SHRIVER, District Judge.
The Deputy Island Attorney of Guam charged the defendant by information with two offenses of the infamous crime against nature under one charge, and the offense of sex perversion in the second charge. The second charge was not proven. Except for a feeble attempt to show alibi the defendant did not take the stand or otherwise establish a defense. The Government’s evidence established that on two occasions the defendant invited and permitted members of the armed services of the United States to use him as the passive partner in the act of sodomy. The members of the armed services were 20 and 21 years of age, respectively, while the defendant is a man of much greater maturity. The members of the armed services were not charged with any offense by the Government of Guam as they are subject to military justice but they readily testified to the commission of the acts charged and their testimony was cor[908]*908roborated by a third member of the armed services. The first question presented is as to whether the defendant, as the passive partner in the act of sodomy, is guilty of the infamous crime against nature.
Sec. 286 of the Penal Code of Guam1 was taken from the same section of the Penal Code of California. As such it may be construed in the light of California decisions.2 The California courts have held that the offense known as the infamous crime against nature is a crime in California, notwithstanding the fact that Sec. 286 simply fixes a punishment for the offense.3 In the case of People v. Featherstone, 67 Cal.App.2d 793, 155 P.2d 685, 687, the court stated:
“Undoubtedly, where the persons participating in an offense of this character do so without compulsion, each is an accomplice of the other, and is liable to prosecution as such. Pen. Code, 31. In such case there is a common intent to unite in the attempt to commit the offense.” (Citing cases.)
This statement accords with the general principle that the definition of an accomplice, as made by the substantive law, usually suffices and is followed.4 The substantive law is Sec. 31 of the Penal Code of Guam.5 Under this section the defendant is a principal and as such may be prosecuted.
The defendant next contends that the District Court of Guam is without jurisdiction to try him in the absence of indictment and trial by jury. In United States v. Seagraves, 100 F.Supp. 424, this court had before it the question as to whether the District Court of Guam created by the Organic Act of Guam, 48 U.S.C.A. § 1421 et seq., in the exercise of the jurisdiction of a district court of the United States,6 could try a defendant accused of a felony by the [909]*909United States, without indictment and trial by jury, unless waived. That opinion held that there is no constitutional right to indictment and trial by jury in unincorporated territories; that the United States Congress did not include the right to trial by jury in the Bill of Rights for Guam for the reason that Guamanians derive their tradition in law from Spain, a civil law nation, they have little knowledge or experience in trial by jury; that the District Court of Guam is required to follow the Federal Rules of Criminal Procedure, 18 U.S.C.A., but that Rules 7(a) and 23(a) of such rules were intended to give effect to the procedural requirements of the United States Constitution, which procedural requirements are not applicable to unincorporated territories unless the United States Congress makes them applicable; and that the United States Congress did not make 28 U.S.C.A. Ch. 121 applicable to the District Court of Guam; that the United States Congress did not intend that the procedural rights to indictment and trial by jury should apply to the District Court of Guam at the present time.
This is a prosecution by the Government of Guam. The Guam legislature has made no provision for indictment and trial by jury as it has a right to do when it is of the view that the Guamanian people are ready for a jury system. It necessarily follows that the defendant is not entitled to indictment and trial by jury.
The defendant finally contends that this court is without jurisdiction to try a defendant on the basis of an information filed by the Island Attorney of Guam, through his deputy, but that only the United States Attorney has the authority to file in-formations in this court. This question is raised for the first time and requires a complete analysis of the exercise of jurisdiction by this court over local felonies prosecuted in this court by the Government of Guam. The judiciary provisions contained in the Organic Act of Guam, as originally approved, are set forth in note 6, supra. [910]*910Prior to the passage of the Organic Act of Guam original jurisdiction in all felony cases was vested in the Island Court of Guam.7 Sec. 22 of the Organic Act establishing the jurisdiction of the District Court of Guam could be understood as meaning that such court had original jurisdiction over local felonies and all other causes in Guam until the legislature created by the Organic Act of Guam transferred jurisdiction to other court or courts established by it. Such construction was placed on Sec. 22 in Crain v. Government of Guam, 9 Cir., 195 F.2d 414, 416. The question involved in the Crain case was as to whether the Government of Guam was immune from suit without its consent, but in analyzing the powers of the Government of Guam, the court said:
“Conceivably then, the district court expressly established could have a complete original jurisdiction in all causes cognizable in a court of law, to the same extent as in courts of the states of the United States.”
The Crain case held that the Government of Guam has such sovereignty as to be immune from suit without its consent.8
In an effort to establish a judicial system for Guam in the best modern tradition, the Government of Guam invited and the Honorable Albert B. Maris, a judge of the United States Court of Appeals for the Third Circuit, made himself available in Guam to advise on such a system. As a result of Judge Maris’ studies and preparation of the recommended legislation, the Guam Legislature enacted, with minor changes, Public Law 17, First Guam Legislature, approved Aug. 9, 1951. This Act revised and amended Part I of the Code of Civil Procedure for Guam. The Act provided for the organization and jurisdiction of the courts, appointment and tenure of local judges, created a Judicial Council and a Department of Law. The Act further provided for admission to practice of attorneys at law and in general provided for a comprehensive system'for the administration of justice in Guam.
Part I, Title I, Ch. II of the Code of Civil Procedure for Guam provides: 9
[911]*911Sec. 82 of the Code vested original jurisdiction in the Island Court exclusive of the District Court.
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SHRIVER, District Judge.
The Deputy Island Attorney of Guam charged the defendant by information with two offenses of the infamous crime against nature under one charge, and the offense of sex perversion in the second charge. The second charge was not proven. Except for a feeble attempt to show alibi the defendant did not take the stand or otherwise establish a defense. The Government’s evidence established that on two occasions the defendant invited and permitted members of the armed services of the United States to use him as the passive partner in the act of sodomy. The members of the armed services were 20 and 21 years of age, respectively, while the defendant is a man of much greater maturity. The members of the armed services were not charged with any offense by the Government of Guam as they are subject to military justice but they readily testified to the commission of the acts charged and their testimony was cor[908]*908roborated by a third member of the armed services. The first question presented is as to whether the defendant, as the passive partner in the act of sodomy, is guilty of the infamous crime against nature.
Sec. 286 of the Penal Code of Guam1 was taken from the same section of the Penal Code of California. As such it may be construed in the light of California decisions.2 The California courts have held that the offense known as the infamous crime against nature is a crime in California, notwithstanding the fact that Sec. 286 simply fixes a punishment for the offense.3 In the case of People v. Featherstone, 67 Cal.App.2d 793, 155 P.2d 685, 687, the court stated:
“Undoubtedly, where the persons participating in an offense of this character do so without compulsion, each is an accomplice of the other, and is liable to prosecution as such. Pen. Code, 31. In such case there is a common intent to unite in the attempt to commit the offense.” (Citing cases.)
This statement accords with the general principle that the definition of an accomplice, as made by the substantive law, usually suffices and is followed.4 The substantive law is Sec. 31 of the Penal Code of Guam.5 Under this section the defendant is a principal and as such may be prosecuted.
The defendant next contends that the District Court of Guam is without jurisdiction to try him in the absence of indictment and trial by jury. In United States v. Seagraves, 100 F.Supp. 424, this court had before it the question as to whether the District Court of Guam created by the Organic Act of Guam, 48 U.S.C.A. § 1421 et seq., in the exercise of the jurisdiction of a district court of the United States,6 could try a defendant accused of a felony by the [909]*909United States, without indictment and trial by jury, unless waived. That opinion held that there is no constitutional right to indictment and trial by jury in unincorporated territories; that the United States Congress did not include the right to trial by jury in the Bill of Rights for Guam for the reason that Guamanians derive their tradition in law from Spain, a civil law nation, they have little knowledge or experience in trial by jury; that the District Court of Guam is required to follow the Federal Rules of Criminal Procedure, 18 U.S.C.A., but that Rules 7(a) and 23(a) of such rules were intended to give effect to the procedural requirements of the United States Constitution, which procedural requirements are not applicable to unincorporated territories unless the United States Congress makes them applicable; and that the United States Congress did not make 28 U.S.C.A. Ch. 121 applicable to the District Court of Guam; that the United States Congress did not intend that the procedural rights to indictment and trial by jury should apply to the District Court of Guam at the present time.
This is a prosecution by the Government of Guam. The Guam legislature has made no provision for indictment and trial by jury as it has a right to do when it is of the view that the Guamanian people are ready for a jury system. It necessarily follows that the defendant is not entitled to indictment and trial by jury.
The defendant finally contends that this court is without jurisdiction to try a defendant on the basis of an information filed by the Island Attorney of Guam, through his deputy, but that only the United States Attorney has the authority to file in-formations in this court. This question is raised for the first time and requires a complete analysis of the exercise of jurisdiction by this court over local felonies prosecuted in this court by the Government of Guam. The judiciary provisions contained in the Organic Act of Guam, as originally approved, are set forth in note 6, supra. [910]*910Prior to the passage of the Organic Act of Guam original jurisdiction in all felony cases was vested in the Island Court of Guam.7 Sec. 22 of the Organic Act establishing the jurisdiction of the District Court of Guam could be understood as meaning that such court had original jurisdiction over local felonies and all other causes in Guam until the legislature created by the Organic Act of Guam transferred jurisdiction to other court or courts established by it. Such construction was placed on Sec. 22 in Crain v. Government of Guam, 9 Cir., 195 F.2d 414, 416. The question involved in the Crain case was as to whether the Government of Guam was immune from suit without its consent, but in analyzing the powers of the Government of Guam, the court said:
“Conceivably then, the district court expressly established could have a complete original jurisdiction in all causes cognizable in a court of law, to the same extent as in courts of the states of the United States.”
The Crain case held that the Government of Guam has such sovereignty as to be immune from suit without its consent.8
In an effort to establish a judicial system for Guam in the best modern tradition, the Government of Guam invited and the Honorable Albert B. Maris, a judge of the United States Court of Appeals for the Third Circuit, made himself available in Guam to advise on such a system. As a result of Judge Maris’ studies and preparation of the recommended legislation, the Guam Legislature enacted, with minor changes, Public Law 17, First Guam Legislature, approved Aug. 9, 1951. This Act revised and amended Part I of the Code of Civil Procedure for Guam. The Act provided for the organization and jurisdiction of the courts, appointment and tenure of local judges, created a Judicial Council and a Department of Law. The Act further provided for admission to practice of attorneys at law and in general provided for a comprehensive system'for the administration of justice in Guam.
Part I, Title I, Ch. II of the Code of Civil Procedure for Guam provides: 9
[911]*911Sec. 82 of the Code vested original jurisdiction in the Island Court exclusive of the District Court.
“In all criminal cases not amounting to felonies, arising under the laws of Guam and in all cases of felonies under the laws of Guam, which, if tried in the District Court, would not be fully appealable to the United States Court of Appeals for the Ninth Circuit by the defendant if convicted;”
It will be noted that at the time this legislation was enacted, Sec. 23 of the Organic Act of Guam, supra, limited appeals in felony cases from the District Court to the United States Court of Appeals for the Ninth Circuit to “ * * * all cases involving the Constitution, laws, or treaties of the United States or any authority exercised thereunder”. Clearly the Guam legislature intended that a person convicted of a local felony should have the right to appeal to a [912]*912higher court, and in the absence of the right to appeal to the United States Court of Appeals for the Ninth Circuit, the appeal would lie from the Island Court to the Appellate Division of the District Court of Guam.
Under the approval date of Oct. 31, 1951, the United States Congress amended 28 U.S.C.A. § 1291 to provide that the court of appeals shall have jurisdiction of appeals from all final decisions of the District Court of Guam, 65 Stat. 726. From that date the District Court of Guam assumed jurisdiction over felonies prosecuted by the Government of Guam. The exercise of such jurisdiction is not only sanctioned by the Code of Civil Procedure for Guam but by necessary implication, by the United States Congress through the above amendment.
The Guam legislature did not confer jurisdiction on the District Court as such court had original jurisdiction, but, in reality, transferred part of such original jurisdiction to other courts established by it.
That the United States Congress recognized the distinction between prosecution by the United States and by the Government of Guam is shown by Sec. 6 of the Organic Act of Guam, 48 U.S.C.A. § 1422 (b), which provides in part that the Governor of Guam may grant pardons and remit fines and forfeitures for offenses against the local laws, and may grant respites for all offenses against the applicable laws of the United States until the decision of the President can be ascertained.
The prosecuting official for the Governor of Guam is the Island Attorney. His duties were defined in Sec. 266 of the Code of Civil Procedure in Public Law 17, now codified as Sec. 7101, Government Code of Guam.10 In the instant case he, by a deputy, filed the information and prosecuted the offense. The United States Attorney is not charged in the Organic Act of Guam with authority to prosecute for offenses against the local laws. On the contrary his duty in connection with criminal prosecutions is set forth in 28 U.S.C.A. § 507(a) (1) to “Prosecute for all offenses against the United States”. Certainly the defendant cannot contend that, except for indictment and trial by jury, the Federal Rules of Criminal Procedure furnish him with procedural rights he did not enjoy. After the filing of the information he was immediately brought before the court, with his counsel, warned of his rights, and released on bail to appear for arraignment. His trial followed.
The defendant is found guilty as charged of two counts of the infamous crime against nature and will be sentenced accordingly. The second charge of sex perversion is dismissed.