The Washington times. [volume] (Washington [D.C.]) 1902-1939, 1932-04-23
HAWAII TELLS
KELLEY NOT To
RUSH TRIAL
Gov. Judd Urges Prosecutor
to Bring Out AIieniSts'
Testimony Carefully
Continued from Page One)

Lieutenant MasSie'S conduct at
the home of Mrs. Fortescue,
where Kahahawai was shot, was
that of a normal person and
that he was not insane legally or
medically.
DR.. Robert B. Faus, county
physician, was also ready to take
the stand for Kelley to assert
from his observations that Lieu
tenant Masise was not deranged
at any time.
Darrow will rely for rebuttal, if
he deems it necessary, on DR..
OrbiSon. DR.. Williams sailed for
the mainland yesterday.
To Jury Wednesday
Kelley and his associate, Barry
Ulrich, after a long conference
with DrS. Cation and Bowers,
now believe that they will not be
able to finish their case before
Monday noon.
All of Tuesday will be required
for argument as to the inStruc-
tions to be given the jury, Kelley
said.
Many fine points of the Inv
will be involved in these instruc-
tions, and the jury will be
excused.
Kelley said:
81 think the case will go to
the jury on Wednesday, after
all day arguments
Darrow retorted:
"The sooner it goes to the
jury, the better 1 like it."
The noted defense lawyer went
on to say that in his opinion,
Kelley has shown the defense
the greatest fairness during his
able prosecution"
Fight Over Instructions
The fight over the instructions
to the jury is bound to be bitter.
The defense wants the jury to
be advised that if it finds Lieu
tenant Massie not guilty by rea-
son of insanity, then the CO.
defendants must be acquitted as
no crime was committed.
The prosecution was anxious 10
oppose this, but Kelley admitted
that it had been unable to find
any case with similar issue IN
the United States which he could
cite as authority.
Kelley will seek clear-cut con-
viction. Shrewdly, however. ne
will request the jury to be In
structed that if it decides Lieu
tenant Massie was not normal at
the time of carrying out the con.
spiracy involving the felonies OF
kidnapping and assault with a
deadly weapon, this may be con-
sidered in mitigation in fixing the
degree of the guilt but not by
way of justification.
This would permit a man
slaughter verdict, carrying a pen
atty of not less than 10 years at
hard labor.
The four defendants were in
dicted for second degree murder,
the penalty for which is a COM
pulsory life term. In either case
the trial judge has the right to
fix the minimum sentence that
must be served before a parole
can be considered.
Under Hawaiian law, Judge
Charles S. Davis will not be- per-
mitted to comment on the evil
dence, a restriction that was
severely criticized after the trial
of Kahawai and the four other
half-castes accused of attacking
Mrs. Massie.
This case ended with a hung
jury. The retrial will probably
be dropped if the honor STAY
ing" defendants are acquitted, it
was learned from the prosecutors
office. Mrs. Massie, who barred
her story of horror and shame at
both the attack trial and the
present trial, is unwilling to sub
nit to further court ordeal.
However, if the present case
ends with a hung jury, the attack
case against the remaining four
half-castes will be retired next, a
spokesman for Kelley indicated.
Doctors Uphold Kelley
Although the incident itself was
buried deep in the court records,
discussion continued in Honolulu
private circles over Mrs. Massie's
action on the witness stand in
tearing up document handed
her by Kelley. She was roundly
applauded by the courtroom spec.
tatorS at the time.
Mrs. MaSsie insisted that the
communication was confidential
matter between doctor and
patient and could not be brought
into court. Kelley, however, said
it was privileged evidence, and in
this he was upheld by the Ha.
waiian Medical Association, which
said that the question of ethical
conduct was not involved in the
pSychopathic test which the docu.
ment allegedly covered.
The document was not intro
duced in evidence, however, and
its contents remained unprivileged
from legal standpoint.