Honolulu star-bulletin. [volume] (Honolulu [Oahu, Hawaii]) 1912-2010, 1914-06-24
MEASUREMENTS
IN BOWER CASE
DON'T DISCHARGE

Judge Clemens Denies Motion
OF Defendants Attorneys; I'm
| portant Question Ruled On
George A.. BERT Boxer, the chanf-
feur charged with q statutory crime
involving the fan of a young girl. h
not TO 60 free Of responsibility TO the
law because In two successive federal
court trials the juries have disagreed.
Judge Charles r. Clemens OF the
United States district court today de-
MED the motion Of Bowers counsel z.
A. Doufhitt and L M. Straus. who
moved the discharge OF the defendant
In view OF the jury iisagreements.
! The Bower trials received wide az
tention because Of the hideous charges
made AGAINST the chauffeur In connec-
tion with the cases and also because
United States District Attorney jeff
Mccain. with his assistant, ]. 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
Criminal Law Practice Applica-
ton Of Territorial Statutes to United
States District Court: A statute In
force in the Hawaiian lSiands At the
time Of their annexation to the United
States and continued in force In the
territoriai courts. providing that two
successive trials In sa criminal case
shall operate as an acuuittal. does not
govern the United States district court
for the territory of Hawaii.
The Jury having disagreed 10, 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
IN part as follows:
The successive disagreement OF.
two turtles impaneled to try the cause,
shall operate as an acQuittal Of the ac-.
cused. and the court shall order his
discharge from CUSTODY.
s The defendant contends that this
rule OF territorial law. in force In Ha.
wall since 1876 fS.s l.. 1916. G. 90. s..
81. Is made applicable to the federal
court BY section So OF the Organic Act
ISL Stat. & 339 d. 157l, which pro-
viles that the laws Of Hawaii relative
10 the judicial department. including
civil and criminal procedure. except
as amended By this act, are continued
in force.
This eentehtion overioOks the OBJ
yious fact that section So contemplates
the judicial department of the terri
tory and not that Of the United States
mot only as indicated by the words
judicial department. in their imme-
date context. but BY the fact that
chapter w of the Organic Act. In
which this section occurs. relates to
..the judiciary Of the territory fsee
CHAPTER title1 and athe judicial power
Of the territory tsee section 80, and
BY the fact also that section So, per-
tanning to the federal court. Is placed
IN separate, later chapter entitled
United States officers. thus distin-
gushing them from territorial officers
provided for elsewhere.
Moreover, the contention is con-
trary to the weIlsettIed intent Of the
OrEanic Act The territory Of Fla
wall is In every particular. except
sovereignty, in the position of q state;
certainly in that position 80 far as its
courts are concerned. The ,
practice of the United States district
court must, then. be governed In the
same way as practice IN the federal
courts in the states.
This brings us to another conten-
ton, less strongly relied on by coun-
sci but more difficult to dispose OF
that section 1892 of the Revised Laws
Is effective here because In matters OF I
Practice not otherwise provided for,
this court must follow the practice
existing In Hawaii at the time OF an
nexation. In support Of this conten-
ton. reliance Is had upon the ruling
In United States v. Moore, 8 u. s. /
Dist. CT Haw. SIS. and the cases there
n cited.
& In the Moore case and more recent |
ease of United States v. Morimoto.
supra, ais also in the cases OF United
States v. Reid, ~ HaR 361 Logan Y.
United States. IA u. s. 263, and With
aup n. United States. 1T Fed. $50, |
which the Moore and Morimoto cases
follow. it was held that the rules Of
evidence governing federal courts in
trials are those which were
IN. force In the state for teFrit0ryl at !
the time such courts we're established |
therein. subject to such changes as |
have been made by Congress. 2 f27
Fed $50. par. 2. -
The reasoning of Chief Justice
fancy in the leading case of Reid, sus !
pfa, may seem to justify the following |
not only of such local rules of eyi.
ience, but OF such local rules of prae.
ice in general as were in force at.
he time of the establishment Of thet
federal court In the particular dis-i
.rict ~ i.
But the rule applied in the Reid /
ease, and in the cited cases which fol-
low II. was adopted as "a rule of ne
eessity. The supreme court there de-