
    THE GOVERNMENT OF GUAM, Appellee v. EUSEBIO G. LAGPACAN, Appellant
    Criminal No. 30-A
    District Court of Guam Appellate Division
    January 3, 1964
    
      
      Counsel for Appellee: Harold W. Burnett, Attorney General, and John P. Baker, Deputy Island Attorney
    
    
      Counsel for Appellant: E. B. Crain and Bamon V. Diaz
    Before SHRIVER, Judge of the District Court of Guam; FURBER, Chief Justice of the Trust Territory of the Pacific Islands; PEREZ, Chief Judge of the Island Court of Guam
   PER CURIAM

OPINION

Oral argument has been waived. The government of Guam has filed no brief. This could be construed as a confession of error. The appellant was charged in the Island Court with the offense of battery in violation of § 242 of the Penal Code of Guam. He was found not guilty of battery but guilty of the offense of disturbing the peace, an offense with which he was not charged.

Rule 5(a) of the criminal rules of the Island Court provides that the information shall contain a plain, concise and definite written statement of the essential facts constituting the offense charged. Allegations made in one count may be incorporated by reference in another count. Rule 6(a) provides that two or more offenses may be charged in the same information in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions committed together or constituting parts of a common scheme or plan. The appellant was charged with battery and acquitted. If the Government wished to charge a breach of the peace it could have done so in a separate count of the same information. It did not do so.

Reversed and remanded for dismissal.  