to jail for four days. His appeal from the judgment is based upon the alleged ground that his eyesight is so defective that it was physically impossible for him to have searched for the coconut beetle or to have assisted in building the village pig wall.

            [1] The applicable part of the statute governing the powers of the Appellate Division on appeal is as follows: [3ASR498]

 

"...in the case of appeals from the district courts the Appellate Division of the High Court may review the facts as well as the law. In a criminal case the Appellate Division of the High Court may set aside the judgment of conviction and, if the defendant has appealed or requested a new trial, order a new trial, or may commute, reduce (but not increase) or suspend the execution of the sentence." Amendments, Nos. 11-59, 1952, § 10, Part E, See. 213.

 

            Of course the law does not, under the circumstances of this case, require the doing of acts by the appellant which it is humanly impossible for him to perform, under pain of punishment if he does not perform them.

            [2] We are convinced upon our review of the facts that the appellant's eyesight was so defective that it was impossible for him to have searched for the coconut beetle. Searching for the beetle requires eyesight capable of discerning the kino of a place in the soil where the grub should be found. The appellant is completely blind in his right eye and the eyesight in the other is impaired. The evidence clearly indicates, however, that even with his defective eyesight, the appellant can and does go about the village of Iliili unaided, go to his plantations and do the necessary work therein for raising taro and bananas, climb coconut trees on his plantations, pull down coconuts, cut them in two, and take out the coconut meat with a knife for the production of copra. We think that a man able to do these things unaided is able to see well enough to assist in building a village pig wall.

            [3] We think the conviction for failure to assist in building the village pig wall was right and that the conviction for failure to search for the coconut beetle was an error.

            We set aside the judgment of conviction for failure to search for the coconut beetle. We affirm the judgment of conviction for failure to assist in building the village pig wall. [3ASR499]

            We reduce the sentence of Fe'a in the District Court for the Third District from a fine of $2,00 payable within two weeks or four days in jail to a fine of $1.00 payable within two weeks from March 17, 1955 or two days in the Island Government prison.


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