On January 18, 1955, the grand jury returned an indictment charging that Wey Him Pong, Marjorie Lovell Fong, alias Sherry Fong, and Kowng Ting Yee on the 6th day of January 1954 in Multnomah County, Oregon, “did then and there unlawfully and feloniously, purposely and of deliberate and premeditated malice, kill one Diane Hank by means unknown to the Grand Jury * *
The defendant, Sherry Fong (as she is referred to in the record), was granted a separate trial, was convicted of second degree murder, and has appealed.
The defendant’s Assignment of Error No. 4 challenges the court’s denial of her motion for a directed verdict based upon the alleged insufficiency of the evidence. For tibe proper consideration of this contention it will be necessary to make a full statement of the evidence.
At the time of the commission of the alleged crime the deceased, Diane Hank, a girl of the age of 16 years, was a close friend and frequent associate of Sherry Fong and her husband, Wey Him (usually called Wayne) Fong. Diane Hank spent the evening and night of Wednesday, January 6, 1954, at the Fong home in Portland, and, according to the state’s evidence, was never thereafter seen alive. Her dead body, markedly decomposed, was found on February 26, 1954, wrapped in two blankets and a sheet and
The defendant and Diane became acquainted sometime in 1951 when the defendant employed Diane as a baby sitter for the former’s child born out of wedlock. At that time Diane was living at home with her parents in the same neighborhood in Portland as Sherry Pong. Diane enjoyed good health. She was apparently happy notwithstanding that she had given birth to an illegitimate child at the age of 15. In the early part of 1954 she was attending Lincoln High school, and in addition had a part-time job as messenger for a law firm. She had recently taken up skiing, and the evidence indicates that she was intelligent, ambitious and enjoyed life.
The defendant was 23 years of age at the time of the alleged crime. She was married to Wayne Pong in November 1951. She is a white woman, her husband a Chinese. One child was born to this marriage. In 1953 the Pongs moved to a house on Barbur Boulevard in another part of the city from Diane’s home and Diane became a frequent visitor there, and at times served as a baby sitter for the two children. She and the defendant exchanged presents, and, as they were about of a size, both being quite tall, they sometimes wore each other’s clothes.
For a time after the marriage of Sherry and Wayne
On the afternoon of January 6, 1954, Diane phoned the defendant and asked her if she could bring out a shirt that she had bought for Wayne Pong as a belated Christmas gift, and Sherry invited her to come and stay to dinner. Later in the afternoon Diane phoned her mother and obtained permission from her to accept the invitation. The next day being a school day, she assured her mother that she would be home early. She arrived at the Pong home at about half past six, bringing with her two steaks which Sherry had asked her to buy. Wayne Pong was home when she got there. Before dinner Mr. and Mrs. Gene Smalley, friends of Diane, having learned from the latter’s mother that Diane was at the Pongs, dropped in to see her. According to Mrs. Smalley’s testimony, Diane drank two Martinis while they were there and was “acting silly.” She was wearing a brown jumper and tan sweater, and was in her stocking feet — perhaps was barefooted. The Smalleys left before dinner was served. There is evidence that Diane drank as many as five Martinis during the evening.
Another friend, Ann Incontro, learned from Mrs. Hank that Diane was at the Pongs and phoned her there. She testified that Diane’s “words were very blurrish” and that Diane said over the phone that “they were having a party, and that they were going to have dinner, and she said she was high.”
About 9:30 in the evening Diane phoned her mother that they had just finished dinner and that the defendant had given her some vitamin capsules, saying that Diane needed them. Mrs. Hank advised her to give them back, and Diane said that she would, though she added, “You know, it would be kind of hard; you
The defendant testified that the capsules she gave Diane were Rubramin, which is Vitamin B12, and Theragran M, which is also a vitamin, and that she put them in a little bottle and typed on a label, which she affixed to the bottle, the words “Diane: take one daily.” There is no claim that these vitamins are poisonous. About 10 minutes after eight o’clock on the morning of January 7 Mrs. Hank phoned the Fong residence and was told by the defendant, in answer to her inquiry as to why Diane had not called her, that Diane had taken the bus at about eight o’clock. The defendant testified that she and Diane went to bed about 11:30 p.m., that they occupied different rooms on the second floor of the house, and that before going to bed Diane had left her shoes in the defendant’s room; that they slept late, and on arising she got Diane’s shoes for her, and Diane refused her offer to drive her to school and said that she would take the bus; that the defendant consulted a bus schedule which she kept in the house and ascertained that there was a bus leaving at either three minutes to or three minutes after eight o’clock; that Diane refused her offer of fruit juice or coffee, went into the children’s room to kiss her daughter Catherine goodbye, said that she would use the bathroom downstairs, and walked downstairs to the first floor, and that was the last time the defendant saw her alive.
The defendant was questioned on cross-examina
When the dead body of Diane Hank was discovered it was clothed in a brown jumper, a tan cashmere sweater, a nylon slip, a brassiere, a pair of panties, and a panty girdle beneath the panties. They were the identical clothes she wore when she went to the Fong home on the evening of January 6, 1954. There were “some bobby pins in the hair, and the hair was up in curls, that is, curled to produce curls.” There were neither shoes nor stockings. Dr. Homer H. Harris, former director of the crime laboratory of the Oregon Medical School, who examined the body and afterwards performed an autopsy, testified that from the way the panty girdle was arranged it appeared that the person probably placed the garment on herself. The brassiere, however, was not in normal position; it was partially unfastened and slipped up over the breasts.
In a pocket of the jumper there was found a small plastic bottle about two-thirds full of capsules which were identified as Rubramin and Theragran M. Sometime in the course of the investigation of the case this bottle was lost, and secondary evidence respecing it was received. It bore a label of Riggs Pharmacy from which the defendant had purchased vitamins, and the following typewritten words: “Rubramin” and (on a line below) “Diane: take one daily.” A copy of the typewriting was made by an investigator for the district attorney on the typewriter used by Riggs Pharmacy; and another copy on the defendant’s typewriter,
Dr. Harris testified that on the inner surface of the blankets he found black hair, straight and coarse, which was determined under microscopic examination to be of the Mongoloid type, most commonly found on subjects of the yellow or red race. It could not have come from the head of the deceased, and was similar to samples of hair taken from the heads of the co-defendants, Wayne Pong and Kowng Ting Yee.
Dr. Harris further testified that on the outer blanket over the region of the knees, on the seat of the panties, and the back of the slip next the hem on the
A spot on the floor mat of the trunk of the Fong automobile was identified as blood by Dr. Harris, but he was unable to determine whether or not it was human blood. On January 11, 1954, the defendant had her car, including the trunk, washed.
Pio Reigo, a Filipino who at one time was employed by Wayne Fong, swore that the latter, in January 1954, talked to him about a dead body; told him the body was in the car, and “he tell me to come help him.” Later Fong told him to keep his mouth shut and threatened to kill him if he did not.
The mother of Diane Hank saw the defendant at the latter’s home on January 14, and on that occasion the defendant delivered to Mrs. Hank Diane’s scarf or bandana which she had worn as a head covering on January 6, and told Mrs. Hank that on that evening Diane had torn a pair of stockings and the defendant had given her a pair of her own. The evidence is that it was raining at about eight o’clock on the morning of January 7. If the defendant’s story is to be accepted, then the girl left the defendant’s house that morning in the rain without either head covering or umbrella.
Medical evidence respecting the cause of death was
It was testified that a barbiturate has a bitter taste, but that in the presence of alcohol the bitterness would be definitely disguised.
The other medical witnesses for the state corroborated the evidence of Dr. Harris. We mention especially the testimony of Dr. Beeman as he examined and tested some of the tissue taken from the body of Diane Hank by Dr. Harris. He explained that barbiturates are a synthetic chemical, and there are various kinds according as different chemicals are used. They are all sleeping tablets. Some of them, as, for example, nembutal, seconal and amytal, act quickly, and an overdose may cause death. In many cases of a fatal dose very little barbiturate is left in the body at the time of death because “When the drug has been
Since we are dealing with the question whether the evidence was sufficient to take the case to the jury it is unnecessary to state the medical evidence on behalf of the defendant in any detail. In the main, that evidence took issue with the state’s medical witnesses as to the reliability of the tests used by Dr. Harris and Dr. Beeman, or, more accurately, the tests which the defendant’s witnesses thought they had used, for the purpose of detecting barbiturates in decomposed tissue. Dr. William Lehman, a pathologist, expressed the following opinion:
“With the evidence presented in the autopsy and with the evidence obtained on toxicological examination, there is no proof that she died of barbital poisoning. She could not have died with those evidences from that material.”
There was no direct evidence that the defendant possessed any barbiturates at or about the time of the alleged crime. Since September 1953 she had been
On January 20, 1954, the defendant made herself acquainted with a married couple at a bar, had several drinks and dinner with them, and, during the course of the evening, told them, according to their testimony, that her life was “so fantastic, I even found a body in my basement,” or she may have said “there was a body in the basement,” and she told her auditors, when they asked for an explanation, “Oh, you will read it in the newspapers. It will all be in the newspapers.”
The defendant caused to be published in The Oregonian of January 26, 1954, an advertisement reading as follows: “DIANE — Please contact me. Regardless
On February 27, 1954, the day before the discovery of the body of Diane Hank, the defendant told a companion that she was afraid she would be arrested for murder.
As stated at the outset, it is the theory of the prosecution that the defendant murdered the deceased “to silence her as a witness,” by which we understand is meant that the defendant feared that Diane Hank would disclose to the police whatever information she may have had about the Fongs’ illegal trafficking in narcotics, and to prevent this they decided to put her away. We will now state the evidence relating to that subject, together with other evidence of statements of an incriminatory character made by the defendant, not all of which, however, bear upon the alleged motive.
Several girl friends of Diane’s testified to statements made by her concerning the illegal activities of the Fongs as follows: that she had gotten marijuana in the Fong’s home and that they had imported “dope”; that there were narcotics in the Fong home; that Wayne Fong had a gambling establishment and she thought he was involved in narcotics or a dope ring of some sort; that Sherry smoked marijuana.
The witness Richards, a bartender and ex-pugilist, was employed by the Portland city police in March 1954 as an undercover man in the investigation of this case. The defendant frequented a restaurant in Portland called Davey’s Locker, where Richards worked. Richards made her acquaintance and gained her confidence, which, judging from this and other incidents disclosed by the record, was not a very difficult thing to do. According to Richards, the defendant told him that she and her husband were head importers of
Some 66 pages of the transcript of testimony are
The substance of additional testimony given by law enforcement officers concerning these individuals follows : Jimmy Valentine, Honey Latourell, Harry Lee and Korf are narcotic addicts. Harry Lee was arrested in July 1949 for possession of opium, and Wayne Fong came to see him in the United States marshall’s office. In 1952 a state policeman, making a narcotics investigation at Madras, knew or saw in Lee’s cafe at various times the defendant, Wayne Fong, Little Joe and Harry Lee. The last named worked in the restaurant as cook. Eddie Lee was arrested in August 1952, and at the time of the trial was a prisoner in McNeil Island penitentiary for the possession of opium. On several occasions an officer observed suspicious conduct on the part of Eddie Lee and Wayne
In some instances, details of the arrests and the transactions leading up to them were related by the witnesses, much as though the trial was a prosecution for conspiracy to violate the Harrison Anti-Narcotics Law. A graphic description of Honey Latourell administering a “shot in the arm” to Jimmy Valentine in the year 1950 was permitted to be given. A witness was permitted to describe at length and in detail the revolting “withdrawal symptoms,” as they are termed, of a narcotic addict manifested by Honey Latourell when she was in the Portland city jail in 1953. Photographs of all the persons named were received in evidence, all of them except Wayne Fong’s having been taken in prison and bearing prisoners’ numbers. These photographs, except those of Wayne Fong and Kowng
Nine different grounds are specified in the motion for a directed verdict and are repeated in the brief. Some of these, such, for example, as alleged misconduct of the prosecuting attorney, are irrelevant to the question arising upon such a motion. The remainder are summed up in the claim that the state failed to prove the corpus delicti and the defendant’s connection with the alleged crime. In this ease proof of the corpus delicti means proof that Diane Hank was dead and that her death resulted, not from accident or natural causes, but from a criminal agency other than suicide.
State v. Henderson,
In our opinion, the fact that the dead body of Diane Hank was found wrapped in blankets, tied up with rope, on a lonely hillside in the state of Washington ; the evidence that she died of poison; and the circumstances such as her high spirits and apparent zest for life, which repel an inference of suicide, constitute the basis for a finding by the jury that the girl’s death was brought about by the criminal act of someone.
Paulson v. State,
118 Wis 89, 95-96,
We are satisfied also that the evidence presents a question for the jury as to the defendant’s connection with the alleged crime. Since, for reasons presently to be given, the judgment must be reversed' and a new trial awarded, we do not wish to be understood as ex
The argument on behalf of the defendant is directed first to a discussion of the weight of the evidence and conflicts between the evidence for the state and that for the defendant, matters which we are not permitted to consider. Art. VII, § 3, Constitution of Oregon. It is said next that “ ‘proof of crime by admission alone, however obtained’ is not admissible,” citing
State v. McPhee,
(Me)
One fact may give rise to a single in- * *ference, or it may give rise to several inferences, or a logical conclusion may be drawn from a multitude of detached circumstances so related to each other and to the fact to be proved that it would be illogical to assume that they could all exist coincidentally and the fact in dispute be nonexistent.”
The evidence is not speculative but presented a question for the determination of the jury, and there was no error in the denial of the motion for a directed verdict.
In our discussion of the motion for a directed verdict we have omitted all reference to the evidence regarding the alleged narcotic dealings of the defendant and others and its bearing on the question of the motive for the crime. Admission of this evidence was repeatedly objected to and is assigned as error. The assignment does not include the declarations of the defendant to Richards concerning the “syndicate” which imported opium and its desire to get rid of Diane Hank. We think that this constituted some evidence — the weight and effect of which was for the jury — of the motive. The defendant’s statement to Richards that the syndicate desired Diane’s death because she was talking too much, and that she, the defendant, wanted to save her may readily be inferred, as the court said in
State v.
Epes, 209 SC 246, 261,
But the lengths to which the state was permitted to go in the introduction of evidence relating to the alleged narcotic ring is quite another matter. The argument most pressed upon us by counsel for the defendant is that this evidence served no other purpose than to prejudice the minds of the jury against the defendant, that it amounted to an attack on her character when her character was not in issue. The state answers, that, as the existence of the ring was an essential fact in connection with the motive, it was properly allowed to go fully into that subject.
The rule is well established and not questioned that evidence of other crimes committed by the defendant is not admissible unless it is relevant upon some issue in the case.
State v. Reyes,
In the consideration of this question it must be constantly kept in mind that it is the defendant, Sherry Fong, who was on trial, not her husband, Wayne Fong, nor any of the rest of the motley assortment of characters whose misdeeds and crimes were paraded before the jury. In no conceivable aspect of the case could Wayne Fong’s violation of anti-narcotic laws in 1947 and 1948, more than four years before the defendant knew him, be held to be relevant or material. Equally plain is it that the evidence of the police raid of Fong’s Club in January 1955 and the arrest of Harry Korf in July 1955 for possession of nembutal, both a year or more after the death of Diane Hank, could throw no light on the charge of murder against Sherry Fong. Consider the evidence about Honey Latourell’s withdrawal symptoms and Jimmy Valentine’s submission to an injection of morphine by Honey Latourell (the latter in 1950). What possible effect could it have other than to create an atmosphere of hostility to the defendant and prevent a fair consideration of the charge against her?
The state argues that extensive proof of motive was permissible, and cites numerous cases to the following proposition quoted from
Miller v. State,
130 Ala 1, 16, 30 So 379: “The existence of this motive depends upon the inquiry whether the defendants committed the other offenses, and of course proof that they did commit them must needs involve evidence as to the particulars of those offenses, evidence of the several acts which enter into and constitute them.” This is a correct statement of the law, and it has been many times applied by this court, most recently in
State v. Reyes,
supra! We have read all the cases cited by the state on
There is no evidence that the defendant committed or had any connection with any of the offenses of third persons to which the witnesses testified. She certainly had nothing to do with Wayne Fong’s law violations in 1947 and 1948, or Harry Lee’s arrest for possession of prepared smoking opium in 1949, or with Wayne Fong’s visit to Harry Lee at that time while he was in custody. What of the others
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Eddie Lee was arrested in August 1952. So far as the record shows the defendant did not know him. A police officer saw Eddie Lee and Wayne Fong on a street corner engaged in conversation about a year later. Jack M. Merrill, federal narcotics agent, testified that on four or five occasions (he did not say when) he had seen Eddie Lee in a restaurant and approximately two or three minutes later saw Wayne Fong enter the restaurant. The witness said “that is as close as I could put the two together,” and that is as close as the evidence comes to connecting Eddie Lee’s law violation with the defendant. The evidence does not disclose when Wayne Fong paid the attorney’s fee for Wei Ching Lee (Little Joe) nor the nature of the case in which the services were rendered. Little Joe was “at the restaurant” in Madras, and the defendant may have known him. The remaining testimony with reference to him came from a policeman who said that he and his partner had Wayne Fong under surveillance one night in the early winter of 1952 and saw him double park his car in front of the Broadway Hotel. They knew that Little Joe was living in the hotel. Wayne Fong got out of the driver’s side of the car, entered the hotel, was there about a minute, came out and got into the car on the driver’s
Just what the relevancy of the evidence last recited is supposed to he we are unahle to say. It may, of course, along with the other evidence on this subject, excite suspicion and lead to speculation as to whether Wayne Fong or “the syndicate” (whoever they may have been) was master-minding the narcotic transactions that were proved. But there is nothing substantial to justify such a finding, and it is not permitted to indulge in conjecture when life or liberty is at stake. In our opinion, when the prosecution claims that the motive for homicide is to silence the victim as a witness to crime, the admission of evidence of crimes committed by third parties for which the accused is not shown to he responsible or even to have any knowledge of, is prejudicial error and ground for reversal.
Motive is never a necessary element of proof
(State v. Humphrey,
The transcript of testimony in this case comprises 1476 pages and 184 exhibits were introduced. The trial commenced November 15, 1955, and was concluded on December 6, nearly three weeks later. It was a bitterly contested case in which a great deal of time was wasted in heated exchanges between the court and the prosecuting attorney and lengthy explanations by the court of its rulings. The record is replete with charges of misconduct against the prosecutor and motions for a mistrial made by defense counsel, and much of the defendant’s brief is devoted to this subject. While what we have already said is enough to dispose of the appeal, nevertheless we deem it our duty to notice an assignment of error based on alleged misconduct of the prosecuting attorney. We do not wish to seem by silence to minimize the gravity of the incident and the rulings of the court which precipitated it.
Two witnesses were called by the defense to prove that Diane Hank was alive after January 6, 1954. They were young ladies who were in high school at the same time as the deceased. One of them, Carol Thompson, had never spoken to Diane Hank; the other, Sally Joann Irwin, was slightly acquainted with her. Carol Thompson testified that she saw Diane Hank on January 7, 1954, between 5 and 5:30 p.m. at Sixth and Yamhill streets in Portland as she was crossing the street. She said they did not catch each other’s glance as Diane was looking in the opposite direction. Sally
The court, to use the court’s words, “made its own investigation” and called and examined the five witnesses hereinafter named “in behalf of the court.” Claudia Lee Dudley and Joyce Louise Larvik testified that Sally Joann Irwin had told them that she had seen Diane Hank in Meier & Frank’s store. Howard Terrell Lowery and William Howard Beavert testified that Miss Irwin was not unstable and was a person who would not give sensational testimony for the sake of notoriety. Lois Findlay Grierson gave testimony of the same tenor with reference to Miss Thompson. The prosecutor objected to this evidence and the court threatened to hold him in contempt.
At the conclusion of the cross-examination of Miss Thompson the court interrupted and had her identify two written statements which she had given to the district attorney, and the production of which had been called for by the court. Both were dated March 11, 1955, and related to her claim that she saw Diane Hank on January 7,1954. The court caused these statements to be introduced in evidence over the objection of the state that they were “hearsay of a double-distilled sort,” which they were. The court then charged the district attorney’s office with suppressing evidence, and the prosecutor countered with the following:
“MR. LONERGAN: Good, I have another one. Here is another one, a confession of Sherry Fong to this witness, substantiated by money paid by Sherry Fong. Put that in evidence, too, as long as you are talking about suppressing evidence. Wedon’t bring anyone np here that isn’t substantiated fully. These witnesses have not been substantiated fully.”
The words, “another one,” refer to an unsworn statement written out in ink and signed “Mrs. Eleanor Lamphier.” It purported to recite incriminating statements regarding the death of Diane Hank made by the defendant to Mrs. Lamphier when they were both prisoners in Bocky Butte jail. The prosecutor exhibited the statement in front of the jury and called upon the court to introduce it in evidence. This the court refused to do. The statement was, however, “impounded” by the court and sent to this court by the judge with a personal letter to the clerk as a part of the record.
The incident culminated in the court holding Mr. Lonergan in contempt, but deferring the imposition of punishment.
Whether it is ever proper for the court in a criminal case to make its own investigation and call its own witnesses, we need not now determine. It is assuredly most unusual, if not unprecedented, under the judicial system of this state. Substantial support has been found for the proposal that in a civil case, on questions which call for the opinions of experts, the court should be permitted to call its own witnesses because of what is said to be the tendency of expert witnesses to shape their opinions to suit the purposes of the party who calls them. See American Law Institute, Model Code of Evidence, Buie 403. Such witnesses have been referred to as “expert advocates.” Idem, p. 34. In one case, a suit in equity, this court held that “it is within the sound discretion of the trial court to call, on its own motion or otherwise, expert witnesses who may be able to shed light, on the controversy.”
State v. Beaver Portland Cement Co.,
Apart from this, it is certain that a circuit judge is bound by the rules of evidence equally with the litigants, and this court cannot sanction the introduction of evidence intended to show that a witness whose character has not been impeached is worthy of belief (OES 45.620), nor of hearsay evidence that a witness has said the same thing out of court to which he testifies on the trial, even though it be the trial judge at whose instance such evidence is introduced.
Furthermore, the court was wrong in introducing in evidence the extra-judicial statement of the witness Carol Thompson, and was not justified in charging the district attorney’s office with the suppression of evidence. A prosecutor is under no duty to call as a witness everyone who claims to have knowledge of the facts of a criminal case. He is entitled to use a sound judgment as to whether such persons are telling the truth or really have seen or heard what they honestly think they have seen or heard. No better illustration can be given than the Webster case to which we have heretofore referred. That also was a case where the victim of an alleged murder disappeared and a number of witnesses for the defense testified to having seen him after the time, when according to the Commonwealth’s evidence, he was killed, his body dismembered and concealed. Chief Justice Shaw took occasion to caution the
“In the first place, there is the uncertainty, when the observation was hasty and casual, whether, without supposing any intention to mislead, the witness was not mistaken in the person. The other is, that the whole efficiency of the proof depends upon the accuracy of the witness as to the time and place at which the person was seen.” Bemis Report, p 478.
In this case the observations of Sally Joann Irwin and Carol Thompson were hasty and casual and the witnesses could easily have been mistaken as to the time. The district attorney makes no claim that they testified falsely; but merely that they were mistaken.
The case of
State v. Barrett,
But, though the prosecutor acted under severe provocation and in the face of an unwarranted charge reflecting on his honor and integrity as an officer of the court, his conduct in stating in the hearing of the jury that he had a confession of the defendant in his hand, and demanding that the court introduce it in evidence, is not for that reason to be condoned nor any the less prejudicial in its consequences. The writing was not a confession at all, and, even though it had
It is unnecessary further to characterize the incident. The trial judge himself the next day expressed the opinion that he probably should have granted a mistrial. We think that failure to do so was reversible error.
The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.