Evening star., 1932-01-12

Declaring that the judiciary OF Ha-
waii has in the past been open to crit
icism on the ground that 1t has shown
too much leniency rather than that 1t
has been too harsh in dealing with Of
| tenders, Victor S. K Houston, Delegate
In Congress from Hawaii, today pro-
tested charge that it would be 1mpoS-
sible for Lieut. Thomas H. Massie, his
mother -in-law, Mrs. G. r. Fortescue,
and two enlisted men from the Navy to
secure fair and impartial trial in the
islands.
The quartet is accused Of murder in
connection with the death OF a natlve
who had been a defendant in charge
of assault brought by the wife Of the
naval officer. Defense attorneys are
making efforts to secure a change OF
venue which would transfer the scene
of the trial to California.
The jury which heard the assault
case in Honolulu failed to reach an
agreement after having been out more
than 81 hours, a fact of which, MI
Houston contends, critics of the Ha-
waiian system of justice are unaware.
Testimony insufficient.
According to the courts instructions
to the Jury, the testimony OF Mrs. Mas
sic who identified the four defendants,
was under the territorial law, insu1-
ficient to warrant a verdict OF guilty..
Corroborative evidence would nave peen
necessary, he pointed out. Mr.. Houston
added that 10 of the II judges slttlng
in the United States courts In HaWan
are white men, and all are appolntees
ri the President. The Massie case was
heard by Judge A. E. Steadman.
Judge Steadman's instructions 10 the
Jury as revealed by Mr.. Hoover, were
as follows: , So
PENDANTS in this case stand charged WIN
the crime Of rape.
"You are the exclusive judges OF
the facts in this case and the credlon-
ity of the witnesses, but the law you
must take from the court as given you
in these instructions to be the law, not
withstanding any opinion you might
have as to what the law Is or should pe.
"I instruct you that, while 1t Is the
law that the complaining witness must
have resisted to the utmost OF her aoll-
ity. such resistance may be overcome py
the acts and conduct of the defendants
and bv the use Of such force by the salo
defendants as to cause the complaining
witness to be physically exhausted ana
helpless. ,
I'm determining that ability you
should consider all the evidence, both
direct and circumstantial, tending TO
establish this capacity for resistance.
And if you are satisfied beyond rea-
sonable doubt that the prosecutrix re-
sisted to the utmost OF that capaclty,
that Is sufficient.
are satisfied from all the evidence be-
doubt that the com
planning witness in this case did SO re-
sist up to that point, that is all that
need be shown in this connection.
Indictment Not Evidence.
ct instruct you that the indictment In
this case of itself is a mere formal ac-
cusation or charge against the defend
ants and is not Of itself any evidence OF
the guilt of the defendants, and no
Juror shall permit himself to be tnfiu-
enced in any way against the defend
ants because or on account OF the In
dictment in this case.
"You are instructed that the burden
of proof rests upon the prosecution to
make out and prove to you, to your sat
isfaction beyond all reasonable doubt,
the crime charged in the indictment,
and, unless this has been done, you
must find the defendants not guilty.
by their pleas of not guilty the de-
PENDANTS deny every material allegation
of the indictment and they cannot be
rightfully convicted unless the prosecu-
ton, by the evidence, has overcome the
presumption of innocence in favor OF
the defendants.
"You are further instructed that, If
the testimony In this case IN its weight
and effect be such as two conclusions
can reasonably be drawn from 1t, one
favoring the innocence Of the defend
ants and the other tending to prove
their guilt, then you should acquit the
defendants.
"You are instructed that, under the
laws of the Territory of Hawaii, fe-
male who is alleged to have been raped
Is competent witness in a prosecution
therefor; but no person shall be con-
victed Of such an offense upon the mere
testimony of the female, uncorroborated
by other evidence or circumstances.
Hence in this case you are instructed
that you cannot convict the defendants
or any of them upon the sole testimony
of the complaining witness; her testi-
mony as to the alleged offense must be
corroborated by evidence other than her
own and tending to prove, beyond a
reasonable doubt, each material element
of the crime.
THUS, you cannot find that the Of
fense charged was committed upon the
complaining witness by the defendants
on her testimony alone; to warrant you
In finding that the offense charged was
committed by the defendants, the testi-
mony of the complaining witness as to
such fact must be corroborated and
supported by other and independent
testimony, believed by you to be true.
THE court instructs you that cor
roborative evidence must be evidence
which does not rest wholly upon her
credibility, but must be such evidence