Young v. Territory of Hawaii

• Decision Date: 26 August 1947
• Docket Number: No. 11228.,11228.
• Citation: 163 F.2d 490
• Parties: YOUNG et al. v. TERRITORY OF HAWAII.
• Court: U.S. Court of Appeals — Ninth Circuit

163 F.2d 490 (1947)

YOUNG et al. v. TERRITORY OF HAWAII.

No. 11228.

Circuit Court of Appeals, Ninth Circuit.

August 26, 1947.

Fred Patterson and E. J. Botts, both of Honolulu, T. H., and Herbert Chamberlin, of San Francisco, Cal., for appellants.

C. Nils Tavares, Atty. Gen., W. Z. Fairbanks, Pub. Pros., of Honolulu, T. H., and John E. Parks, Sp. Deputy Atty. Gen., for appellee.

Before GARRECHT, STEPHENS and BONE, Circuit Judges.

GARRECHT, Circuit Judge.

The appellants were convicted by a jury in the First Circuit Court of Hawaii of the crimes of murder in the second degree and abortion. The judgment of conviction was affirmed by the Supreme Court of the Territory of Hawaii. 37 Haw. 189.

A careful reading of the 1,000-page printed record convinces us that the appellee adduced ample evidence to sustain the conviction. Summarized, the evidence was as follows:

The appellant Young was a licensed physician of the Territory, and also of the British Empire. The appellant Nozawa described herself as a "nurse" employed in the appellant Young's office, but Dr. Young testified that it would be "more appropriate" to describe her as his "office girl".

On September 19, 1942, Mrs. Gladys Tai Yee, twenty years old, the mother of two children, called at the office of Dr. Ho Quong Pang, her family physician, for the purpose of ascertaining whether she was pregnant. Judging from the history of her case and relying also upon his own findings, Dr. Pang believed that she was about four weeks pregnant, and he so informed her. She wanted the doctor "to do something to bring on menstruation", but he told her that he "would not perform an abortion on her."

On Friday, September 25, 1942, Mrs. Yee walked out of her home on her way to call at the office of Dr. Young. The appellee produced a parade of relatives and neighbors to prove that she seemed to be in good health when she left her house, and that she had not been sick before consulting Dr. Young. She was not coughing or spitting blood.

Mrs Yee left her home at about 10 or 11 o'clock in the forenoon. Before leaving, she showed her mother $150. Mrs. Yee's husband testified that he had kept about $170 in a peanut can, stowed away in a trunk, and that after her death he found only $20 of that money left. In a statement made at the police station and read at the trial, the husband said that on that day or on the previous day she had told him she "was going to take $150 to pay Dr. Young".

At this point, the narrative of Mrs. Yee's ill-fated visit to Dr. Young's office is taken up in two statements made to detectives by the appellant Nozawa at the Honolulu police station on Tuesday, September 29, 1942. One statement was taken down in shorthand in the morning of that day, and the other, covering much the same ground, was taken in the afternoon. Dr. Young was present when each statement was taken. Miss Nozawa refused to sign either statement.

The first specification of error in the present appeal sets forth that the Supreme Court of the Territory erred in holding that the trial court did not err in admitting these two statements in evidence. The grounds upon which this specification is based will be considered hereinafter.

Dr. Young, Miss Nozawa and other defense witnesses fixed the date of Mrs. Yee's visit as Thursday, September 24, instead of Friday, September 25, although Miss Nozawa added that she was "not quite sure". The latter date, however, was unanimously agreed upon as the correct one by the Territory's witnesses.

In her statements, Miss Nozawa said that Mrs. Yee came to Dr. Young's office "for delayed menses". Dr. Young examined Mrs. Yee "through the breast" and in the vagina. He consented to relieve her condition relative to the menses. He asked her to lie on the operating table and to remove part of her under-clothing, which she did, placing the removed portion on a chair. Dr. Young then opened her womb with an instrument that looked "like a spoon split in half" — later identified as a speculum — while Miss Nozawa "sterilized the inside of the womb" with a substance that she called "mercursen", applied with cotton.

Continuing her statement, Miss Nozawa said that Dr. Young "put jello in" Mrs. Yee's womb. To do this, he used a glass tube with "a silver thing at the point," the glass tube and a silver-colored tube containing the "jello" both being "clinked together", or attached. Probably because of language difficulties, the Japanese girl's testimony at this point was not altogether clear, but evidently she was trying to say that the doctor inserted the glass tube into Mrs. Yee's womb and squeezed the jelly from the container tube, which resembled a toothpaste tube, through the glass tube into the patient's womb.

Dr. Young then gave Mrs. Yee "two codein pills to stop the pains," Miss Nozawa assisted her in putting on her undergarment, and, after resting for about half an hour, the patient left the office in a taxicab called by Miss Nozawa.

While she was giving her first statement, Miss Nozawa was asked by one of the detectives, whether she remembered a girl named Rose Dolim. She replied in the affirmative, and stated that the girl had come into the office for "delayed menses" and that Dr. Young had done "the same to Rose Dolim as he did to Gladys Yee", including the insertion of "the same kind of paste". She also told the detectives that still another girl, a Japanese whose name may or may not have been Kaneshiro, was put through "the same operation and treatment" in Dr. Young's office as had been performed on Gladys Yee.

Miss Nozawa also stated that "patients that have abortion performed on them pay in cash", and that "no bills are sent to them." She said she knew that it was illegal to perform abortions, but nevertheless she assisted in them.

What happened to Mrs. Yee after she left Dr. Young's office was graphically told by Jack Ho King Yee, the girl's husband.

On Friday, September 25, Yee's mother-in-law called him up while he was at work, and he went home at 1:30 or 2 o'clock in the afternoon. He found his wife lying on the floor, coughing blood, and complaining that she was dizzy. During the whole time that they had been married, she had never coughed blood before. He called up Dr. Young at about 6 P. M. The doctor came over, examined Mrs. Yee, told the family not to get excited, that she was coughing blood because she was excited, and that "the baby could come at night, at 8 o'clock."

Mrs. Yee's condition grew worse as the night wore on. Shortly after midnight, she was unable to talk or to open her eyes. At about 2 o'clock Saturday morning, Yee called up Dr. Young again, and said to him:

"Dr. Young, no matter, I have to take my wife to the hospital to save her life; and her hands all blue already."

Once again Dr. Young came to the house, and once again he attributed Mrs. Yee's condition to her being "excited" and "nervous". This time, however, he left two yellow pills and two white pills to be administered to the patient to relieve her pain and to enable her to sleep better.

During this early morning visit, according to Yee, Dr. Young told him that "the medicine" that was working "inside the stomach" would "kill the baby and pull it out". When Yee again insisted that he wanted to take his wife to the hospital, Dr. Young told him not to be worried or excited, and that "the baby may come at six o'clock Saturday morning."

Mrs. Yee continued to be unable to talk and "rolled around" in her bed. At 9:30 Saturday morning, Yee went to Dr. Young's office, and repeated his statement that "I must take my wife to the hospital". And once again the doctor tried to reassure Yee, adding:

"If you send her to the hospital it is going to be all jammed up."

At 2:30 or 3 o'clock Saturday afternoon, Yee again telephoned to Dr. Young, saying:

"Dr. Young, I must, in my heart, send my wife to the hospital to save her life, she is almost dying."

Dr. Young once again came to the Yee home, once again asked the family why they were "excited", and told them that "This is going to be all right". Yee also quoted the physician as saying:

"Don't worry, you don't have to send her to the hospital, the baby is going to * * * come out along at 8 o'clock."

Dr. Young gave Mrs. Yee two injections "to make her sleep for 12 hours", and left directions that she should be given two more pills at eight o'clock. Yee identified two empty containers of pituitary extract and ergonovine as having contained the material that Dr. Young injected into Mrs. Yee. Dr. Young promised to return to see her at 8 o'clock the following morning, and departed.

About 15 or 20 minutes after Dr. Young left the Yee home, Mrs. Yee died.

Five times within as many minutes, the bereaved husband, who stated on cross-examination that he intended to bring a damage suit against Dr. Young, charged that the latter had killed Mrs. Yee. Obviously referring to the attending physician — and so understood by defense counsel — Yee hurled his accusations:

"* * * he kills my wife. * * * Why he kills my wife; he killed my wife, see. * * * he kills my wife. * * * He kills my wife."

On Sunday morning, September 27, 1942, Dr. Young signed a death certificate for Mrs. Yee giving as the "immediate cause of death" the following:

"Pulmonary congestion and haemoptysis Due to Mitral Stenosis."

Translated into layman's language, this would mean a congestion of the lungs and a spitting of blood, due to the narrowing of the mitral valve of the heart; i.e., the valve that prevents the blood in the left ventricle from returning into the left atrium, or auricle. In still less technical language, "mitral stenosis" could be defined as the leakage of a valve of the heart.

On Monday, September 28, 1942, Dr. Richard K. Chun, assistant city and county physician of Honolulu, performed an autopsy on the body of Mrs. Yee. He found "the valves of the heart to be clear and competent." "In other words", Dr. Chun testified, "they closed...