Young
Young v. Territory of Hawaii
Opinion
Lead Opinion
Healy, J.
Appellant was convicted of the crime of abortion, defined by a statute of the Territory of Llawaii, and was given a prison sentence. The appeal is from a judgment of the territorial supreme court affirming the conviction. Territory v. Young, 37 Haw. 150 . We are obliged at the outset to determine whether we have jurisdiction in the premises.
Section 128(a) of the Judicial Code, 28 U. S.C.A. § 225(a), as amended.; provides: “The circuit courts of appeal shall have appellate jurisdiction to review by appeal final decisions— * * * Fourth. In the Supreme Courts of the Territory of Hawaii and of Puerto Rico, in all cases, civil or criminal, wherein the Constitution or a statute or treaty of the United States or any authority exercised thereunder is involved; in all other civil cases wherein the value in controversy, exclusive of interests and costs, exceeds $5,000, and in all habeas corpus proceedings.”
The jurisdictional claim is that in consequence of an error in charging the jury appellant was denied due process of law in contravention of the Fifth Amendment. The deprival of due process is said to reside in the italicized portion of the following instruction pertaining to…
Dissenting Opinion
Denman, J.
(dissenting).
It is erroneous to state that in any federal court, much less any Hawaiian court, has it been held that jurors may find an *291 accused man guilty if they have a “probable doubt” as to his guilt. It was not so held by the Hawaiian supreme court in this or any other case. As discussed infra, the question was not raised there.
This appeal clearly presents a constitutional question of paramount substance within Judicial Code § 128(a), 28 U.S.C.A. § 225 (a), set forth in the second paragraph of the court’s opinion. It should be answered in a reversal of the judgment from which the appeal is taken.
If the opinion stands, the challenged instruction is valid in every criminal case in every federal district court in the circuit. The Constitution is not one thing for the Hawaiian Islands and another for the continental federal courts. It is inconceivable that the Constitution would permit the Hawaiian courts any more than the district courts of the United States to allow an accused person to be convicted on an instruction that guilt could be determined on a mere preponderance of the evidence. It is equally true of the wrongful instruction here approved.