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Purako v Efou [1955] TTLawRp 7; 1 TTR 236 (18 March 1955)

TRIAL DIVISION OF THE HIGH COURT

TRUK DISTRICT

Civil Action No. 36

PURAKO
Plaintiff

v.

EFOU, Secretary of Moen Municipality
Defendant

March 18, 1955

Petition for writ of habeas corpus averring that petitioner was wrongfully imprisoned by community court for "being married to another man while her husband was still alive." On official record prepared more than one month after trial, accused was charged and found guilty of adultery. The Trial Division of the High Court, Associate Justice James R. Nichols, held that petition presented proper grounds for writ of habeas corpus, that community court had no jurisdiction to convict person of bigamy and any such conviction is void. The Court also held that defendant was divorced from first husband under Truk customary law and this was not criminal offense, and that drafting of complaint subsequent to trial charging person with commission of offense not mentioned at trial has no legal effect.

Writ granted.

1. Constitutional Law-Due Process

Due process of law has acquired widely known meaning in United States as guaranteeing part of ancient English liberties confirmed in Magna Charta in 1215.

2. Constitutional Law-Due Process

Words "due process of law," when used by Americans in Trust Territory Bill of Rights, must be presumed to mean the same thing they do in United States in those situations to which they are applicable.

3. Habeas Corpus-Jurisdictional Error

Writ of habeas corpus reaches jurisdictional error only and cannot properly be used to serve mere purpose of appeal or writ of error. (T.T.C., Sec. 4)

4. Habeas Corpus-Jurisdictional Error

No court may properly release prisoner held under warrant, conviction, or sentence of another court, unless for want of jurisdiction or some other matter rendering its proceedings void.

5. Habeas Corpus-Jurisdictional Error

Jurisdiction of court or judge to make order, judgment or sentence by which person is imprisoned is always proper subject of inquiry on habeas corpus.

6. Habeas Corpus-Jurisdictional Error

If alleged excess or want of jurisdiction is found to exist, judgment or order is absolutely void and prisoner may be discharged from custody.

7. Courts-Community Courts

Jurisdiction of Community Courts in criminal cases is limited to those in which maximun punishment which may be imposed does not exceed one hundred dollars or imprisonment for six months, or both. (T.T.C., Sec. 149)

8. Courts-Community Courts

Community Court has no jurisdiction to try any person for bigamy, and conviction of this offense in Community Court is void. (T.T.C., Sec. 406)

9. Truk Custom-Divorce-Recording

Under Truk custom, any marriage may be dissolved by either spouse at any time at will without action by any court, magistrate or other official.

10. Truk Custom-Divorce

Under Truk custom, marriage may be dissolved by either spouse "throwing away" other spouse.

11. Truk Custom-Divorce-Recording

While order issued during Navy Administration that divorces be recorded in municipal offices resulted in evidence of divorce, order was repealed and recording or failure to record in municipal office a divorce effected in accordance with local custom has no effect on validity of divorce.

12. Truk Custom-Divorce- Criminal Liability

Under Truk custom, "throwing away" of spouse does not constitute crime, and conviction of such alleged offense in Community Court is void.

13. Truk Custom-Divorce-Civil Liability

Under Truk custom, liability for civil damages may result from "throwing away" of one's spouse.

14. Criminal Law-Complaint

Drafting of complaint subsequent to trial, charging person with commission of specific offense not mentioned at trial and not included within offense charged at trial and against which that person has had no opportunity to defend himself, has no legal effect.

15. Appeal and Error-Scope of Review-Record

When it is clearly shown that official record is in error, it is duty of appellate court to consider facts.

NICHOLS, Associate Justice

FINDINGS OF FACT

1. Early in December, 1954, the plaintiff Purako was notified that she should appear before Albert M., Judge of the Community Court of Moen Island, for a trial about her divorce from her husband, Udong. This notification was made by a letter written by Rekis, Clerk of the Community Court, and delivered on Dublon Island by a private person not duly appointed to serve process. At no time prior to the trial was a citation or penal summons issued or an arrest made.

2. Purako, the plaintiff herein, Udong, the complainant in the Community Court, and their witnesses appeared before Judge Albert M. in the meeting house on Moen Island on December 8, 1954. At the opening of "the proceeding the judge asked the plaintiff if she was ready to proceed with the trial about her divorce and she replied in the affirmative. The judge then told the plaintiff that she was before the court because she had divorced her husband and taken another man. No specific criminal charge was made at the beginning of or during the course of the trial, and at no time was the plaintiff herein given an opportunity to offer a defense to any criminal charge. However, during the course of the trial the judge did ask the plaintiffs witnesses if they did not think her, Purako, guilty of bigamy because she was married to two men at the same time. Then, before announcing his decision, the judge asked the plaintiff herein if she were guilty of "throwing away" her first husband, Udong, and she replied in the affirmative. The judge then announced that he found the plaintiff Purako guilty of being married to another man while her husband was still alive and sentenced her to three months hard labor. The plaintiff was, on that same day, turned over to the defendant Efou, who caused her to begin serving her sentence on the authority of the judge's oral commitment. The execution of this sentence was suspended by order of this court on February 24, 1955, following a hearing held herein on that date.

3. It is agreed that the plaintiff "threw away" her first husband, Udong, but this fact was never recorded at the Moen Island Municipal Office. It is further agreed that, at the time of the alleged offense, the plaintiff herein and one Uerner were living as man and wife under the claim that they were legally married.