393.1121 Smit, Albert H./6: Telegram

The Minister in China ( Johnson ) to the Secretary of State

137. Legation’s 131, Feb. 15, 3 p.m.

1.
In a despatch, dated February 12th, Cunningham states that the Smit case has been discussed with the District Attorney who “does not feel that the information placed before him warrants the prosecution of Mr. Smit on a criminal charge. With reference to the question of the advisability of prosecuting Mr. Smit irrespective of whether or not criminal negligence might reasonably be attributed to him in connection with this accident, in order that the American authorities could confirm their jurisdiction over Mr. Smit and at the same time confront the Chinese authorities with a judicial decision in the case, Mr. Sellett was of the opinion, in which this office concurs, that on account of the publicity incidental to the trial of such a case in Shanghai more ill feeling would be stirred up by an inevitable acquittal than by failure to prosecute.”
2.
Notwithstanding the opinion expressed by the District Attorney and the Consul General at Shanghai, the Legation adheres to the view that the Consul at Nanking (district [in which] the incident occurred) might very properly hold a fresh investigation with a view to determining whether under American law any offense has been committed by Smit. In view of the fact that local Chinese court has already reviewed the facts and handed down a judgment it seems to me that only through some judicial action by the American authorities concerned can we hope to avoid the charge that we are attempting to shield Smit by refusing to prosecute while at the same time demanding that the Chinese set aside the judgment against him on the ground of the case being beyond the scope of their jurisdiction.
Johnson
  1. Telegram in two sections.