1 MILR (Rev.) 18

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CRIM. NO. 83-01
(High Ct. Crim No. 1982-008)

REPUBLIC OF THE MARSHALL ISLANDS
Appellee,

-v-

BIRTHOOVEN AMACIO DIGNO,
Defendant-Appellant.

APPEAL FROM THE HIGH COURT

AUGUST 6, 1984

BURNETT, C.J.

SUMMARY:

In this case, the defendant was charged with murder and found guilty of voluntary manslaughter. The Supreme Court found that for a murder case the High Court was not constituted as required by law and consequently lacked jurisdiction. The Supreme Court set aside the judgment of the High Court and remanded the matter for further proceedings consistent with the Court's decision.

DIGEST:

1. APPEAL AND ERROR – Questions Reviewable – Questions of Law: Generally, the Supreme Court will not consider a matter which has not been raised by way of objection in the trial court; however, an appellate court may take up a question of law on its own motion, if there is a basis for it in the record.

2. COURTS – Composition: A trial court not constituted as required by law lacks jurisdiction determine cases before it.

OPINION OF THE COURT BY BURNETT, C.J.

Appellant Digno was initially charged by Information with the offense of Murder in the First Degree. A second amended Information charged, in Count One, Murder in the Second Degree and, in Count Two, Assault and Battery with a Dangerous Weapon. Following trial to the High Court, jury having been waived, he was found, as to the first count, not guilty of Murder, but guilty of the lesser and included offense of Voluntary Manslaughter; as to count two, he was found guilty as charged.

Timely Notice of Appeal was filed, following an extension of time within which to do so, and after certification of the record, Appellant's brief was timely filed. No brief was filed by Appellee, though granted an extension of time for that purpose.

Numerous specifications of error are made. Only one need concern us, that trial court was not constituted according to then-applicable law. I note that this claim of error was neither urged at trial, nor included in the grounds asserted in the Notice of Appeal; it appears for the first time in the appellate brief.

[1] Generally it can be said that the Court will not consider a matter which has not been raised by way of objection in the trial court. The Appellate Division, High Court of the Trust Territory, however, has held that an appellate court may take up a question of law on its own motion if there is a basis for it in the record. Crisostimo v. Trust Territory, 7 TTR 375 (App. Div. 1976). Such a rule is particularly appropriate to the error here claimed which presents a question as to the jurisdiction of the trial court, as it was constituted at the time of trial.

The general rule that an objection that the trial court was without jurisdiction of the subject matter may be raised for the first time in the appellate court would seen to be applicable in the case where such want of jurisdiction is due to the constitution of the court or tribunal rendering the judgment complained of. 5 Am Jur 2d, Appeal and Error § 584

To the same effect, see 4A C.J.S. Appeal and Error § 691:

The record on appeal is fatally defective if it fails to show that the lower court ….was presided over by the judge or judges lawfully designated for that purpose.

Also, see 4 Wharton's Cr. Law and Proc., Sec. 1464, which refers to the absence of an associate or side bar judge as "fatal."

Under the Constitution, the High Court consist of "a Chief Justice and such number of other judges as may from time to time be prescribed by Act." Article VI Section 3.

The Constitution also provides, in Article XIII Section 1(1) (A) "the existing law shall, until repealed or revoked, and subject to any amendment thereof, continue in force in and after the effective date of this Constitution." Article XIV defines existing law as "the law in force in the Marshall Islands immediately before the effective date of this Constitution ...."

At the time of trial, 5 TTC § 204 provided:

"(2) when a murder case is assigned for trial, the judge of the high court ... shall assign two of the special judges ... to sit with him in the trial thereof. The special judges shall participate with the presiding judge in deciding, by majority vote, all questions of fact or sentence ... If the trial is by jury, however, the special judges shall participate only as assessors and in deciding on the question of sentence."

5 TTC § 204 was "existing law" under the Constitution, was in effect at the time of trial, and remained applicable until its repeal by Public Law 1983-8, the "Judiciary Act 1983."

There is the temptation to hold that the defect was cured when the court, sitting alone, found appellant guilty of Voluntary Manslaughter, an offense which did not require the special judges. Such a conclusion would, however, miss the point – the court never acquired trial jurisdiction.

And, of course, we are unable to give effect to the Judiciary Act, since it came long after the act which appellant was charged with having committed. See the "ex post facto" clause contained in the Constitution, Article II Section 8(1).

[2] I conclude that the trial court was not constituted as required by law, and consequently lacked jurisdiction. The judgment must be, and hereby is, set aside, and the matter remanded for further proceedings in accord with the views I have expressed herein.

IT IS SO ORDERED.