92 Mo. 395 | Mo. | 1887
-By a special grand jury at the May term, 1885, of the St. Louis criminal court, the defendant was indicted jointly with Chyo Pock, Hook Siagk, Cong Seng, Chyo Groom, You Sing, and Pock Sig, all Chinamen, for the murder of Lou Johnson, also a China-man, in the city of St. Louis, on June 1, 1885. The defendant obtained a severance, and being separately tried, was convicted at the January term, 1886, of murder in the first degree, and sentenced accordingly. The indict - ment contained three counts, all charging the same offence: (1) That Chyo Pock, Chyo Chiagk, Hoc!?; Siagk, and Cong Seng, stabbed and killed deceased with knives. (2) That Chyo Pock and Chyo Chiagk stabbed and killed deceased, Hock Siagk and Cong Seng being present, aiding and abetting, and (3) that Chyo Chiagk (appellant), stabbed and killed deceased, Chyo Pock, Hock Siagk, and Cong Seng, being present, aiding and abetting in the killing.
In each and all of these counts the defendants, Chyo Groom, You Sing, and Pock Sig, were charged as accessories before the fact.
I. Was error committed in permitting Cong Seng, jointly indicted with defendant and others, but not put
Bishop says: “One of two or more joint defendants cannot be a witness for or against another, even on a separate trial, until the case as to himself is disposed of, by a plea of guilty, or a verdict of conviction or acquittal, or a discharge on a plea in abatement; then he may be. Sentence need not be rendered. Of course, if the indictments are separate, he may be a witness, though the offence is supposed to be joint.” 1 Bish. Crim. Proc., sec. 1020, and cas. cit. “According to Lord Hale, it was the usage in his time not to indict one who was to be a witness, because this would disparage his testimony. But, in our day, no good reason appears for attempting to veil from a jury the real facts, with a gauze so transparent. Hence, with us, one of the methods is for the prosecuting officer to require the accomplice to submit to be indicted with the rest. Whereupon, the law is, that a joint defendant cannot be a witness for or against the others, even on a separate trial, till the case is disposed of as to him, by a conviction or acquittal, or by a nolle prosequi. But judgment on the conviction need not be rendered ; therefore, the defendant, who is to testify, pleads guilty, and then testifies. If his testimony entitles him to be discharged, there is a nolle prosequi, or other appropriate proceeding ; or if not, the court has only to render sentence on the idea of guilty.” lb., sec. 1166, and cas. cit.
Another author says: “But as in civil actions against several defendants, a co-defendant may sometimes be so circumstanced as to be a competent witness ; so in criminal prosecutions, one of several persons jointly indicted may be rendered competent to give ' evidence, either for the prosecution or for his co-defendants. Thus, upon an information by the crown against two or more, if a nolle prosequi be entered by the attorney general, either before or at the trial, as to one of the defendants, such defendant may be called as a witness for the crown against his co-defendant. So, where-, upon a joint indictment against two, one had pleaded in abatement, and for want of replication, judgment had been entered that he should be dismissed and discharged, he was admitted, without objection, as a competent witness for the other defendant, being himself no longer interested in the event of the prosecution.” 1 Phil. Evid. [4 Ed.] p. 64. ■ “It has been held, in a recent case, that a prisoner, who has pleaded guilty to an indictment, is a competent witness against other defendants joined in the same indictment. It was contended in this case that the defendant was not admissible as a witness against two other prisoners included in the same indictment, because he was a party to the record ; but Alder-son, B., observed that he was not a party to the issues ; the only issues being whether the two other prisoners were guilty or not.” Ib., p. 65.
Greenleaf says: “In regard to defendants in criminal cases, if the state would call one of them as a witness against others in the same indictment, this can be done only by discharging him from the record, as by the
Elsewhere, the same author states: “The usual course is to leave out of the indictment those who are to be called as witnesses ; but it makes no difference as to the admissibility of an accomplice, whether he is indicted or not, if he has not been put on his trial at the same time with his companions in crime. He is also a competent witness in their favor ; and if he is put on his trial at the same time with them, and there is only very slight
Wharton says: “An accomplice is a competent witness for the prosecution, although his expectation of pardon depends upon the defendant’s conviction, and •although he is a co-defendant, provided, in the latter case, his trial is severed from that of the defendant against whom he is offered.” Wharton on Crim. Evid. [9 Ed.] sec. 439. In another place he says : “At common law, an accomplice, not a co-defendant, is always a ■competent witness for the defendant on trial; but when indicted jointly with the defendant on trial, although he has pleaded and defended separately, he is not, at common law, a competent witness for his co-defendants, unless immediately acquitted by a jury, or a nolle prosequi be entered; and the same rule applies to accessories. Whether the trial be joint or several, the rule is said to be the same.” Ibid, sec. 445.
I will now briefly examine our own decisions: In Garrett v. State, 6 Mo. 1, it was ruled that an accomplice jointly indicted with others, who is not put on his trial with them, may be a witness for them. In McMillen v. State, 13 Mo. 30, this view of the admissibility of a witness under such circumstances was disapproved, though no ruling was made. In Fitzgerald v. State, 14 Mo. 413, where several were jointly indicted, it was ruled that it was discretionary with the trial judge whether a severance should be allowed the defendants. All were then pat upon their trial, and it was then asked that the jury be permitted to pass on the case of Ward, -so that he might be used as a witness for his co-defendants. This request was also refused, and the result was
This case was followed, in 1851, by that of State v. Roberts, 15 Mo. 28, where quite an extensive discussion of the point decided in Garrett v. State, supra, was had, and the conclusion reached, after an examination of the authorities, was, that where two defendants are jointly indicted, neither is admissible as a witness for his co-defendant, no matter- whether they be jointly or separately tried. On this point, Scott, J., dissented. In 1852, it was ruled to be the proper practice for the state to enter a nolle prosequi, in order to render one defendant a competent witness against his co-defendant. State v. Clump, 16 Mo. 385. In 1854, the ruling made that jointly-indicted parties cannot be witnesses for each other, whether jointly or severally tried, was again announced. State v. Edwards, 19 Mo. 674. In 1855, the legislature enacted the following section: “When two or more persons shall be jointly indicted, the court may, at any time before the defendants have gone into their defence, direct any defendant to be discharged, that he may be a witness for the state. A defendant shall, also, when there is not sufficient evidence to put him' on his defence, at any time before the evidence is closed, be discharged by the court, for the purpose of giving testimony for a co-defendant. The order of discharge shall be a bar to another prosecution for the same offence.” 2 R. S., 1855, p. 1193, sec. 25. The section just quoted is now section 1917, Revised Statutes, 1879.
This section, coming on the heels of so much discussion of the point already mentioned, may, doubtless, be regarded as a legislative regulation of the practice to be pursued, where either the state or a co-defendant desires to use, as a witness, a co-defendant jointly indicted ; and, in view of the authorities cited, and the
The second question propounded is to be considered in connection with another statutory provision, but for the existence of which it is clear that the co-defendants of the defendant on trial would not have been admissible as witnesses in his behalf. Section 1918, Revised Statutes, 1879, so far as necessary to quote, is as follows : “No person shall be incompetent to testify as a witness, in any criminal cause or prosecution, by reason of being the person on trial or examination; * * * provided, that no person, on trial or examination, * * * shall be required to testify; but any such person may, at the option of the defendant, testify in his behalf, or on behalf of a co-defendant.” I do not find that this section has ever received construction, or to have been even so much as alluded to, in the course of judicial investigation. The case of State v. Martin, 74 Mo. 547, decided in 1881, cited by the attorney general, makes no allusion to this section, but adheres to the rule announced in State v. Roberts, supra, declaring that such rule is recognized in the section already discussed.
Now, to the section under discussion: Taking this section in its literal acceptation, it must be confessed that it only applies to “the person on trial or examination. ” “ Such a person, ” i. e., “on trial or examination, ’ ’ “may, at the option of the defendant, testify in his behalf, or on behalf of a co-defendant.” Taken as it reads, this section would not only bear the meaning just attributed to it, but would allow a defendant, “on trial or examination,” to decide whether his co-defendant
On the other hand, if a different construction be given that section, such a construction accords well with its evident fundamental purpose, that of being a remedial section, giving a testifying capacity where none existed before, therefore, to be construed liberally; to receive an equitable. interpretation which will enlarge the letter of the act, so as more effectually to meet the beneficial end in view, and prevent a failure of the remedy. 1 Kent’s Com. 465; Smith’s Com., secs. 520, 547. In such cases, the reason of the law prevails over its letter, and general terms are so limited in their application as not to lead to injustice, oppression, or an absurd consequence, the presumption being indulged that the leg
II. These errors are such as must needs accomplish a reversal of the judgment; and, since this is so, it is not thought necessary to go into any extended examination of this voluminous record, and of the many other errors which have also been assigned, because the errors already mentioned, being corrected on a new trial, will make such important changes in the presentation and aspect of the cause as will probably render any observations now made of but little worth. But passing to a few points which are deemed proper to be briefly considered before closing:
III. However it may be in other jurisdictions, in this state the wrongfulness of the arrest of the defendant, or the wrongfulness of his detention after arrest, cannot affect, or in anywise impair, the validity of the indictment afterward found against him. 1 Bishop Grim. Proc., sec. 239a. No constitutional-right of the defendant was invaded; he was proceeded against by indictment, in strict conformity to section 12, of our Bill of Eights, and the validity of that indictment could only be tested by proceedings immediately connected therewith, and not by unwarranted antecedent occurrences. The motion to quash was, therefore, properly overruled. This is enough to say on the point.
IV. This cause was tried below in peculiar circumstances, and under peculiar difficulties. The defendant was sworn, and testified through the medium of an interpreter. He was a stranger in a strange land. He was put on trial for his life before a court; “itsrecords were kept in unknown characters, its sentences were pro
The statute just quoted is an emphatic declaration of the common-law rule. Against the objection of the defendant’s counsel, the interpreter, Wong Chin Foo, was sworn in the ordinary way. They proposed to show, before he began his duties as interpreter, that the oath
Phillips says: “ But, although a witness may not be questioned as to his particular religious opinions, he may be asked whether he considers the form of administering the oath to be such as will be binding on his conscience. The most correct and proper time for asking a witness whether the form of administering the oath is such as. will be binding upon his conscience is previous to the administration of the oath. But it may occasionally happen that the oath is administered in the usual form, unobserved by the court or the counsel; the question, in such case, may properly be asked afterward.” 1 Phillips on Evid. [4 Ed.] 20.
Owing to the great importance to the defendant, in his peculiar situation, of having every formula of the law strictly adhered to, I am of opinion that a reasonable opportunity should have been afforded counsel to establish the position they had taken. And the. like opportunity ought to have been afforded them to show that the interpreter was incompetent, and that he was not impartial. It must be obvious that both these questions, the latter especially, are preliminary to an interpreter entering upon the discharge of his duties. The defendant was entitled to an interpreter at once capable and impartial; one who could and would be the medium and conduit of an accurate and colorless transmission of questions to, and answers from, the witnesses. All the precautions necessary to attain this end should have been
Y. But for the testimony of Cong Seng, the accomplice, the defendant could not have been convicted ; it was his testimony that fastened the crime upon him. Cong Seng, at about half past eight o’clock on the morning of the murder, was seen coming down the steps from Lou Johnson’s house, having in one hand a satchel, and in the' other a handkerchief up to his nose; there was blood on the handkerchief, blood on his fingers, and blood on the satchel. He turned, ran past the witness into the gangway leading into witness’ house, went to the hydrant, washed his face and hands, wiped off the satchel, and then disappeared, going into the rear of a saloon on Seventh street. He was afterwards arrested on the third day of June, two miles south of Murphrysborough, Illinois, having with him a satchel, which, when opened, contained two revolvers and a dirk knife. Taking off his pants, the constable who arrested him found blood on his drawers, and a cut on one finger tied up with a rag. Cong Seng told this witness that Lou Johnson, a cousin of his, in St. Louis, owed him some money; that they were sleeping together in the same room, when a quarrel arose between them concerning this money and his cousin was about to shoot him, upon which he stabbed and killed him with a knife in self-defence. , He also told the officer that the long pistol belonged to the man he killed. Similar testimony as to the blood on the drawers, the satchel and. its contents, the cut finger tied with a rag, was given by the marshal of Murphrysborough, John Fitzgerald, who also testified that, when they approached St. Louis, Daniel Me
The satchel and .large pistol were proved to have-been those of Lou Johnson ; in fact, Cong Seng admitted as much. These facts alone, aside from the testimony of Lena Lee, and aside from any confessions by Cong Seng, would have been amply sufficient to have convicted him of the crime charged. As to the defendant,, so far as the act of killing was concerned, he established,, by his own testimony as well as by that of Al Ngan- and Al Bun, a clear alibi. The good character of the-defendant was also established. The court, in regard to. the testimony of Cong Seng, gave this instruction:
“The court instructs the jury that the testimony of an accomplice in the crime, that is, a person who aids, assists, encourages, and abets in the committing of the crime, is admissible ; yet the evidence of an accomplice in the crime, when not corroborated by the testimony of some person, or persons, not implicated in the crime, as .to matters material to the issue, ought to be received with great caution by the jury, and they ought to be fully satisfied of its truth before they should convict the defendant on such testimony.”
Touching the testimony of an accomplice, Gfreenleaf observes: “The degree of credit which ought to be given to the testimony of an accomplice, is a matter exclusively within the province of the jury. It has sometimes been said, that they ought not to believe him, unless his testimony is corroborated by other evidence and, without doubt, great caution in weighing such testimony is dictated by prudence and good reason. But there is no such rule of law; it being expressly conceded that the jury may, if they please, act upon the evidence of the accomplice, without any confirmation of.'
In regard to these observations, Judge Henry, in State v. Jones, 64 Mo. 391, says: “It being the law, as Mr. Greenleaf in the above paragraph states, that one may be convicted of a'. felony on the uncorroborated testimony of an accomplice, makes it the more necessary that juries should be properly cautioned by the court in regard to such testimony.”
Relative to the extent of corroboration necessary in •order to convict, Greenleaf states: “But though it is thus the settled practice, in cases of felony, to require other evidence in corroboration of that of an accomplice, yet, in regard to the manner and extent of the corroboration to be required, learned judges are not perfectly agreed. Some have deemed it sufficient, if the witness is confirmed in any material part of the case; others have required confirmatory evidence as to the corpus delicti only; and others have thought it essential that there should be corroborating proof that the prisoner actually , participated in the offence; and that, when several prisoners are to be tried confirmation is to be required as to all of them, before all can be safely convicted ; the confirmation of the witness, as to the commission of the crime, being regarded as no confirmation •at all, as respects the prisoner. * * * If two or more accomplices are produced as witnesses, they are not deemed to corroborate each other; but the same rule is applied, and the same confirmation is required, as if there were but one.” 1 Greenl. Evid., sec. 381.
In Reg. v. Barter, 8 C. & P. 106, Lord Abinger, C. B., said: “ It is a practice which deserves all the rever
On one occasion, a case of great importance, when an accomplice, having sworn positively as to several prisoners, was confirmed as to some, but not as to others, Vaughan, B., advised the jury to acquit the latter; this was' done, but those as to whom the accomplice was confirmed were convicted and executed. Reg. v. Fild, Berks Spring Assizes, 1828. In another case, Alderson, B., said to the jury: “ You may legally convict on the testimony of an accomplice alone, if you can safely rely on his testimony; but I advise jurors never to convict, on the evidence of an accomplice, unless he be confirmed as to the particular person who is charged with the offence.” Reg. v. Wilkes, 7 C. & P. 272. Shortly after Gurney, B., said: “I think it would be highly dangerous to convict any person of such a crime (larceny) on the evidence of an accomplice, unconfirmed with respect to the person accused.” Reg. v. Dyke, 8 C. & P. 261.
After quoting from these cases, Wharton remarks: “In the United States, although we have occasionally expressions to the effect that, technically, an accomplice’s unsupported testimony will sustain a conviction, the rule is generally adopted, that, when a verdict is rendered exclusively on such testimony, it should be set aside by the court, and that it is the duty of the judge, on trial,
In the next succeeding section, the learned author, continuing the subject, says: “The corroboration requisite to validate the testimony of an alleged accomplice, should be as to the person of the accused. Any other corroboration would be delusive, since, if corroboration in matters not connecting the accused with the offence were enough, a party who, on the case against him, would have no hope of an escape, could, by his mere oath, transfer to another the conviction hanging over himself.” Thereupon, he quotes, with approval, from Roscoe’s Criminal Evidence [7 Ed.] 130, where that eminent text writer, after an able discussion of the authorities, and the reasons, says: “There may be many witnesses, therefore, who give testimony which agrees with that of the accomplice, but which, if it does not serve to identify the accused parties, is no corroboration of the accomplice ; the real danger being that the accomplice should relate the circumstances truly, and at the same time attribute a share in the transaction to an innocent person. It may, indeed, be taken, that it is almost the universal opinion that the testimony of the accomplice should be corroborated as to the person of the prisoner against whom he speaks.”
Supporting the same view of the law, another author of distinction says: “Again, notwithstanding some old cases to the contrary, it seems now settled that the corroboration should * * * go to some circumstances affecting the identity of the accused, as participating in the transaction.” Best Evid. [Chamberlayne] 171.
Tested by these authorities, the instruction under discussion cannot be held to fully meet legal requirements. It is faulty in at least two particulars : It fails to explain to the jury what is meant by the words,,
On the point of the admission of an accomplice to testify, Chitty aptly says: “ The law confesses its weakness by calling in the assistance of those by whom it has been broken. It offers a premium to treachery, and destroys the last virtue which clings to the degraded transgressor. Still, on the other hand, it tends to prevent any extensive agreement among atrocious criminals, makes them perpetually suspicious of each other, and prevents the hopelessness of mercy from rendering them desperate.” 1 Chitty Crim. Law, 769.
Whatever of probative force the testimony of an accomplice ordinarily ought to have, is greatly weakened by the testimony of Cong Seng, in this particular instance, by his numerous evasions, contradictions, and by the physical facts immediately attendant on the murder. If in any case a jury ought to be directed to acquit, except the testimony of the accomplice be corroborated, touching the guilt of the defendant on trial, this is a case where such direction should be given.
In passing by, sub silentio, numerous other errors assigned, we are not to be regarded as giving either
The judgment is reversed and the cause remanded.