Hatchett

Hatchett was found guilty of three •offenses, one of which was the crime of involuntary manslaughter as defined in § 192 of the Penal Code of Guam. On conviction of that offense he was sentenced to imprisonment for a period of one year and one day. Two lesser terms to run concurrently were imposed on account of his conviction of the other two offenses for which he was tried at the same time. Upon this appeal from the judgment of conviction appellant contends that the judgment should be reversed for the reason that he was not afforded a trial by jury in the court below.

The record before us shows that this point was raised by the appellant for the first time in this court. The record in the District Court of Guam fails to disclose any request or demand by the defendant for trial by jury, nor does it disclose any objection to proceeding to trial in the absence of a jury. The record shows that at the appointed time the defendant appeared with his counsel, the case against him was called for trial, his counsel announced that defendant was ready, an opening statement was made on behalf of the prosecution, and witnesses were called and examined, all without any reference to the…

(concurring and dissenting).

I concur in the court’s sua sponte holding that the population of Guam is able to supply grand jurors to return an indictment and in the dismissal of the information for want of jurisdiction of the case in the absence of such grand jurors so acting. I also concur in the decision that the Guam district court should exercise its jurisdiction in the same way for violations of felonies created by the Guam legislature as for violations of federal felonies.

I dissent (A) from the court’s illegal act, in violation of the constitutional limitation of its authority, in giving an advisory opinion that the Guam district court has the jurisdiction to convict an accused man, indicted by Guam grand jurors, without a trial by Guam petit jurors, in a case in which this court holds the district court is without jurisdiction; though, strangely, it does not make the necessary order that the nfor-mation be dismissed as to the felony charge as it does in the case of Pugh v. United States; and

(B) Since it is the law of this case that the court has such power, I dissent from the court’s advisory opinion and on grounding its decision both as to the right to indictment and…

212 F.2d 767 HATCHETT v. GOVERNMENT OF GUAM. No. 13803. United States Court of Appeals, Ninth Circuit. March 30, 1954. Rehearing Denied April 29, 1954. E. R. Crain, Finton J. Phelan, Agana, Guam, Thomas Jenkins, San Francisco, Cal., for appellant. Howard D. Porter, Atty. Gen., Robert D. Scott, Asst. Atty. Gen., Leon D. Flores, Island Atty., Agana, Guam, John A. Bohn, San Francisco, Cal., for appellee. Before DENMAN, HEALY and POPE, Circuit Judges. POPE, Circuit Judge. 1 Hatchett was found guilty of three offenses, one of which was the crime of involuntary manslaughter as defined in § 192 of the Penal Code of Guam. On conviction of that offense he was sentenced to imprisonment for a period of one year and one day. Two lesser terms to run concurrently were imposed on account of his conviction of the other two offenses for which he was tried at the same time. Upon this appeal from the judgment of conviction appellant contends that the judgment should be reversed for the reason that he was not afforded a trial by jury in the court below. 2 The record before us shows that this point was raised by the appellant for the first time in this court. The record in the District Court of…