303.1121 McMillan, Archibald/1–3145: Telegram

The Ambassador in China (Hurley) to the Secretary of State

135. Press reported on 30th that McMillan’s appeal (Embassy’s despatch No. 86, January IT, 1945) was “rejected on grounds of lack of evidence” in decision of First Branch Court of Szechuan. Text of decision not yet available but defense attorney confirms that decision of Experimental District Court sentencing McMillan to 4 months’ imprisonment (sentence suspended for 3 years) was sustained.

Hearing of appeal was held on January 24 and was attended by officer of Embassy. Although court again refused McMillan permission to use own interpreter, court interpreter quite competent and exact and McMillan’s interpreter was allowed to give corrections and supplementary translations where needed. Three additional witnesses introduced for defense—two eye witnesses, one Chinese and one American—all of whom corroborated McMillan’s own testimony that truck traveling slowly, that McMillan forced to extreme left side of road by military truck that passed at excessive speed and cut in without warning or reason and that McMillan’s truck could not have “struck”, “run over”, or “crushed” victim.

Defendant introduced wooden models of section of road: Both trucks, stone wall and pedestrians which he used to demonstrate to the three judges extra circumstances of accident in order to avoid previous apparent misunderstanding. Witnesses also requested to arrange models in accordance with their recollections of accident which conformed exactly with defendant’s testimony.

Doctor who gave deceased superficial medical attention at first aid station but refused her entrance as patient because of orders also appeared as witness for defense. He states that victim was suffering mainly from shock and that fractures only slight; that truck may have hit deceased but certainly did not run over or “crush” her.

Prosecution did not introduce single shred of evidence and procurator in statement appeared to side with defendant. After stating McMillan was Allied friend who had voluntarily come to China to help with war, he presented following four points for consideration of court: (1) whether death was caused by truck striking body of deceased or by her fall; (2) whether McMillan’s act of swerving to left was to avoid collision and that, if so, it cannot be considered a crime as it was only recourse to avoid an accident; (3) whether McMillan’s occupation is that of “religious journalist”, as claimed, or “truck driver”; as defendant obviously a religious journalist and now voluntarily and temporarily serving with FAU as truck driver, he [Page 1455] cannot be accused of “negligence in course of his occupation” and only article of “ordinary negligence” can be applied; (4) whether deceased was to blame or contributed to accident, that is, defendant is not responsible if death was caused by victim’s negligence; the noise made by the truck was loud, victim’s daughter was uninjured, and space between truck and wall was sufficient to permit passing of pedestrians; it is frequently true in Chungking that pedestrians pay no attention to horns, but noise of truck was louder than horn; therefore victim was partially to blame and question one of contributory negligence.

McMillan in final statement thanked court for judge’s consideration and for vastly improved quality of interpreting. He stated that as he had never received any money for truck driving, it could not be considered as his profession. McMillan also declared that he did not want any special consideration given his case simply because he was working with FAU to help China; he stated that he only desired a fair, just trial in which the facts themselves would govern and that he was confident he would receive it.

Following conclusion of hearing, court adjourned to hear noise of typical FAU charcoal-burning truck without muffler and all judges appeared convinced that sound of a motor horn would be inaudible. Defense attorney also presented court with a pig’s head which had previously been run over by rear wheels of truck as evidence of “crushing” propensities of truck on bone.

FAU defenders, attorney and others who attended trial uniformly expressed astonishment at the verdict of high court as conduct of hearing, attitude of judges, absence of any semblance of a case for the prosecution and sympathetic defense of procurator had led to foregone conclusion of all concerned that decision of lower court would be reversed and defendant adjudged innocent.

McMillan now planning appeal to Superior Court which could not necessitate re-hearing but solely review of testimony and evidence previously presented and application of law.

Embassy has as yet received no reply to its note of January 5 to the Ministry of Foreign Affairs7 complaining about the procedural conduct and verdict of McMillan’s first trial.8

  1. Not printed.
  2. The records of the Embassy in China located in the National Archives (804.1 McMillan) indicate the receipt of a note by the Embassy from the Chinese Foreign Office, dated February 22, embodying a communication from the Chinese Ministry of Justice quoting a despatch from the Experimental District Court of Chungking. The Court undertook to refute the charges set forth in the American note of January 5. The Ministry added that it had given due attention constantly to cases involving foreign nationals and had urged various grades of courts to handle such cases expeditiously and justly, not only those involving Americans but those involving nationals of all other countries as well, and that the American Government had no cause for solicitude and apprehension.