
    UNITED STATES OF AMERICA v. GEORGE A. BOWER.
    June 24, 1914.
    
      Criminal Law—Practice; application of Territorial statutes to United States District Court: A statute in force , in the Hawaiian Islands at the time of their annexation to the United States and continued in torce iii the'Territorial courts, providing that the successive disagreement of two 'juries" m\'a criminal case shall; ppéfate. as an adduitial/ does 'not, govern the United states District Court for the .Territory, of. Hawaii.' *<j¿í •'« -Pi. i ,i í« 11'» 'Jiv, 1 !íi? Ml»' e.Vinjí .LlíJ.f. 1 •A '* •!< i • f Í - >. « ¡ i 1 r •> < i < > I • H! . l í i ' il > 6 * a f í rs j 1 \ 1 S « Í . Í ‘íi i ‘" I Í '< il J ’ I , "i; 1 . /1 , h.jI. .< i . ■-!„ a . j i ■», k <. ¡i», -> s m ^ s1 it ■ • ,. 5 ( . i ( i i ’ v:i O'111.1 i ■; ' - í t < ' • «n: r.At -il JIM ' 1J« V,f' mI .4 !, I <!» r', il V M I » 1 l , I . J .'..'Wi !, ,i! 1 Í II . V .
    
      Criminal, Law: ,Motion.,for, dischargeiof,defendant.. • Kill1 j "i Í j 1 4; Í! 1‘ . M i « p >, i <J i Í j • |( ! I 11 it n ¿’5.' I» *íí Í » ' Il,; J 5 ■ -1
    
      ^JeffcMcQamvy, Distract Attorney, .and#. *W¡\ Thompr son; Assfstant'Uv’S: Attoriieyj !fof'-the;iHnit’ed 'States;!i“.: 1
    ■¡ "E-:A{;Dó'úlhiit &íift 'L.'M:Straus-('J'.'L. 'Co'ke with them) 164 .defendant. ^ IL* m i . r « « • • i. i - ...«; , .*, .* , - .!■!>' < í i * i . . 1 , •. . . ., 1 '
   Clemons, J.

,^,,.,.(The.,;|iny h^ñl&vdi^^grped, inWyo,. successive i trials of-the .défendanUonl'a©!.indictment .-for, adultery! Ms'counsel move Aor hís disehargemndhe-'ground1 of 'thW !ahtílic‘ábilitW:óf5’sebtióh,,2822 'of’.'the'iEleviShd,:Lawé of Hawhii of 1905, providing m part’ as follows: ¡' 1 , .

,; ,“(the.. suc,ces.siye '.disagreement ‘ ,o£. hwo:?-jxir,ies .impaneled to tty the. cause, shall operate; as an. acquittal of the accused, and the court shall order. Ms. discharge .-from; ¿custody.”. •

..,, She ¡ dofepdaint. nontonds' that; this( rule.; of territorial, law, in forcean Hay?aii¡.since 1876, (S. L. 1876, c. 40, s. 3),, is ixj8.de .applicable; tedh.e,.federal.coprt by^ section §3 of dhe Organic Act,.,(31 Stat. c. 339, p. 157), ¿wMch:jpro.vides .that “the laws of Hawaii relative to the judicial department, including civil and criminal .procedure,: except as. amended by this act, are continued in force.”

This contention overlooks the obvious fact that section 83 contemplates the “judicial department” of the Terri-' tory and not that of the United States,—not only as indicated-cby the'"words ’“.judicial department” üh'their immediate context,1'bat '¡byvthe-'-fabt that-chapter-MV-of'-the Organic lAnt, "in1 which ¡this; ¡section odours; relaté® <tó’ “the judiciary of' the-Territory”:-i (see ¡chapter titl.ej) s and -“the judicial power of the Territory”'(see.5section’ 8í)y-and"by the* fact-also--that section . 86, (pertaining; ;tc> "the-¡Federal court;¡is placeddn-a-separate,'.later;chapter!entitled “‘United States- officers”; ‘thus - distinguishing- them' from1 ¡Territorial officers provided for elsewhere:'!.. t,-¡ >(¡ ' • u: ■> ■ »•

‘Moreover, the - bontention ib'-'contrary"to- thecwell-settled intent of the Organic Act;t“The'Territory of.'Hawaii -is¡in every - particular, - except-sovereignty, in!the ‘position -hf a State1 éerteáxíly in'1 that* 'position1' so 'fait ‘ as11 its'' ‘'courtsáre c'ónéehiedL"'\" United States v. Morimoto, 2 U. S. Dist. Ct. Haw. 396, 399; Wilder's S. S. Co. v. Hind, 108 Fed. 113, 116; Ex. p. Wilder's S. S. Co., 183 U. S. 545, 551; Equitable L. A. Co. v. Brown, 187 U. S. 308, 309; Territory v. Carter, 19 Haw. 198, 200, 201; Territory v. Martin, Id., 201, 202-205, 213-214; Territory v. Morita Keizo, 17 Haw. 295, 297-299; Bierce v. Hutchins, 18 Haw. 511, 518. The practice of the United States District. Opurfngust, then, be governed, in - the- same way as practice- in the, Federal courts in'thei-Statesr • See-Organic Act,-sec.•,86.i'! 1' ■ 0-.1 h>- ■

■' • This- brings us tó; another Conténtibii;' 'léss' stfbhgly ’relied on by counsel but -more difficult- tcj riispose pi, !'that‘section 2822 of the Revised. ¡Laws is éhecriye'here-, b.e.ca¡use-in ipaf-ters of, practice not .otherwise-.provided .-for;,, this .court must follow the-practice, existing in Hawaii ;at the’ time- of1 annexation,. < In ¡support of'this1 contention; -reliance is *hád; tipóh thetüling ’ih United States v. Moore, 3 U. S. Dist. Ct. Haw. 66, and the cases therein cited.

In the Moore case and the mroe recent case of United States v. Morimoto, supra, as also in the cases off United States v. Reid, 12 How. 361; Logan v. United States, 144 U. S. 263, and Withaup v. United States, 127 Fed. 530, which the Moore and Morimoto cases follow, it was held that “the rules of evidence governing Federal courts in criminal trials are those which were in force in the State [or Territory] at the time such courts were established therein, subject to such changes as have been made by Congress.” 127 Fed. 530, par. 2.

The reasoning of Chief Justice Taney in the leading case of Reid, supra, may seem to justify the following not only of such local rules of evidence, but of such local rules of practice in general, as were in force at the time of the establishment of the Federal court in the particular district. He says, at pages 365-366:

“Neither of these acts [the Judiciary Act -of 1789, 1 Stat. 73, 88, and the Crimes Act of 1790 , 1 Stat. 112, 118] make any express provision concerning the mode of conducting the trials after the jury are sworn. They do not prescribe any rule by which it is to be conducted, nor the testimony by which the guilt or innocence of the party is to be determined. Yet, as the courts of the United States were then organized, and clothed with jurisdiction in criminal cases, it is obvious that some certain and established rule upon this subject was necessary to' enable the courts to administer the criminal jurisprudence of the United States. And it is equally obvious that it must have been the intention of Congress to refer them to some known and established rule, which was supposed to be so familiar and well understood in the trial by jury that legislation upon the subject would be deemed superfluous. This is necessarily to be implied from what these acts of Congress omit, as well as from what they contain.
“But this could not be the common law as it existed at the time of the emigration of the colonists, for the Constitution had carefully abrogated one of its most important provisions in relation to testimony which the accused might offer. It could not be the rule which at that time prevailed in England, for England was then a foreign country, and her laws foreign laws. And the only known rule upon the subject which' can be supposed to have been in the minds of the men who framed these acts of Congress, was that which-was then in force in the respective states, and which they were accustomed to see in daily and familiar practice in the state courts. And this view of the subject is confirmed by the provisions in the act of 1789, which refers its courts and officers to the laws of the respective states for the qualifications of jurors and the mode of selecting them. And as the courts of the United States were in these respects to be governed by the laws of the several states, it would seem necessarily to follow that the same principles were to prevail throughout the trial: and that they were to be governed in like manner, in the ulterior proceedings after the jury was sworn, where there was no law of Congress to the contrary.
“The courts of the United States have uniformly acted upon this construction of these acts of Congress, and it has thus been sanctioned by a practice of sixty years. They refer undoubtedly to English works and English decisions. For the law of evidence in this country, like our other laws, being founded'Upon the ancient common law of England, the decisions of its courts show what is our own law upon the subject where it has not been changed by statute or usage. But the rules of evidence in criminal cases, are the rules which were in force in the respective states when the Judiciary Act of 1789 was passed. Congress may certainly change it whenever they think proper,' within the limits prescribed by the Constitution. But no law of a state made since 1789, can affect the mode of proceeding or the rules of evidence in criminal cases.”

Circuit Judge Swayne, in United States v. Ambrose, 3 Fed. 283, 285, summarizes the ruling in the Reid case as follows:

“The case of the United States v. Reid, 12 How. 361, lays down the proposition, and maintains it unanswerably, that, as regards all criminal proceedings and jurisprudence in the courts of the United States, the courts of the United States are in no wise bound by state laws or state practice in anything.”

But the rule applied in the Reid case, and in the cited cases which follow it, was adopted as a rule of necessity. The Supreme Court there decided that, as the Judiciary Act referred the selection and qualification of jurors in United States courts to the practice then existing in the several States, .respectiyé-ly/ it.,would -seem ¡necessarily-: :tp»follqiy; that 411© courtsj'i'wgre'tO 'be'gQverheddri.like anaiineriiiTith© ulferiór pfpc'éédiiigS. after1 tll'e' iiir^'’wals’;sWorn) wh'ér'e there was' ño taw[ntíf ' '(JóngressyíqvÍKéi¡cqñircirij”"'yÓefíig 'notéd tí$t‘ 'tk,p opiitpj^pljatiop^ísf'tlj.e q.uestiopí bpfqrp;t-bp cpRi;ctJj.;reÍl%té<d,-pliilyís1:pil„t[he, competency, of witnesses, rules of evidence), United States v. Reid, supra, 361, 365,-in other words, that as the Judiciary Act récojtñizéd'"tHe5State''pf&feíiée? '/at)tlVe;tibie *óf ÍH^ QÓúrus1 creation, as .governing thé) seiecfipi/ /and. quá;lííipation,".óf tfhe cou^tr iipt 'í';ulep,,,an4TI^?í'^fií8PTt;r??,ÍRg ítft? f orr¡ Which i such ,j proís -wérensplected ánd( ^qualified) ¡would recognize * the teanie ? convenient; authority ab ^perhaps : within the ‘inteilt; ‘of* the' á’ct: '' This cbh'clusibh,’ ’kíthq'ú'gh1 hot " very1, clearly watnm the act. is yet m harmony jvith its spirit,, especially. ,wi]fch ;,thq.saifeguai’dipgsw9i;dsn ^hqrp thqi^is ,no law ofriCougrps^ith.the ;cputr.ai|y”/; iThisb? -abouti^s faifas; thd Supreme «Court » c©uld< gohinii that'ndirection.«'b.;^nd-“th© R'eitt- báse MS* hot;1 iñ1 'thé opihióñ; of; thi^ 'cbüít;1 fi • ptecedefít-fdrí'fycógjQÍzfe,gi ’aütfióVitjb iil/híx* Iía!'ix'kiÍáh,/staítiíteífe'?ci^tMg •■nth' ‘iría '»ífl an -uñí .norifnJXvyo J 'V* va ¡i'íiíj':1';-'.! at, the time oí annexation., by,.which, the.írpedom.pt, pyose- ■•»!, :,a »"n«í»-' ¡na ni <u -f,>o;¡í yU í ¡TVnfs j » tj-s rqi ¿Kfi.n. ¡"üü cutions under a Federal* statuJte,4sl¡to;-)be.pui;tailpdj., Arq-.nof, the &Í8oWJ#4s- w,4 i*8 Ppwpi’s,igiyqn, ne,ce^arilyj^though .imphejdly,. contrary, to .the local statutory rule? Do they not exclude it? Or, in pth.er, woi;ds, pSj iio.t, the/peal statute iteplf. inconsistent with, the ne,cpssi¡ty¿- an.pmprgenpy[.„.hip suphielppieutfexistsdUs the qaspi at • bar J The«situation»is provided^ or» by • the* natural > coiir se of'things:’there is nó-bbstaícléltblfUíthérTfóceédmgsV; -

It is a startling proposition that a Federal court1 ’should' in. the-absence! of .legislation,.bb Gonipellpd'. to'jfollow -every rulé of ¡practice pin force linthédocak coürts '-'átlthbítime' the* district:is¡bróugh;tvunder; Federal'jurisdiction/ even,qit -may be-,:-a ¡century or¡ piore before,'—as ihithercase-bf thé thirteen original colonies,-or of-¡the; «first -admitted! ‘States^unless-it-^33 lí -yi% Vo •43 i» *53 •*so . >■. P" PS' ~CG‘ -<D" ¿O -0) ^ d = P ct\ CD-; w-,: c+% Wl ¥■' P:" o Cu .etc: 5T erq” o&emdash; . PT- & s ce. 2ua£ sü“ set: - a£ C&wkey; “ ■ CTQr 2s oé b-' 0" o? 5; Br^--IrgL^r st p¡" ce P' Q. C Q ,0* 0^-35; Kr pr In=£ r*|í S=,fe 00 oc Jgc ta- 3*: $•■ £ 0>3 13- o>r 1 ex , CDr^í* 0“ ct OK t Sí O -- PA-CO-* CDJ. XA O i-h-ctT 'X" r^t - o>,.- .. 5-: - CP.-. cT CP a -bjO a) -p> ■ -P -O o X* ■ o ■fp -O • rj <•0 c~ th'~~ Rdvis~1 La*~ ~nd ~äedk~ë ai~ ~c~I~I1tt~11 ii~ ~e~i ~âM ih wffi~h t1~fè'r'&is ~"a fa~i1iii~d ~ ~ ii~ri~i tioi~ ói'~ irdicfnier~ a~i~ ~ti~ie ~eriTh v~h~hth ~thè i~j~i~ s~ritëcl àgaiii~t ~: ~i~iiiE~1e~ ~t1~d ~T~1~Ii~ b~ i~Ti~~V

M~ ~ io~'~i?" It rnâ~y be we11~to `iemove some m~sui~ders~iidthg of ~the 1è~hi~h ~iliigI~t ~3j3e~ fr~ the fdiiF th~ri~i~es ~diit to be noted. ~In the case of United States v. Maxwell, 26 Fed. Cas. 1221, 1222, No. 15,750, Judge Dillon states: "Cdi~r~~ h~W i ei~i~t~ed ~ ~dbd~ gf'~ilnI~i~1 dfi~~ ~ `th~St~è& h~v~ i~ô ~vèi~ t~e~H~b~ ~i~hbi~ ~ pi~cedib~ i~i1e~ ~Ôf ~Id~i~d I~I ~ ~d~4ii~ offeñse~.' Tn~ g ~f~I ~th~ F~1deM1~ c6tec~ ~riied i~Y tWe~ r~j~c b~y ~the dôn~i~ô~ ~à~'~i~ti1 ~e~i~Ii~ fi~a.tiôh~ ~3ointed t9iYI~ ~I5~ ~th'e Si~iiëme b~uri. United States v. Reid, 12 How. 361." ~Bi~ J~dg~e ~iI1~n~s* ~ ~k the ~Reid ~da~e~ cJ~a~1~,r hihi~1id~~ klifi ith~'oft~ ~ "~he' cbthmô~n ~1~"~'t~ ~`á.n H~h& contrary". What has just been said of the Maxwell case applies to the case of United States v. Shepard, 27 Fed. Cas. 1056, No. 16,273, q. v. at 1058.

In United States v. Coppersmith, 4 Fed. 198, 204-205, the broad rule just quoted from the Maxwell case is qualified by referring to the "laws and usages of the State when the judicial system was organized", "in all matters respecting the accusation and trial of offenders, not otherwise provided for". This concluding proviso would, if taken in a broad sense, distinguish the Coppersmith case, and indicate an intent to limit the application of the rule to contingencies of actual necessity.

Foster states that, as a general rule, Federal courts in the several States do not adopt the local procedure, but “follow the old practice at common law, except so far as the same have been changed by a Federal statute.” 2 Foster, Federal Practice, 5th ed., 1615, sec. 483. This statement, also, may be misleading, unqualified as it stands; for the learned author, though citing the Reid case, notes no limitation with respect to local practice as existing at the time of the Federal court’s organization, or otherwise, and fails to cite the Logan case, or to cite anywhere in his book Judge Van Devanter’s notable opinion in the Withaup case.

Counsel’s main reliance upon the decision in the Moore case, supra, lies, however, in the idea, somewhat difficult to comprehend, that inasmuch as the rule of evidence there enforced was based upon the removal of a disability existing at common law, viz., the disqualification of certain persons as witnesses, so here, as the local rule, Revised Laws of Hawaii, section 2823, removes a disability, as it were, or rather creates a privilege or right, this court must enforce it just as it enforced the right or privilege in the Moore case. And in this connection it is urged that section 2822 provides for matter of substance and not mere procedure. It is enough to say that this argument does not truly reflect the basis of the Moore decision or of the leading cases of Reid and Withaup upon which it is founded.

Another decision relied on by counsel is that of Britton v. Thornton, 112 U. S. 526, 534-535, holding that a “statute giving a conclusive effect to judgments in ejectment, which they did not have at common law, establishes a rule of-property concerning the title to land within the State of-Pennsylvania, and binds the courts of the United States as well as the courts of the State.” There the statute made conclusive two successive verdicts, or two out of three verdicts, for the same party. The opinion in the leading case of Miles v. Caldwell, 2 Wall. 35, cited in the Britton case, held a local statutory provision, making “judgment in ejectment a bar to certain future suits, to be a rule of property,” and Mr. Justice Miller said: “It is a matter which involves something more than a mere rule of practice. It is a question whether a matter, which is conclusive of the title to land in the State courts, shall have the same effect in the Federal courts.” Miles v. Caldwell, supra.

Aside from the rule-of-property basis for this decision, it would have been justified by the fact that the case was civil, and governed by Revised Statutes, section 914, adopting local rules of practice, if practice were involved, or at all events by Revised Statutes, section 721, adopting local laws as rules of decision “in trials at common law . . . in cases where they apply”, if substantive law were involved. See Burgess v. Seligman, 107 U. S. 20, 33.

Something may possibly be said, — though I am not yet persuaded of its soundness, — in justification of an argument that Revised Laws of Hawaii, section 2822, is not a rule of mere procedure at all, and, therefore, not within the rule in the Reid, Withaup, and Moore cases; that procedure provides mere means, manner, or method of reaching a judicial determination, while a statutory declaration, as here, of the effect of certain facts, partakes, rather, of the nature of substantive law. Suggestive language of Mr. Justice Holmes, in a recent decision, lends support to such an argument, to quote but a single sentence from an illumi-native context: “The substantive portion of the section [of the statute of limitations as to crimes] is that no person shall be tried for any offense not capital except within a certain time.” Gompers v. United States, decision of the United States Supreme Court, May 11, 1914 [233 U. S. 604, 611]. The logic of this view would seem to be, that the statute here in question, itself a kind, of statute, of Hmi'tatiói’is/'is one of substantivé, rather" thaiT of ‘adjective1 law.' ; T¿é distinfitioil-is'close;' recalling other language- of’ the Sable'jurist:’ ‘'Whéhever We trace'a leading doctrine' of substantivé’’law far' enóugh báckj’we ’-afé very-'li’kely !to; find' 'sdihé' ‘forgotten"1 cífcümstáhtíé -tif' procedure 'at'’"its1 sdtirbe.”'' 'Hohlies, 0dmmbii "Law;i253.’ " Vi r:

' The parol evidence rule, also; may be cited as tin- example of; the supposed distiiictidn. - Mr.'Wigmoré says, “the rule is*ill'ho' sense1 'a rUIé' of évideiicé, 'but a rülé óf ■substantive’ law. . . -■-'.""What''the "rule-does is td?■ decláre'that cer-tkiiifiands'df' fací are'-iegálly ‘iiíéfféctiVé* in'the’Substantive law; ’and this-’'d’f -‘course’'(liké’ silly*'other’ruling"' oí Sübstán-tiVé’law) tésúlts'ih: forbidding’ thé 'fact tobé prbVechat all;”' 4 Wigmore, Evidence, 3369, sec. 2400. And see Id. sec. 2401; "Hálcritaiani,' ©ontrkefe, 2ild éd.; see.-1 61'. W ' ..*

But it may‘bé's’aíd, granted that’thé’pároTevídénce rülé is’á rülé pf substáiitiVéTáw ráth#!'than-o'f!évidénóe, névem theless it :ís applied 'prh;ctic‘ál'ly'"ás,,a fülé;'óf ‘evidence.1 Sé'é 1 ''Chámberlayné;"!Evidence, séc.-’! 1-710:' Ttí 1 thiS, ’ évéü if truéy-it’lieed only be" replied;'as already "indicated; that the urged rule,- of applying local procedú'ré, is hot regarded as binding’ hpbfi! thé ’ 'Federal! 1 counts ‘: in1!! mátt'érs * Which are1 clearly' hot mére-'matt'é'fs of "way8;ah(3'means"'íilit ’áre rhthter' matters" "óf 'Sübstance:1 ‘ the1 ■ Substantive phase - ísf 'd'omiiláíit.' See1 the"'GÓfiiperS'Cáse, ubi sup. -'And1,‘of co'ttrse/ihFederál criminal law -nothing is' substantive1 except as1 Congress1 has de’elared it. 1 ?'"'i ri

■ "‘But 'in’ denying'the- motion,"without further'disCUssiOn,' T rely" -oh the' ’already' 'sufficiently’ justifiéd*íegard’' Of * thé ’rulé iii the1Wei# basétáá,'1áhüré;6f’;ü’éb,éssity, not to’’bé'applied in 'this1 "casé "where'its’ application1' 'is'dlOt only5uncalled' for; but"Where its application would be" inconsistent" with1 the inherent;1 natural, ‘powetsv‘6f the éóurt. The provision of section :SÍ822 híáy bé'wise; "but it'-dbeahót ^ovefh'th’ís'cbürt.

--iíét'tliemotibn be denied.'*"  