393.1121 McMillan, Archibald/12–2044: Telegram
The Appointed Ambassador in China (Hurley) to the Secretary of State
[Received 5:25 p.m.]
2043. Archibald McMillan, American driver for Friends Ambulance Unit, was found guilty of unintentional homicide by negligence in course of occupation following trial on December 8, in Experimental District Court of Chungking attended by officer of Embassy. McMillan sentenced to 4 months’ imprisonment which was suspended for 3 years during good behavior. Prosecution result of automobile accident occurring near Chungking on March 7, 1944 in which woman aged 57 received injuries resulting in death.
Facts appear to be as follows: (1) McMillan was driving FAU1 charcoal-burning truck up hill in second gear at approximately 6 miles per hour when overtaken by rapidly moving unidentified vehicle (assumably Chinese army truck) which, without warning, forced McMillan to extreme left side of road by cutting in closely ahead of McMillan before clearing his truck; (2) McMillan had no time to sound horn which was unnecessary because of loud engine noise; (3) although truck cleared three pedestrians walking along left side of road, it assumably struck large bundle of sugar cane being carried by deceased which projected into roadway; (4) deceased was in turn thrown to ground receiving multiple injuries; (5) deceased was taken by McMillan to nearby first aid station [which] refused to treat her and she died some 5 hours later.
Case for prosecution was presented by procurator without any witnesses for prosecution and apparently rested on two premises: (1) Defendant did not sound horn and (2) truck struck body of deceased. Point 1 was satisfactorily explained by defendant and 2 was refuted by medical testimony describing position and character of injuries.
[Page 1451]Defendant was not permitted to use excellent interpreter he provided but required to use court interpreter. Resulting translations so faulty and misleading that defendant elected to testify in Chinese which he speaks fluently. Impression on court apparently favorable.
Fact that McMillan paid burial expenses, settled solatium on family of deceased and received written discharge of liability not introduced at trial. Charges not brought up by family but by procurator at own instigation. Judge Helmick2 states that “no district attorney in the United States would have prosecuted such a case because of complete lack of evidence of wilful or reckless negligence such as is necessary to support charge of manslaughter under our laws.”
Although there is no appearance of any anti-foreign bias in the courts, Embassy considers it most unfortunate that verdict should be so glaringly unjust in first trial of American citizen in Chinese court since abolition of extraterritoriality,3 particularly in view of preponderant evidence in favor of defendant, lack of witnesses for prosecution and expressed opinion of both foreigners and Chinese attending trial that McMillan would be exonerated. Full text of Judge’s decision not yet available, but brief press announcement indicates that Judge may have confused the facts. Case exemplifies shortcomings of Chinese judicial system which puts burden on defendant to establish innocence and does not facilitate development of facts. Result also indicative of what Americans may expect in future when larger issues at stake.
McMillan has elected to enter an appeal to the high court which will necessitate a complete re-trial.
I have expressed orally to the Foreign Minister4 our surprise and disappointment over the conduct of this case and the verdict.
Despatch follows.5