People v. Foon

The defendant was convicted in the superior court of San Joaquin County of the crime of murder of the first degree, the jury fixing the penalty at imprisonment for life. (Pen. Code, sec. 190.)

This appeal is prosecuted by the defencjjant from the judgment and the order ‘denying him a new trial.

The homicide occurred in the Chinese quarters of the city of Stockton, on the seventh day of March, 1915, and the party killed was an aged Chinese by the name of Tip Suey.

There is testimony showing that the shooting resulting in the killing of Tip Suey took place a short time after the noon hour of the day mentioned; that it was witnessed by several white-men and a number of Chinese; that two Chinamen, the defendant and another, the latter not having been captured, simultaneously shot into the body of the deceased, one of the Chinamen so shooting being approximately on the right and the other likewise on the left side of their victim; that, after the shooting, both the Chinese engaged in the shooting ran from the scene thereof, the defendant going in a southerly direction and throwing the pistol with which he did the shooting on the sidewalk or street as he ran, and the other going rapidly in the opposite direction; that the defendant was pursued and ran into a building into which he was followed by some citizens and was finally apprehended near a chicken-house in the rear of the building into which he fled and which was occupied by Chinese; that, when arrested, he was freely perspiring and bore the appearance of being nervous; that, shortly thereafter, the assistant district attorney brought the

The defendant at the trial claimed that he had nothing to do with the shooting, was not present at the scene of the homicide when it occurred, and, therefore, sought to establish an alibi.

It is not claimed on these appeals that the verdict is not sufficiently supported by the evidence, but it is contended that alleged errors in the rulings upon the evidence and in the action of the court in giving and in refusing to give certain instructions so seriously militated against the substantial rights of the accused at the trial as to compel a reversal of the judgment and the order. It is further insisted that the court should have granted a new trial on the ground of newly discovered evidence, and that its refusal so to consider and determine the effect of the showing made in that particular constituted an abuse of its discretion and, therefore, prejudicial error.

The assignments involving attacks upon the action of the court with respect to certain instructions are numerous, and some of them merit and will receive special notice.

1. The first point under this head is directed against an instruction in which the trial court described to the jury the two classes of evidence—direct and circumstantial—which are permissible in courts of justice for the proof of a disputed fact, and upon either of which, in a criminal case, a verdict of conviction may be predicated, if it measures up to the requirement of the rule in that class of cases that guilt must be established to a moral certainty and beyond a reasonable doubt. The particular part of said instruction to which the strictures of the defendant are confined is as follows: “There is nothing in the nature of circumstantial evidence that renders it any less reliable than other classes of evidence ; a man may as well swear falsely to an absolute knowledge of the facts as to a number of facts, if true, the fact on

Instructions explaining to juries in criminal cases the distinction between direct and circumstantial evidence have often been given in substantially the same language as the one challenged here and have as often been approved by reviewing courts. (People v. Morrow, 60 Cal. 142 , 144; People v. Wilder, 134 Cal. 182 , 184, [ 66 Pac. 228 ]; People v. Simmons, 7 Cal. App. 559 , 565, 566, [ 95 Pac. 48 ].) And such an instruction may with propriety be given in all appropriate cases, for there is a distinction between those two classes of evidence—an inherent distinction which is expressly recognized and explained by our laws (secs. 1828, 1831, and 1832, Code Civ. Proc.)—which should be explained to juries with the further explanation that the degree of proof essential to a conviction is in no sense or measure influenced by such distinction. The common notion with respect to the proofs in criminal cases is that a stronger ease should be made before a conviction is justified where, for a conviction, sole reliance is placed upon evidence of purely a circumstantial character. This is, of course, an erroneous notion, the true rule being that the degree of proof necessary to a conviction is precisely the same whether the proof relied upon for a conviction be direct or circumstantial. In other words, whatever may be the character of the evidence, whether it be the direct testimony of an eye-witness to the fact in dispute or evidence of circumstances from which the existence of the fact in dispute may be inferred, it being relevant and competent, a conviction will be justified and sustained if the guilt of the accused is shown to a moral certainty and beyond a reasonable doubt, and, as stated, it is with eminent propriety that the jury should be enlightened upon these important matters.

While the language above quoted from the instruction in question here, as it appears in the record, is lacking in that clearness of expression which should always characterize instructions to juries, and, indeed, is not strictly grammatical, because of the omission to have inserted in the part quoted

2. The following instruction was proposed by the defendant, but disallowed by the court: “ . . . If you believe from the evidence in this case that the person who fired the shots v'hich caused the death of Yip Suey was a man taller and heavier than this defendant, notwithstanding that certain witness or witnesses may testify that the person who fired such shots was said defendant, nevertheless, there would exist such a conflict as to the identity of the person who fired such shots as to raise a reasonable doubt as to whether or not it was the defendant, then it is your duty to acquit this defendant.”

The instruction was properly refused. Paraphrased, and thus reduced to its actual meaning, it merely states to the jury the very obvious proposition that if they should believe from the evidence that some other person than the defendant shot and killed Yip Suey, the accused would be entitled to an acquittal, and, of course, in that case he would be, and his acquittal obviously the result of a total failure to establish guilt beyond a reasonable doubt or at all and necessarily the complete repudiation of contrary proof, and not upon the proposition that a reasonable doubt existed by reason of a conflict between the evidence convincing them that some other person did the shooting and the testimony involving an expression of the opinion of certain witnesses that the defendant was the guilty party. Perhaps, however, the real purpose of the instruction was to state that a conflict as to the defendant’s guilt arose in the evidence by reason of the positive statements of certain witnesses that a man not fitting his description did the shooting, and testimony showing the expression of the belief by other witnesses who claimed to have seen the trouble that the defendant was one of the men who shot the deceased, and that the conflict so arising in the proofs was sufficient to create a reasonable doubt of the defendant’s guilt. But, assuming that to have been the proposition so sought to be stated, the instruction would still be vulnerable and wholly improper, since clearly it would involve a

3. The instruction requested by the defendant but rejected by the court, upon the question of the alibi interposed by the defendant, was fully covered by an instruction which constituted a part of the court’s general charge. Instructions upon particular propositions are not required to be repeated, and for this reason the court was justified in disallowing the instruction in question.

4. The defendant proposed an instruction which would have told the jury that if, after considering all the evidence, “a single juror has a reasonable doubt of the defendant’s guilt, arising out of any part of the evidence, then they cannot convict him.” The court rejected said instruction, and 'it is here claimed that it was prejudicial error to do so. The court properly disallowed the instruction upon the ground, as assigned by it, that the proposition therein stated was covered by the charge. The charge was, of course, addressed to all the jurors, and therein it was declared that if the jury entertained a reasonable doubt of the defendant’s guilt or “upon a single fact or element necessary to constitute the crime, it is your duty to give the defendant the benefit of such doubt and acquit him.” We must assume that from that language the jury must have understood that if, after a consideration of the evidence, any one of them entertained a reasonable doubt of the defendant’s guilt or upon any element or fact the proof of which was essential to a conviction, it would be his duty not to agree to a verdict of guilty, and to adhere to his conviction so long as he remained in that state of mind. We are not authorized to assume that a juror who entertains a reasonable doubt of the guilt of a person charged with a criminal offense- will yield his views merely because a majority of the jurors or all but himself have agreed upon the guilt of the accused. Such an assumption would involve an imputation against the intelligence of the average person competent under the law to serve in- that important capacity which is not warranted, and such would necessarily be the assumption if we were required to hold that the jurors in this case did not understand from the court’s general charge that a concurrence of all was requisite'

5. The defendant requested the court to submit to the jury an instruction in which it was declared that dying declarations should be received with caution, and that, unless it appeared that the declaration made by the deceased just prior to his death accusing the defendant of having fired the fatal shots, and which declaration was admitted in evidence, was made “under a clear opinion of impending death, you cannot consider such declaration as evidence in this case; and the court cautions you . . . not to give as much weight to such evidence as if the same statement had been testified to in health and subject to cross-examination.” The instruction further stated that if the jury believed that the. deceased “had no fear of God” and “had no conception of life after death wherein he would receive punishment for failure to tell the truth,” then his alleged dying declaration should be disregarded, “for the reason that there was no compelling cause to tell the truth in the hour of his impending death.” The court refused to adopt the instruction on the ground that there was “no evidence upon which to base part of the instruction—proper portion covered by instruction elsewhere given. ’ ’

Another of the instructions proposed by the defendant bearing upon the dying declaration stated that, if the jury found that Yip Suey was actuated, in making said declaration, “by the desire to wreak vengeance upon some person whom he might believe was a member of a society or a relative of a member of such society which was an enemy 'of a society to which said Yip Suey belonged . . . ,” it would then be their duty wholly to disregard and place no reliance upon such declaration. The court disallowed said instruction on the ground that there was no evidence to which it was pertinent.

The court committed no error by thus disposing of the proposed instructions. An instruction was embodied in the court’s charge which admonished the jury to receive with caution the evidence of the dying declaration, “for the reason that the declarant had not been administered an oath, and an opportunity for cross-examination has not been afforded

The instruction given, as will be observed, fully covered the portion of the rejected instruction cautioning the jury, for reasons therein stated, to scrutinize the dying declaration with more than the usual care with which ordinary testimony is received and considered. There was no testimony justifying the implication contained in the rejected instruction that the deceased, in accusing the defendant of having fired the shots into his body, was actuated by “the desire to wreak vengeance upon some person whom he might believe was a member of a society or a relative of a member of such society which was an enemy of the society or tong to which said Tip Suey belonged.” Nor was there any testimony from which it may be determined what the declarant’s belief was as to a “hereafter,”-or whether he believed or did not believe that he would, were he to falsely accuse another, subject his soul to punishment after his immortal self had been separated from the flesh. And our law does not require that such fact should be shown to render the declarant’s statement admissible. If it is made to appear, as it was made to appear here, that the declaration was made by a dying person under a sense of impending death, and that such declaration related to the cause of his death, then it is sufficient. (Code Civ. Proc., sec. 1870, subd. 4.) Undoubtedly, if it were made to appear that the declarant was wholly obtuse to religious convictions and that he entertained complete disbelief in a future spiritual existence or had no regard whatsoever for the theory of rewards and punishments in the hereafter, his statement in extremis would not be supported by those considerations which may naturally be supposed to exercise an overruling influence upon the minds of men in such circumstances, and in such case, even if, nevertheless, the competency of the declaration as evidence would not be destroyed, the credibility of it would be greatly impaired, and when given under such circumstances it should never be submitted to a jury unaccompanied by an explicit admonition by the court that it should be viewed with great caution. In this case, however, no less than in any other, it is

The refusal to allow some other instructions proposed by the defendant is criticised, but said instructions involved, substantially, a repetition of the statement of principles contained in the rejected instructions which we have above noticed, and it is, therefore, unnecessary to give them special attention herein. In concluding on this branch of the case, we may observe that the court’s charge to the jury, as a whole, covered every pertinent point or issue developed in the case correctly and in clear language, and that in this regard, as in all others, the court’s conduct of the trial was notably characterized by fairness and impartiality.

6. The witness Corbett, testifying for the people, said that he was near the scene of the shooting when it occurred, and that the defendant, in fleeing therefrom after the firing had ceased, ran north on Hunter Street and entered a house north of the house in which the defendant was found. On cross-examination, after subjecting the witness to extended questioning as to the direction in which the defendant fled from the scene of the shooting, he was asked: “Well, about how many feet were you from him [defendant] when he was running toward you, when you got over here?” The court thereupon interrupted, addressing the attorney: “Mr. Blewett, you have gone over that now several times.” Mr. Blewett retorted: “Well, this is very important.” The Court: “I know, but you can’t go over it and over it, repeat every question. You had him say he was about five feet from the

It is now claimed that the action of the court in thus limiting the defendant’s right to fully cross-examine the witness upon the lines then being pursued constituted prejudicial error, particularly in view of the fact that the testimony of said witness was of singularly vital importance, he having testified that he witnessed the tragedy and identified the defendant as one of the assailants. It is argued that, if permitted to proceed with his cross-examination upon the lines upon which he was questioning the witness when interrupted by the court and further cross-examination upon those lines curtailed, the attorney for the accused would have probably succeeded in making the witness definitely and unqualifiedly say that the defendant, upon the cessation of the shooting, ran in a northerly direction from the scene thereof, and that thus the verity of his statement that he witnessed the shooting would have been greatly impaired, if, indeed, his testimony in that regard not altogether impeached, inasmuch as the defendant was found, shortly after the shooting, in the rear of a building south of the point where the shooting took place.

As has been shown, the question asked by the attorney when the court made the order or ruling complained of was: “Well, about how many feet were you from him when he was running toward you, when you got over here?” Precisely the same question had several times been previously propounded to the witness by the defendant’s attorney and as many times answered. At page 226 of the transcript, on cross-examination, it will be found that Corbett stated that the defendant, in his flight, had passed “close” by where the witness was standing; at page 228, it will be seen that the witness, on cross-examination, testified that the defendant passed him or where he was standing at a distance of about five feet; at page 229, it will be observed that the same question was put to the witness and that he replied that the accused passed him at about a distance of five feet from where he (witness) was standing. At page 231 of the transcript will be found the question which is responsible for the present discussion.

7. One of the grounds upon which the defendant pressed his motion for a new trial was that of newly discovered evi

The defendant, in support of his alibi, attempted to show that, at the time of the shooting, he was in the store of the Quong On Chung Company, at 138 Washington Street, and he testified that he was at said store and therein was corroborated by a number of other witnesses, among whom was one Lem Yeong. In rebuttal, the people called to the stand two Chinese, Hong Lun and Lee Loy, who claimed to have been in the store of the Quong On Chung Company at the time of the shooting, and who testified that neither the defendant nor his witness, Lem Yeong, was in said store at said time. Four of the affidavits filed by the defendant in support of his motion for a new trial on the ground mentioned were made by as many different Chinese, who therein deposed that, when the shooting occurred, Hong Lun was not a farmer, as he had testified", but was a gambler, and that when the shooting occurred he was in a gambling-house at 131-133 East Washington Street, which is located at some distance from the store above named. Two of the affidavits so filed were by two Chinese who therein declared that they were in a rooming-house above the store of the Quong On Chung Company, that they heard the shooting and that at that time Lee Loy was with them in a room in said rooming-house. Two other Chinese made affidavits, which were among those filed, in which they deposed that they saw Lee Loy, immediately after the shooting, come out of the rooming-house above mentioned.- . Mr. Blewett, attorney for the defendant, made and filed an affidavit in which, after showing the relevancy and alleging the importance of the testimony of the several Chinese affiants, he declared that he had no knowledge of the existence of the evidence to which the affidavits related at the time of the trial, and that he “could not by the use of reasonable diligence have discovered and produced the same upon the former trial.”

It is plainly manifest that the effect of the evidence claimed to be “newly discovered” and referred to in the affidavits would merely be to impeach the statements of Hong Lun and Lee Loy that the defendant was not in the Quong On Chung Company store when Yip Suey was shot.

“A motion for a new trial upon the ground of newly discovered evidence has always been regarded by the courts with

We conclude that there was no error or abuse of discretion in the action of the court refusing to grant the defendant a new trial upon the ground of newly discovered evidence.

No substantial error appearing in the record, the judgment and the order appealed from must be affirmed, and it is so ordered.

Chipman, P. J., and Burnett, J., concurred.