State v. Chong Ben, 173 P. 258

State v. Chong Ben

173 P. 258 | Or. | 1918

Lead Opinion

McBRIDE, C. J. —

1, 2. It is claimed by the appellants that the act' of 1917 repealed by implication Section 1586, L. O. L., supra, as amended by Chap. 127, Laws of 1911, and also Sections 1592 and 1724, L. 0. L., as amended by Chap. 127, Laws of 1911, but we are of *320the opinion that Section 14 last above quoted preserves the operation of the original sections as to offenses committed before the act of 1917 went into effect, except as to Section 1586, and as to this we are of the opinion that Section 17 of the act of 1917 is palpably void in so far as it attempts to limit the right to a parole. Section 20 of Article IV of the Constitution is as follows:

“Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not' be expressed in the title, such act shall be void only as to so much thereof as shall not be expressed in the title.”

The title of the act of 1917, supra, is as follows:

“An Act to amend Sections 6, 7, 8, 14, 15, 16 and 17 of Chapter 127 of the General Laws of the State of Oregon for the year 1911, entitled ‘An Act to en-tend and define the indeterminate sentence; to create a Parole Board, and to provide its powers and duties.’ ”

3. It will be seen that the title confines the scope of the act to the amendment of certain sections of Chap. 127, and the sections so amended are set forth at full length as amended. The act giving judges power to parole after sentence is contained in Chap. 108, Laws of 1911, and consist of a single section. It relates to a different matter from executive paroles and is not so connected with it as to logically form part of the same act. It is not embraced in the title and considered as an amendment is open to the criticism that the section which it purports to amend is not set forth at full length. It does not purport in terms to amend Chap. 108, and repeals by implication are not favored. It may also be noted that the act of 1911 has no repealing clause as to other acts upon the same subject, *321so there is ho express repeal of Chap. 108. The defendants were sentenced according to the provisions of the law as it stood before the passage of the act of 1917, and in this the court pursued the correct course. It would be going very far to hold that there was no evidence against the defendants. In our judgment the evidence was strong.

4. The testimony for the state indicated that there was some dispute or difference between the defendants and Eng Chong about a hospital bill incurred by Eng Chong, and which for some reason had been paid by the defendants or their friends. Shortly before the shooting the defendants and another Chinaman were discussing the matter together, and one of them was heard to ask Chong Ben if Eng Chong had paid back the hospital fees, to which interrogatory Chong Ben replied in effect that he had not, and that if he did not “he” or “they” (the witness gave the conversation both ways) would take a couple of shots at him. While standing alone this would not be sufficient to establish a conspiracy, yet when this threat is supplemented with evidence that Chong Ben, the man who made the threat, fired through the windows at Eng Chong, and immediately after the shooting he was seen running away from the scene with a pistol in his hand and accompanied by the other defendants, there was certainly evidence that he and they were engaged in a conspiracy to take the life of Eng Chong. There are some other incidents detailed in the testimony which, in a remote degree, tend in the same direction, but if there was any testimony tending to establish a criminal conspiracy, its weight was a question for the jury. Where three men are together discussing a common grievance and one is heard to say to *322the other two, “If this grievance is not redressed I will shoot the offender” and thereafter the one making the threat accompanied by his two companions seeks the offending party, shoots at him, and all three run away together from the scene of the crime, the average unprejudiced man would say that these facts indicated that somewhere along the line there had been a criminal conspiracy between the three to commit the offense. Substantially, that is the case here if the state’s witnesses are to be believed, and the jury evidently believed them.

The circumstances of this case differentiate it from the case of State v. Quen, 48 Or. 347 (86 Pac. 791). In that case the threat was made by the defendant in the presence of other persons who, so far as the testimony indicated, were mere passive spectators, taking no part in the conversation; while here all the parties present were discussing the grievance on two occasions and on both the same threat was made by one of them, and all three were subsequently identified at the scene of the crime.

5, 6. There is practically no objection to the instructions considered as abstract statements of the law, but it is urged that there being no evidence of a conspiracy between the defendants they were erroneous because not applicable to the evidence. As already shown, there was sufficient evidence of conspiracy to justify submission of the case to the jury and so far as the objections are based upon the ground of inapplicability to the facts they must fail.

7. It is also objected that instruction No. 7 assumes the existence of a conspiracy and, therefore, trenches upon the province of the jury, but we find nothing to justify this criticism. The instructions taken as a *323whole are eminently clear and free from even technical error, fairly presenting every phase of the ease.

The judgment is affirmed.

Affirmed. Reheabing Denied.

Rehearing

Petition eob Reheabing.

On petition for rehearing. Denied.

Messrs. Cochran £ Eberhard, for the petition.

Mr. John 8. Hodgin, District Attorney, and Messrs. Crawford £ Ealcin, contra.

In Banc.

McBRIDE, 0. J. —

Much of the argument in the petition for rehearing is devoted to criticism of Instruction No. 7, which is set forth in full at page 318, ante (173 Pac. 258). A careful reading of that instruction will not disclose a single one of the multifarious errors which the astuteness of counsel imputes to it. It is urged that the instruction is a mere abstract statement of the law. We think this objection sufficiently answered by our former opinion.

The second objection is that it “permits the jury to use acts and declarations of one against all defendants, regardless of proof of conspiracy, or whether proof of conspiracy existed at the time of the act or declaration.” The instruction will not bear such a construction. We reproduce it in its entirety:

“I instruct you that where two or more persons are associated together for the purpose of doing an unlawful act, the act or declaration of one of such persons, while engaged in or pursuant to the common object or design, is the act or declaration of all, for which all are liable, and each person so associated is *324deemed or presumed to have consented 'to or commanded what was done by any of the others.”

8. In the hypothetical case assumed by the instruction there must be, (1) two or more persons associated for the purpose of doing an unlawful act, before the declaration of one conspirator will bind the others who are associated with him in the common design, and (2) the act or declaration to be binding upon a defendant, other than the one actually performing the act or making the declaration, must be “pursuant to the common object or design.” The instruction is clear and does not carry with it the construction attributed by counsel.

9. The other objections to the instruction, briefly stated, are (1) that it permits the jury to use the acts and declarations of one defendant to prove the conspiracy as to all; (2) that it assumes the existence of the conspiracy, and, (3) that it does not require the jury to first determine from the evidence the existence of a conspiracy before considering any evidence of acts or declarations of one defendant against another. A mere reading of the instruction will convince any unprejudiced mind that these objections are each and all unfounded. The instruction was clear and correct as to the proposition stated, and. it is not claimed that any further limitations or explanations were asked by counsel for the defense. As stated in our former opinion, there was ample evidence to justify every instruction given. An instruction that the jury must-first be satisfied that a conspiracy existed before considering evidence of the acts or declarations of one defendant as against another, would have been proper although we think it might reasonably be deduced from the language used in Instruction No. 7, but no such instruction was requested. In the absence of *325such request the court had a right to assume that the defendants had no desire for further instruction upon that point.

It is needless to consume time and space discussing points already passed upon in our original opinion, or to discuss in detail the authorities cited by counsel. They were all carefully considered and we have found no reversible error in the proceedings, nor are we able to see how in any respect the rights of the defendants either under the Constitution of the United States or of this state have been infringed upon.

The petition is denied. Rehearing Denied.