89 P. 450 | Cal. Ct. App. | 1907
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *732 Defendant was charged by the district attorney of the crime of murder in killing one Louie Mong with malice aforethought on the third day of October, 1905, in the city of Fresno. After a trial, he was found guilty of murder in the first degree and judgment was accordingly entered, sentencing him to imprisonment for life. This appeal is from the judgment and order denying his motion for a new trial.
There was evidence to the effect that shortly after 10 o'clock P. M. of the day named in the information the deceased was shot and killed while in his room in Chinatown in the city of Fresno, by the defendant, who had just entered the room accompanied by four other Chinamen, all of whom were armed, and some of whom took part in the killing. After the killing the defendant and the four other Chinamen who were evidently acting in concert with him, left the room and came out of the stairway of the house into the lighted alley with their guns still in their hands. No claim is made as to the insufficiency of the evidence to justify the verdict, but it is argued *735 that certain errors of law occurred during the trial to defendant's injury, for which a new trial should have been granted, and of such character as to call for a reversal of the judgment by this court.
The first claim made by defendant is that the court erred in allowing the prosecution to call witnesses in rebuttal upon the questions of an alibi relied upon by defendant, who had introduced several witnesses to prove that he was in San Francisco and not in Fresno at the time of the homicide. The claim is made that the testimony so received is not rebuttal, and that it was incumbent on the prosecution to prove as a part of its original case the whereabouts of defendant at the time of the killing, and to make such proof by all the witnesses it intended to call upon the question under any circumstances. In other words, the proposition contended for is, that if the prosecution should prove the commission of a crime at a certain time and place by the two or three witnesses who were present, and the defendant afterward calls ten witnesses who each testifies to the effect that at the same time the defendant was at a certain room in a certain house in a different place, the people should not be allowed to call any witnesses in rebuttal. If such a proposition could be maintained the people in many cases would be powerless and crime would go unpunished. The district attorney might have evidence to show that each of the ten witnesses was not in the place testified to by them, but in a different place at the time and at the moment of the homicide, and yet the rule contended for would preclude him from showing it. The defense of an alibi is an affirmative one, and if established, a complete one, and the burden is upon the defendant to prove it. The object of the trial is to get at the truth, and while the rights of the defendant should be always carefully guarded, and the procedure designed for his protection substantially followed, yet the law will not reduce its rules to an absurdity in order to prevent a fair and full investigation by the prosecution. The district attorney had no reason to anticipate the defense of an alibi, and the evidence was competent, and in rebuttal. (State v. Lewis, 69 Mo. 92;Commonwealth v. Moulton, 4 Gray, 39; State v. Maher,
74 Iowa, 77, [37 N.W. 2]; Goldsby v. United States,
One Leu Tun was called by the prosecution, and under defendant's objection, was allowed to testify in rebuttal that on the fourth day of October, 1905, the day after the homicide, the defendant purchased a ticket at Madera, and there boarded the northbound train for San Francisco, and that witness went to San Francisco with him on the same train. It is said that the testimony was not rebuttal, but independent evidence tending to show flight of the defendant from the scene of the homicide. The evidence, if true, showed that the defendant was going away from the vicinity of Fresno toward San Francisco the day after the homicide. The defendant claimed and endeavored to establish by witnesses that he was at a certain room in San Francisco on the night of October 3d when the homicide was committed. The fact that a little after noon on the following day he was seen to purchase a ticket and board a train at a station north of Fresno, and nearly two hundred miles south of San Francisco, tended at least in some degree to disprove the defendant's claim that he was in San Francisco at the time of the homicide. It also tended to prove the theory of the prosecution that he was in Fresno and committed the murder. The fact that the evidence might have tended to prove the flight of the defendant did not make it, for this reason, inadmissible. The main purpose and object of the testimony was to be considered in determining its admissibility. If all evidence should be excluded because it might be objectionable on certain theories for certain reasons, or because it might tend in a more or less degree to prove indirectly some other fact, the administration of justice would be impracticable, and in many cases impossible. The law aims to arrive at the truth upon broader lines and by all legal means which tend to prove the fact under investigation.
Defendant's counsel argue at considerable length that the court erred in permitting evidence tending to impeach defendant's witness, Jue Doe Men, who testified in direct examination that he was at the Chinese theater in the city of Fresno at the very time of the homicide, and that he then and there saw Wong Dock, who is jointly charged with defendant, at the theater. In cross-examination the district attorney called the attention of the witness to a conversation with one Edgar, who was a witness for the prosecution, in which conversation the witness was asked in effect if he did not offer, or intimate to Edgar, that he would give him twenty dollars if he would *737
testify that he was not positive that he saw defendant in Fresno about the time of the homicide. The conversation to which the attention of the witness was called, if true, would tend to show that he was an interested witness and not worthy of credit. It is said that the attention of the witness was not called to the parties present at the time of the alleged conversation. This was not one of the grounds of objection to the question, and if it had been it would not have been a valid objection. The objection on this ground should have been to the impeaching testimony of Edgar when offered. It appears by the record that this was done, and Edgar's testimony objected to upon the ground that the proper foundation had not been laid. The better course would have been to have called the attention of the witness Jue Doe Men to the persons present at the alleged conversation, but the omission to do this is not necessarily fatal to receiving the impeaching testimony. The attention of the witness was called to the circumstances of time and place, and it clearly appeared that he understood the occasion referred to, and the conversation to which his attention was directed. He gave his version of the conversation, and denied that he offered Edgar twenty dollars. His words were: "I say this way, I say, 'You know darn well Yee Foo never came on train, you see one, you never know him.' I say, 'You know darn well not Yee Foo.' I say, 'I bet you I pick fifty Chinamen, just like workingmen, take them to China theater, you can't pick Yee Foo out,' that is what I told him." If the witness understood the circumstances of time and place, the object of this section of the code is satisfied. (Lewis v. Steiger,
The record fails to show that the court admonished the jury at each adjournment, as required by section
In the case of People v. Coyne,
In People v. Thompson,
In People v. Maughs,
The court, at the request of the prosecution, instructed the jury as follows: "There need be no appreciable space of time between the intention to kill and the act of killing — they may be as instantaneous as successive thoughts of the mind. It is only necessary that the act of killing be preceded by a concurrence of will, deliberation and premeditation on the part of the slayer, and if such is the case the killing is murder of the first degree, no matter how rapidly these acts of the mind may succeed each other, or how quickly they may be followed by the act of killing."
It is seriously urged that the court erred in giving the above instruction, and it is claimed that the supreme court expressly so held in People v. Maughs,
In People v. Weber,
In the Maughs case there was testimony that the defendant in self-defense shot decedent, a young and vigorous man, his physical superior, who was making an assault upon him with a deadly weapon. The case was reversed upon several *740 grounds, and not solely upon the instruction omitting the words"result of." Not only this, but the instruction was not preceded by language similar to that quoted as part of the instruction in this case. We, therefore, are not disposed to extend the doctrine of the Maughs case beyond its own facts, and we apprehend there will be few cases in which it cannot be distinguished.
The court refused to give, at the request of the defendant, the following instruction: "The presumption of the defendant's innocence does not cease at any time during the taking of the testimony or of the argument, nor does it cease when the case is finally submitted to you for your consideration, but this defendant is presumed to be innocent all through the case, and in your deliberations in the jury-room, you are to examine the testimony in the light of that presumption." The instruction might well have been given, but the failure to give it is not such error as to justify a reversal of the case. The jury were elsewhere told that the presumption of innocence "attaches to every stage of the proceeding," and that the burden is upon the prosecution to prove each material fact beyond a reasonable doubt and to a moral certainty, and that this burden "remains through the entire case."
We have examined the other alleged errors as to giving and refusing instructions, and find no occasion for discussing them separately. The instructions as a whole gave to the jury a full and fair statement of the law pertaining to each and every phase of the case.
Counsel have devoted a great part of their brief to discussing certain remarks made by the district attorney in his address to the jury. We have carefully read the record, and the briefs, and conclude that the matter to which our attention is called would not justify a reversal of the case. District attorneys, in their zeal to obtain convictions, often overstep the proper bounds, and by intimation, innuendo or statement, get before the jury matters not in evidence. When such course has been willfully pursued or where something is stated and represented as a fact, and the statement is damaging and not borne out by the record, the courts of appeal have not hesitated to reverse the case, and grant a new trial. But in the argument of a case, where counsel has become zealous in his cause, and upon his own view of the case works his mind up to believe certain things, he is apt to exaggerate *741 and draw upon his imagination. We apprehend that this is well known to juries, and for this reason it would have to be a clear case of such misconduct on the part of the district attorney to justify a reversal. In the case at bar it is evident that the theory of the district attorney was that the killing was the result of a decree or order of the highbinders, or of a society known as the Bing Kung Tong. There is evidence that one Jake Num, living at 41 Sullivan alley, in the city of San Francisco, belonged to the Bing Kung Tong. One Hammel was employed as his body guard. Defendant was the cook employed by Jake Num. Other Chinamen were there, and it was at this place, 41 Sullivan alley, where defendant attempted to locate himself at the time of the homicide by the testimony of several witnesses. The district attorney, after referring to the society and what he called "the alibi factory," used the language of which most complaint is made, and which appears the most objectionable, which is as follows: "Suppose Lew Suey had been a member, and Yee Foo and his associate highbinders had killed him on that evening, and they had gone back, as he did go back, by a conveyance to Madera, and from there to San Francisco, and had reported to Jake Num and given an account of their stewardship, and he said: 'What have you done, killed Louie Mong?' 'We killed him.' 'Is that all?' 'Well, there was another fellow there and we thought we best kill him.' 'Yes, but who was he?' 'Why, it was Lew Suey, a member of the Bing Kung Tong.' Now, I don't suppose that Yee Foo would be retained in the employ of Jake Num for other murders if, when he goes out to do his bidding to kill one man of the Hip Sing Tong, that he at the same time, and simply for the purpose of covering up his tracks, kills a man of the Bing Kung Tong, one of their own members."
It is evident that the district attorney was partly drawing upon his imagination by way of illustration. He finally said, "Now, I don't suppose Yee Foo would be retained in the employ of Jake Num for other murders if," etc. Defendant appeared from the testimony to have been in the employ of Jake Num. The evidence justified the district attorney in claiming that defendant committed murder in the case in which he was being tried. As to whether or not he would be retained for other murders had reference to the future. He did not accuse the defendant of having ever committed *742
any specific crime other than the one for which he was being tried. He did not state anything as a fact against defendant that was not in evidence. In the leading case ofTucker v. Heniker,
In People v. McMahon,
In People v. Wheeler,
In People v. Glaze,
In People v. Soeder,
In People v. Weber,
We have discussed the latter point upon its merits, but we might well have held the remarks not subject to review for another reason. The record merely shows that the language of the district attorney "is excepted to as unsupported by any evidence, and as prejudicial to the substantial rights of the defendant." The court was not asked to strike out the objectional remark, nor does it appear that the court ruled upon the exception. It is but fair to require defendant's attorney, in case of objectionable remarks by the district attorney, to call the court's attention to them then and there, and invoke the aid of the court to prevent the remarks from injuring the defendant, before he will be allowed to urge the matter as error in this court. In such case this court will not hold the remark error upon which to reverse the case. (People v. Shears,
There was no error in the reference of the district attorney to the failure of Wong Dock, who was jointly charged with defendant, to testify in the case. No reference was made to the failure of the defendant to testify, and no reason occurs to us why the remark was not legitimate argument as to a codefendant. The law does not exempt a defendant, who is jointly charged, from being a witness either for or against his codefendant. (Ex parte Stice,
That it is not error for a prosecuting attorney to refer to the fact that a codefendant has not been called to testify has been held in State v. Mathews, 98 Mo. 125, [10 S.W. 144, 11 S.W. 1135]. (See, further, State v. Millmeier, 102 Iowa, 692, [72 N.W. 275]; United States v. Candler, 65 Fed. 308;Commonwealth v. McCabe,
We have carefully read the affidavits in regard to newly discovered evidence. The main portion of them relates to statements as to evidence that would be cumulative. Several of them relate to statements that could only be admissible by way of impeachment. There were counter-affidavits, and the learned judge who tried the case considered them in the light of all that had occurred during the trial. The court does not *745
appear to have abused its discretion in denying the motion on this ground. (People v. Rushing,
The judgment and order are affirmed.
Hall, J., and Kerrigan, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 5, 1907.