195 P. 349 | Or. | 1921
Upon the trial Mrs. Etta C. Parrish, a witness for the state, testified on direct examination that she saw a man, who in height, build, and movement, resembled the defendant, shoot the deceased and then run around the corner. She did not positively identify the defendant. She did not see the face of the man who did the shooting. On cross-examination she was asked numerous questions tending to elicit testimony to show that most other Chinamen were of the size and build attributed by the witness to the man who did the killing. She was asked if it was not true that most Chinamen whom the witness had seen were of the size and build described by her, to which interrogatory she answered in the affirmative. Over the objection and exception of defendant, on redirect examination, after directing her attention to her former testimony, she was interrogated and answered as follows:
“Q. * * As bearing upon that phase of your testimony, I want to ask you if it is not the fact that you looked at a number of Chinamen together very recently and for the purpose of seeing if you could pick out of them the one who corresponded in size and build and you knew him?
“A. Yes, sir. * *
“Q. When and where was it you were exhibited a number of Chinamen together to see whether or not you could pick the one out of the number all together that corresponded in size and build and general appearance with the man who did the shooting?
2 Wharton’s Crim. Ev. (10 ed.), Section 939, page 1807, upholds the identification by a witness after arrest of accused, as the person whom he saw commit the crime. The text is based upon Yarbrough v. State, 105 Ala. 43 (16 South. 758, 10 Am. Crim. Rep. 57), and Beavers v. State, 103 Ala. 36, 38 (15 South. 616). In the latter case, which is similar to the one at bar, the identity of the defendant with the assassin was the matter in issue; his defense being an alleged alibi. After the witness, Crowder, had testified to the facts of the killing and the presence and flight of the man, whom he saw run from near the scene of the murder and his recognition of the defendant, as the man; he further testified, on interrogation by the state, that he saw the defendant the next morning after the killing, when he was in custody of the officers. Witness was then asked by the prosecution, “Did you recognize the man then under arrest, as the man who had done the assassination and run off the evening before?” Over the objection of the defendant the witness answered in the affirmative. It was held there was no error in this ruling.
The authorities are somewhat conflicting in regard to the identification of the accused from an inspection of the person. Mr. Wharton says that—
“The prevailing weight of authority favors the relevancy of testimony obtained either by bodily ex
It seems to us that the real objection to the testimony is as to its weight, and not to its competency, although the challenge is not in that form. The defendant was positively identified as the man who committed the crime by Tony Maravitch, witness on behalf of the state, who was in the automobile with Joseph Gue when he was shot. The defendant was positively identified by Fred E. Folds, witness for the state, who was an eye-witness of the killing, as the person who did the shooting. The witness Folds also identified the defendant after he was arrested and brought back to the scene of the crime. The testimony tended to show that after the shooting the perpetrator ran south on Second Street. Bay Blackmar, a witness for the state, testified that at the time of hearing the shots fired he was a short distance away in an automobile, and upon approaching the scene saw a man running on Second Street; that he followed the man in his automobile for some little distance, keeping in sight of him, and apprehended him and brought him back to the place where the shooting occurred and turned him over to an officer.
The counsel for defendant cites and relies upon the case of State v. Houghton, 43 Or. 125 (71 Pac. 982), where the witness, who was an officer, was erroneously permitted to testify that the prosecuting witness recognized defendant’s photograph at the police station, as a photograph of the person whom he claimed had committed the crime. The prosecuting witness, whose name was Balch, was not under, oath when he made the statement, the substance of which was detailed by the officer. There was subsequent testimony tending to show that defendant’s photograph was in the
Assignment of error No. 2 is predicated upon the testimony of J. D. Webster, a police officer, who was a witness for the state. He was asked if he knew the defendant, Wong Wen Teung, and when and where he had first seen him. He answered in effect that he knew him by sight, could not give the exact date when he first saw him, but it was about the middle of February at the city jail. This was without any objections or suggestion of incompetency on the part of defendant. The witness also stated that he saw the defendant the next morning after the killing, March 27th, when he was in custody, and that he had a conversation with bim on March 30, 1917, in the jail corridor, when Officer J. W. Moorelock was present. Upon the witness being requested to state to the jury what the conversation was, the witness was asked by counsel for defendant, “Did you warn him that as a defendant he had certain rights?” He answered, “No,” that he did not warn him at all, for the reason that he had no intention of discussing anything about the case. Objection was interposed by counsel for defendant, to the effect that the defendant being in custody gives rise to the presumption that he was speaking under duress and fear, and the testimony was “not competent unless he be shown to have been warned in making his statement of his rights and warned of the fact that the statement might be used against him.” Upon the objection being overruled defendant’s counsel duly saved an exception. Whereupon the witness stated in effect, that he asked defendant how long he
Defendant’s counsel moved the court “to instruct the jury to disregard any , of the testimony of the witness relative to any of the matters, other than those which refer to the location and movements of the defendant immediately prior to the twenty-seventh day of March.” The counsel for the state stated that nothing was claimed for the fact that the defendant was arrested at the time mentioned. The court stated to the jury: .
“We have the testimony of the witness to the effect that he was a recent arrival from San Francisco. I will instruct the jury that the fact he was in jail is not to be considered by them.”
It is claimed in defendant’s brief that it was error to admit the testimony in regard to the statements of defendant because “the questioning officer did not first make clear to the accused that Ms statements must be made voluntarily, and that when made they might be used against him at the trial.” The same question was before this court in State v. Wilder, 98 Or. 130 (193 Pac. 444), in which an opinion was rendered November 23, 1920. In that case it was. contended on behalf of the defendant that the admission of the testimony of the sheriff and his deputies re
“The fact that a confession is made without the accused having been cautioned that it may be used against him, does not render the evidence incompetent, unless there is a statute which invalidates a confession which is obtained when the accused is not so cautioned: 12 Cyc. 463. In this state we have no such statute, and it has been held by this court that a confession is not rendered inadmissible by the fact that accused had not been advised as to his legal rights: State v. Scott, 63 Or. 444 (128 Pac. 441); State v. McPherson, 70 Or. 371 (141 Pac. 1018).”
On cross-examination by counsel for the state, defendant was asked the question, “When did you come here from San Francisco?” Over the objection and exception of defendant’s counsel, that it was not proper cross-examination, he answered, “February 15, 1917.” He was also asked, “When you came here from San Francisco, what did you come up here for ? ’ ’ To this question the same objection was made and exception saved. He answered, “I go on Ong Hans’ Cannery, because in California I had drawn money to go to that cannery.” Over the objection and exception of counsel for defendant the following testimony was elicited on cross-examination:
“Q. Do you belong to the Hop Sing Tong?
“A. Yes, sir.
“A. About, almost two years.
“Q. You belonged to it down in San Francisco?
“A. Yes, sir.
“Q. When did you come here from San Francisco?
“A. February 15, 1917.
“Q. That is after the American calendar? That was after this Tong War started, when you came here, between the Hop Sing Tong and the Suey Sing Tong and the Bing Kong Tong?
“A. I don’t know which and which it was. At the time I only knew the Suey Sing and the Hop Sing. It does not relate to the Hop Sing. * *
“Q. Whereabouts is that cannery?
“A. I never been there. I don’t know where the cannery is. * *
“Q. You were still in Portland on the 27th of March, on the night of the shooting? You had not gone to the cannery yet ?
“A. No; the cannery people hadn’t begun yet, and I was working here.
“Q. Well, did you work all the time you were here?
“A. Yes. * *
‘ ‘ Q. When you came to Portland there were several men came’with you, were there not?'
“A. Yes.
“Q. Did any of the rest of them go down to that laundry?
“A. No.
“Q. You were the only one that went to that laundry out of that bunch that came with you ? •
“A. Yes, sir.
“Q. These boys that came with you, you knew all of them didn’t you?
“A. I didn’t know them, but they were down in California. I knew them on the train, that is all.
‘ ‘ Q. Seme of these boys who came on the train with you here are up in jail aren’t they?”
To the last question objection was made, as not proper cross-examination, which objection was sus
It is contended by counsel for defendant that the cross-examination did not pertain to facts to which the defendant had testified upon his direct examination, and that the same was not proper cross-examination. Section 1534, Or. L., provides that a defendant in a criminal action is a competent witness in his own behalf, when offering himself as a witness, he shall be deemed to have given the prosecution a right to cross-examine upon all facts to which he has testified tending to his conviction or acquittal.
In the case of State v. Bartmess, 33 Or. 110, 124 (54 Pac. 167, 171), Mr. Justice Moore, speaking for this court in regard to the scope of cross-examination, said:
“A fair construction of the statute in question leads us to conclude that defendant in a criminal action, having voluntarily testified in his own behalf, may be cross-examined in relation to all facts and matters germane to the testimony given by him on his examination in chief.”
In the case of State v. Miller, 43 Or. 325, at page 330 (74 Pac. 658, at page 659), Mr. Justice Wolverton uses the following language:
“The statute, however, is not to receive an unduly restricted or narrow construction, and the cross-examination must extend the inquiry to facts and matters manifestly germane and relevant to the facts testified to in chief, tending to their explanation and elucidation, and in this respect may be as searching and broad as the foundation upon which it rests.”
In State v. Lem Woon, 57 Or. 482, 490 (107 Pac. 974, 112 Pac. 427), which was a case in which many of
“Thus, even if the cross-examination does make him a witness against himself, it is not objectionable on account thereof, provided it relates to matters properly connected with his examination in chief. No error was committed in permitting this cross-examination. ’ ’
In California under a statute (Pen. Code, § 1323) providing that, when the accused offers “himself as a witness, he may be cross-examined by the counsel for the people as to all matters about which he was examined in chief,” it was held in the case of People v. Fong Ching, 78 Cal. 169 (20 Pac. 396), that testimony in chief by the accused as to his birth, parentage, education, and business, opened the door -wide enough to allow him to be asked on cross-examination whether he had ever been arrested before. In People v. Rozelle, 78 Cal. 84 (20 Pac. 36), under such statute it was
In the case of State v. Jensen, 70 Or. 156, 158 (140 Pac. 740), cited on behalf of defendant, the cross-examination related to a disconnected offense, which took place in Bellingham, Washington, involving trouble between defendant and a woman of that place. The case is not parallel with the one at bar. The same may be said of the case of State v. Saunders, 14 Or. 300 (12 Pac. 441), where this inquiry was made of defendant on cross-examination, “Did you not kill a man in Texas before coming here?” The defendant in the latter case was also interrogated in regard to his carrying a pistol, target practice, and being a center shot.
Finding no prejudicial error in the record* the judgment of the lower court is affirmed. Affirmed.