People v. Yee Fook Din, No. 21174

No. 21174 | Cal. | Feb 28, 1895

McFarland, J.

The defendant was charged with the crime of an assault with intent tó commit murder, alleged to have been made with a dagger, and was convicted. He appeals from the judgment and from an order denying a motion for a new trial.

It is clear that improper evidence highly prejudicial to appellant was erroneously admitted, and the only question is whether or not appellant made and took proper objections and exceptions.

The assault was committed about midnight on December 4, 1893, at the corner of Pacific and Dupont streets, in the city of San Francisco, and defendant was not arrested until January 1st—twenty-seven days after-wards. On the witness-stand the officer who made the arrest was asked by counsel for the people, “ Did you find any thing on him”? To this counsel for appellant objected and the objection was overruled and exception taken. Perhaps this question was not vulnerable to a general objection, as it might have elicited an answer that would have been relevant and proper. The answer was: “I found this pistol and knife.” Ho motion was made by appellant to strike out this answer. He was then asked to state, “on what part of his person you found this dagger.” To this the appellant objected. A conversation then occurred between the court and counsel, from which it appeared that the prosecution did not propose to identify the dagger used at the time of the assault. The court finally sustained the objection, stating excellent reasons why evidence of the finding of a pistol and dagger on the person of appellant so long after the assault was not admissible. The pistol and dagger were not formally introduced in evidence, although they were evidently left in the courtroom in the presence of the jury. If the matter had rested here, perhaps there would have been no error committed of which appellant could have taken advantage. But the appellant took the stand as a witness for himself. His testimony was very brief, and was, substantially, that during the entire night of the alleged assault he was from 6 o’clock in the evening at the house of his employer at a certain point on Dupont street. The first question asked him on cross-examination by special counsel for the people was: “Where did you get that from”? (Knife shown witness.) To this appellant objected. The court overruled the objection and appellant excepted. Counsel for the people then proceeded to examine him at length as to the knife and the pistol —making him tell how he got them, how he had them upon his person when arrested, etc. In his argument to the jury counsel for the people commented upon the knife and pistol and the manner in which appellant said he got them. To this point of his argument appellant objected; but the court overruled the objection, and allowed counsel to continue such comments. The above proceedings put appellant, we think, in a position to take advantage of the improper introduction of said evidence. Appellant could certainly have made his objections in better form, and could thus have brought here a record presenting his point in a clearer light; but technicalities should be liberally viewed when urged against a defendant in a criminal case.

That the evidence was erroneously admitted is clear. Proof that appellant had a knife and pistol on his person nearly a month after the commission of the alleged assault was beyond doubt inadmissible. Moreover, it was elicited by cross-examination of appellant, which was entirely inexcusable. That it was prejudicial to appellant is also beyond doubt. In order to convince the jury that he was guilty of an assault alleged to have been committed on December 4th it was no doubt argued to them that on January 1st he had a knife and pistol, and therefore was a bad man;' that on January 1st he was guilty of another crime, viz., carrying concealed weapons; and that his account of the way he got the knife and pistol was false, and therefore he had perjured himself. But he was not on trial for either of these latter offenses; he was being tried for an assault alleged to have been committed on December 4th, and upon that issue the said evidence had no legitimate bearing.

The judgment and order appealed from are reversed, and the cause remanded for a new trial.

Garoutte, J., Van Fleet, J., and Harrison, J., concurred.