Honolulu star-bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1912-2010, 1914-06-24
DIsAGREENEyIs
IN BOWER CASE
DON'T DISCHARGE l |:
Judge Clemons Denies Motion
of Defendants Attorneys; In
porta1t Question Ruled On

vi U6i6iiudlt > HtlUIH6yS, Hi.
| portant Question Ruled On
George A. BERT Bower. the chauf-
feur charged with a statutory crime
involving the fail Of young girl, is
not to go free of responsibility to the
law because in two successive federal
court trials the juries have disagreed.
Judge Charles F. Clemons of the
United States district court today de-
MED the motion Of Bowers counsel. E.
A. Douthitt and l.. NJ Straus, who
moved the discharge of the defendant
in view of the jury disagreements.
The Bower trials received wide at
tenticn because Of the hideous charges
made against the chauffeur in connec-
ton with the cases and also because
United States District Attorney jeff
MeCarn. with his assistant, j. w.
Thompson, prosecuted the charges and
failed to get conviction. = ...
| The decision Of Judge. Clemens.
which involves important points far
wider than the Bower case, says in
part; Il: s,. et ST.. -
Criminal Law Praetiee-Applica-
ton of Territorial Statutes to United
States District Court. A statute in
force in the Hawaiian IGiands. at the
time of their annexation to the'6 Emitted
States and continued in force. In the
territorial courts, providing that two
successive trials in criminal case
shall operate as an acGuittal. does not
govern the United States district court
for the territory of Hawaii. - h
Tie Jury, having disagreed in two
successive trials OF the defendant on
an indictment for adultery. his counsel
moved for his discharge on the ground
Of the applicability of section 1922 Of
the Revised Laws Of Hawaii. providing
I'm mart as follows: So
The successive disagreement of
two inries impaneled to try the cause,
shall operate as an acqaIttai OF the &C.
cused. and the court shall order his
discharge from custody" & Es..lt..sit55
The defendant contends that this
rule OF territoriaI law. In force in Ha.
wall since 1876 Is. Z. 1915. q. 10, q,
81. is made applicable to the federal
court by section 34of the Organic Act
t3l Stat. e. 339, p 1917, which pro-.
vides that athe laws of Hawaii relative
to the judicial deDartment, including
civil and criminal procedure, except
as amended by this act. are continued
In force. 81. $3.50 +, 49, !
This contention overlooks the OBJ
yious fact that section 81 contemplates
the judicial department" of the terri
tory and not that of the United States
mot only as Indicated by tho words
.iudiciaf denartment' in their irnmee
diate context. but by the fact that
chapter Nv of then Organic Act In
which this section occurs, relates TO
"ths Judiciary sof the territory" (see
chapter titlel and "the judicial mower
OF the territory (see section SD, and
by the fact also that section So. per
tanning to the federal court, Is placed
in a separate, later chapter entitled.
United States officers" thus distin-
gushing them from territorial officers
provided for ELSEWHERE. ]fFs.s IS }, s. 81
Moreover, the contention is con
trary. to the weIl.settIed intent of the
Organic Act The territory of Ha-
wall is in every particular. except
sovereignty, in the position of state;
certainly in that position so far as its
courts are concerned. =, ~. 49, The
practice of the United States district
court must, then. be governed I'm the,
same way as practice in the federal
courts in the states" ~ a+.. a.. 4
This brings US to another conten.
ton, less strongly relied on by coun-
sci but more difficult to dispose of
that section 1922 of the Revised Laws
is effective here because in matters of
practice not otherwise provided for,
this court must follow the practice /
existing III Hawaii at the time of an
nexatichss III support4of this couten-
tien. reliance 81. had upon the ruling.
in United States ". Moore, 3 u. s.:
Dist Ct. HaW. &c, and the cases there
I'M cited. g.. ~ =, Z e., .~a, r.. 4
In, the Moore case and more recent,
case Of United States " Morimoto.
supra, as also in the cases of United \
States ". Reid, - Haw. 361; Logan v.
United States, IA u. S. e263, and With
auD VI. United States, 1T Fed.g $40,
which the Moore. and Morimoto cases
follow, twas held. that THE rules Of
evidence governing federal reourtssin
criminal trials are those which were
u force in the State Cor territory at
the time such courts were established
therein. subject to such changes as
have been made by. Congress-" 127
Fed $50, par, 2. -: - -. - ~ "a
The reasoning of Chief Justice
fancy in the leading case of Reid, SUI
pra, may seem to justify the following
not only of such local rules of eyi.
dence, but sof such local rules of prac.
tice in, general, as were in force at
the time of the establishment OF the
federal court In the particular dis. !
trfet.
But the rule applied In the Reid
case, and in the cited cases which fol-
low il, was adopted as rule Of mel