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 reasonable doubt:
“I further instruct you that the burden of proof is upon the Territory and the law presumes the defendant to be innocent, and this presumption continues and attends him at every stage of the case until it has been overcome by evidence which proves him guilty to your satisfaction and beyond a reasonable doubt. And in this conneePage 290tion, I instruct you that the doubt which will entitle the defendant to an acquittal must be a reasonable doubt, not a conjured-up doubt, such a doubt as you might conjure up to acquit a friend, but a doubt that you could give a reason for.
“A reasonable doubt is not a slight doubt, not a probable doubt, not a possible doubt, not a conjectural doubt, not an imaginary doubt, not a doubt of the absolute • certainty of the guilt of the accused, because everything relating to human affairs and depending upon mortal evidence is open to conjectural or imaginary doubt, and because absolute certainty is not required by law. The real question,is whether after hearing the evidence and from the evidence you have or have not an abiding belief, amounting to a moral certainty that the defendant is guilty and if you have such belief so formed, it is your duty to convict and if you have not such belief so formed it is your duty to acquit” [Emphasis supplied.]
Instructions essaying to define reasonable doubt in terms “of a doubt that you could give a reason for,” or in language of like import, have been criticized or condemned in some cases and defended in others.1 This court in Owens v. United States, 9 Cir., 130 F. 279, 283, disapproved of a similarly worded instruction, but later we held that an identical definition of reasonable doubt, when considered with the whole body of instructions given, was not reversible error, Louie Ding v. United States, 9 Cir., 246 F. 80. In upholding the instruction in. the present case the territorial court said that “from long-continued use and uniform approval by this court when before it for review, it has assumed the dignity of a stock instruction.” Earlier approving decisions of the court, reaching as far back as 1889 and continuing through the years, are cited, including in the number several capital cases; and the court concludes that “measured by the purpose sought to be attained the instruction complained of is, as .a whole, as good as can be devised to convey to the lay mind the ordinary accepted definition of reasonable doubt.” 37 Haw. 154, 155.
So far, then, as concerns the instruction under attack, appellant’s trial appears to have been conducted in conformity with the settled course of judicial proceedings in the territory as established by its laws and the decisions of its courts. While perhaps subject to criticism as affording leeway for misunderstanding, the instruction does no violence to our basic concepts of liberty and justice. Buchalter v. New York, 319 U.S. 427, 63 S.Ct. 1129, 87 L.Ed. 1492. The due process clause of the Fourteenth Amendment “leaves the states free to enforce their criminal laws under such statutory provisions and common law doctrines as they deem appropriate; and does not permit a party to bring to the test of a decision in this court every ruling made in the course of a trial in the state court,” Buchalter v. New York supra, 319 U.S. pp. 429, 430, 63 S.Ct. 1130, 1131. And the same holds good of the Fifth Amendment in respect of the administration of the criminal laws of the Territory of Hawaii. Fukunaga v. Territory of Hawaii, 9 Cir., 33 F.2d 396, 397; Kimbrel v. Territory, 9 Cir., 41 F.2d 740. Consult further Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969; Davis v. Texas, 139 U.S. 651, 11 S.Ct. 675, 35 L.Ed. 300; Howard v. Fleming, 191 U.S. 126, 137, 24 S.Ct. 49, 48 L.Ed. 121. It follows that no federal question of substance is presented by the appeal.
-On the oral argument here a member of the court questioned the propriety of the phrase “not a probable doubt” as employed in the definition given. We are not disposed to take notice of any point not raised below, but even if it were otherwise we see no vice in this verbiage in the sense of the due process requirement. The whole instruction, this phrase included, was before the supreme court of the territory and had its approval as being in line with long-settled territorial practice.
Appeal dismissed.
1.
CoffStfit auiirOWties cited by tbe court oelow, Territory v. Young, 37 Haw. 150.