People v. Fong Sing

The defendant and two other Chinese, Charlie Sney and Sam Hie, were jointly charged by information filed in the superior court of San Joaquin County with the crime of murder in the alleged willful, deliberate, and malicious killing of a fellow-countryman named Ching Sing. The defendant was given a separate trial and the jury convicted him of murder of the first degree, fixing his punishment, however, at imprisonment for life. He has brought the case to this court on appeals from the judgment and the order denying him a new trial.

The homicide occurred in the city of Stockton, in the county above named, on the fifth day of March, 1917, between the hours of 1 and 2 o’clock P. M. There is no claim that the evidence is insufficient to support the verdict, but it is vigorously insisted that prejudicial error was committed by the trial court in certain of its rulings whereby certain evidence offered by the defendant was excluded from the record,' that the district attorney and the attorney specially employed

The killing of the deceased, by whomsoever done, involved a deliberate and malignant murder. He was either standing on the sidewalk in front of a building situated on one of the streets of what is known as “Chinatown,” in the city of Stockton, or had just stepped to the sidewalk from a building, when he was viciously attacked by several young Chinese (some of the witnesses said three and others thought there were four) and shot to death. The attacking Chinese fired upon the deceased simultaneously, thus disclosing a preconcerted arrangement to kill him, and after he fell to the sidewalk, probably lifeless, the murderers, or some of them, stepped up to where he lay and fired several shots into his body. The physician who held the autopsy at the postmortem examination testified that he found in the body twenty-three wounds, of which thirteen were entrance wounds.

After the shooting ceased, the Chinese committing the crime ran from the scene of the shooting, at least two of them throwing the weapons with which they shot the deceased to the sidewalk near where the homicide occurred and where they were a few minutes after the shooting found and picked up by an officer. The homicide was witnessed by several Chinese and partly seen by some white men. Several of the witnesses, both Chinese and white, positively identified Pong Sing, the defendant, as one-of the Chinese who did the shooting.

A short time after the tragedy, Pong Sing and Charlie Suey were apprehended and placed under arrest several blocks from the place at which the deceased was killed. It appears that J. E. McFarland, a constable of Stockton, heard the shooting and thereupon hastened to the street from which direction the sound of the shooting seemed to him to come. On reaching the northeast corner of Washington and Center Streets, he looked east or in the direction of the corner of Washington and El Dorado Streets, and there observed a

The defendant claimed that he was not present at the scene of the homicide at the time of the commission thereof, but that when the shooting took place he and Charlie Suey were at the lumber-yard of the Stockton Lumber Company, located on the corner of Sonora and Commerce Streets, in the city of Stockton, several blocks from where the deceased was slain. Accordingly, the defendant” set up and undertook to sustain an alibi and it is the ruling of the court disallowing certain testimony offered by the defendant in support thereof which constitutes the point first urged in the briefs as a sufficient ground for a reversal, and it arose in this way: The defendant claimed and attempted to prove at the trial that, at about

The doctrine of res gestae is so well understood that it is hardly necessary to remark that under that rule evidence is admissible of extrajudicial declarations tending to explain or show the character or motive or purpose or intent of a transaction, itself a fact in dispute, which would under other or ordinary circumstances be excluded as hearsay or self-serving. The rule, in other words, recognizes the competency of certain hearsay testimony, and is an exception to the gen-' eral rule of exclusion as to that class of proof. Our Code of Civil Procedure, section 1850, thus states the rule: “Where, also, the declaration,- act, or omission forms part of a transaction, which is itself the fact in dispute, or evidence of that fact, such declaration, act, or omission is evidence, as part of the transaction.”

The propriety of such testimony, and, indeed, the theory upon which it is taken out of the general rule against hearsay testimony, proceeds from the supposition that the declarant, without an opportunity deliberately to concoct a false statement or story concerning the transaction for the express purpose of exonerating himself from censure or culpability in connection therewith, has spontaneously made some statement which tends to explain the nature, quality, motive, or intent of the transaction. In other words, it is a statement or declaration explanatory of the character of the transaction, its quality, purpose, or motive, given under such circumstances as to preclude the idea that it involved a falsehood deliberately meditated and conceived and given expression for the benefit or advantage of the declarant himself.

There are many cases which have sanctioned testimony of extrajudicial declarations where a defendant in a criminal case or a party to a civil action has made some statement as to some matter arising in connection with a transaction constituting the principal fact in dispute. Declarations in such cases, however, have generally been admitted, not altogether under the rule of res gestae, or because they were deemed as strictly a part of the principal transaction in dispute, but because they were regarded as indicative of the frame of mind of the declarant as to some act growing out of the principal transaction, and exhibited under such circumstances or conditions as to make it reasonably certain that it was not the re-

In his treatise on the “Law of Evidence,” section 108, Mr. Greenleaf thus states the rule: “When a person . . . leaves his house . ... his declarations, made at the time of the transaction, and expressive of its character., motive or object, are regarded as verbal acts, indicating a present purpose and intention, and are, therefore, admitted in proof like other material facts.”

The rule has been applied, under varying conditions, in many cases, both civil and criminal, and, without examining them in detail herein, we may cite the following cases in which the application of the principle involved in the rule is exemplified: State v. Mortenson, 26 Utah, 312 , [ 73 Pac. 562 , 569] ; State v. Power, 24 Wash. 34 , [ 63 L. R. A. 902 , 63 Pac. 1112 ]; State v. Howard, 32 Vt. 380 ; State v. Dickinson, 41 Wis. 299 ; United States v. Craig, 25 Fed. Cas. 682; Territory v. Conk, 2 Dak. 188 , [ 47 N. W. 395 ]; Lakeshore & M. S. R. Co. v. Herrick, 49 Ohio St. 25 , [ 29 N. E. 1052 ] ; State v. Jones, 64 Iowa, 349 , [ 17 N. W. 911 , 20 N. W. 470 ]; Denver & R. G. R. Co. v. Spencer, 25 Colo. 9 , [ 52 Pac. 211 ]; Grimes v. State, 68 Ind. 193 .

But, since the rule constitutes an exception to the general rule excluding the admission of hearsay testimony, it must, of course, be confined in its application strictly to the circumstances or conditions giving rise to the reason for the recognition of that class of testimony as a legal method of proving a fact, and hence we do not believe that the scope of the rule can reasonably be so far extended as to justify the admission in evidence of the declaration of a third party to the defendant in either a criminal or civil action involving a request by the former that the latter go to some particular place, unless such declaration is accompanied or followed by a declaration by the party himself that he intends to go to such place. Therefore, referring to the present case, the fact that Gong Sue might have requested Charlie Suey to go

The witness, Alfred Love, an American and a building contractor and a citizen of Stockton, presumably of reputable standing in that community, testified that he saw Charlie Sney and another Chinese in the street, about forty feet from the lumber-yard, on the day of the homicide, near the hour of' 1 o ’clock P. M. The precise moment of time when the deceased was shot no witness pretended to state, but it was given as approximately at 1 o’clock—that is, at some point of time between 1 and 1:30 P. M. Nor did Love pretend to be able to fix or state the precise moment of time at which he saw the two Chinese near the lumber-yard. His fixing of the time amounted, as must be so in a majority of such cases, to a mere approximation. There is nothing to show that there was any occasion for him to ascertain or fix the exact moment when he saw them.

There was testimony, as seen, that the Chinese committing the act, after doing so, ran from the scene thereof, and that two of them went in the direction of the lumber-yard—that is, in that general direction. The defendant and Charlie Suey were arrested near the lumber-yard, and in their con

It is next urged that error prejudicial to the defendant followed from asking Gong Sue, on cross-examination, if it was not a fact that he was engaged in the business of selling lottery tickets, he having on direct examination stated that he was conducting a laundry business. That question was not objected to, and the witness replied that lottery tickets were

Generally, the purpose which an attorney has in view in asking his witnesses as to the business in which they are engaged is to bolster the reliability of their testimony, and we cannot conceive of any just reason why, in such a case, it is not proper for the party against whom or whose interests a witness testifies to show, on cross-examination, that, as a matter of fact, the witness is not conducting the business in which he has said he is engaged, or, if he is, that in connection therewith he is also carrying on a traffic of a less reputable character. But, at any rate, no objection was made to the first of the several questions propounded on that line of cross-examination, and the objection to the last question was sustained, and, therefore, no review of the complaint in that respect is justified, not even upon the theory that the objection goes to the question of the misconduct of the district attorney, since the objection was solely upon the ground that it was not cross-examination and no specific objection or exception to the alleged misconduct of the prosecuting officer made. Moreover, the witness positively denied that he ever conducted a lottery business, and we are not to assume that the jury concluded that he lied in that particular, no other testimony having been received relating to that matter.

Much that is said in the foregoing applies with equal force to objections to a similar character of questions propounded on cross-examination to defendant’s witness, Tee Won.

It is next urged that the district attorney was guilty of misconduct seriously militating against the substantial rights of the accused by referring in his argument to a matter which it is claimed was not brought out in the testimony and which tended to show a conflict between the testimony of the witness, Love, and that of the defendant upon a material fact in connection with the proof received in support of the alibi.

The above is all that the record discloses relative to the matter under consideration—that is to say, with the exception of the above-explained colloquy between counsel, the record does not show, or at least our attention has not been directed to any part of the record where it is shown, that there was any correction made of the testimony of the defendant in the respect indicated above or agreed to by counsel on both sides, and in the absence of a proper showing in that regard, this <iourt cannot say upon the record that the special prosecutor was not justified in making the point to which objection is here made. In other words, admittedly the reporter’s notes showed that the defendant did testify that Suey shook hands

The last point pressed upon us for a reversal is that the court erred in refusing to grant the defendant a new trial on the ground that the jury “received evidence out of court other than that resulting from a view of the premises.” (Pen. Code, sec. 1181, subd. 2.) The motion for a new trial on said ground was, as above stated, supported by the affidavit of the defendant, setting forth the following Pacts: That, originally, attorneys Seymour and Bicke represented the defendant as attorneys in the case; that, for some reason, the specific nature of which is not disclosed by the record, Messrs. Seymour and Bicke, after the jury was impaneled and sworn, and before the taking of testimony was proceeded with, asked and were granted permission to withdraw from further participation in the case as representatives of the accused ; that, thereafter, the “Independent,” a daily newspaper published in the city of Stockton, in reporting the withdrawal of Seymour and Bicke from the case, stated, among other things, that it was rumored that the defendant intended to change his plea of not guilty to that of guilty; that the “affiant is informed and believes that the jury so impaneled and sworn to try said cause heard and took cognizance of said common rumor that affiant intended to and was about to plead guilty and read the articles indicated above and that in this regard the said jurors took evidence out of court in said cause or were biased and prejudiced against the defendant by reason thereof.” Attached to said affidavit was the newspaper article referred to therein, and also attached thereto was an article published in the same newspaper the following day, stating that the defendant, through a friend, positively denied any intention of pleading guilty, and containing a statement from Mr. Seymour, one of the attorneys who withdrew from the defense of the defendant, that “the Chinese and their

It will be observed that all that the affidavit contains as showing that the defendant was prejudiced by the publication referred to is the mere inference to be drawn from the statement therein made, on the information and belief of the affiant, that the jurors saw and read the said article. There is no positive showing that the jurors, or any of them, read the article or that they were prejudiced against the defendant or influenced to find against him by reason thereof. Even if such a publication had been made before the jury were called to the jury-box and it developed that any juror had read the article, it would not per se have disqualified him from sitting in the ease. To have disqualified him, it would have been necessary further to show that his mind had been by the article so affected relative to the case as that he could not. give the defendant a fair and impartial trial, according to law. Moreover, if it may be assumed that the jury read said article, it may with equal propriety be assumed that they also read the subsequent article correcting the statement of the first that the defendant contemplated entering a plea of guilty, and thus it may be assumed (assuming that both articles were read by the jurors) that the effect of the first article was overcome by the last. But, however that may be,- without something more positive than is shown here that the jurors read and were affected or influenced against the accused by the first article,, it must be assumed that, even if they perused the article, they were intelligent enough to know their sworn duty and honest enough to have confined ..themselves in the determination of the very serious question of the guilt or innocence of the accused entirely to a consideration of the evidence as it was allowed to go before them under the rules of law submitted to them by the court for their enlightenment and guidance in the discharge of that all-important function..

We have discovered no legal reason for disturbing the verdict, and, for the reasons herein given, the judgment and the order appealed from are affirmed.

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

In a characteristically able argument, the - senior counsel for the defendant urges a rehearing of this cause. There is nothing we can add to what has been said in the former opinion filed herein, except to express hearty concurrence in the general animadversion of the learned lawyer upon the practice too often resorted to in criminal eases by public prosecutors of lugging' into their cases in argument matters having vital bearing upon the case which have not been brought in by evidence and which are calculated to deprive an accused of that fair and impartial trial which is guaranteed to him by the constitution and the statute laws of the state. A public prosecutor should be equally as solicitous of the protection of the rights of a citizen or other person on trial for his life or his liberty as the judge who presides at the trial, and it is obviously an egregiously erroneous notion if that public officer conceives it to be his duty to convict every person against whom a crime has been charged, regardless of whether he is or is not guilty or of whether the proof he is able to produce against one so accused is or is not sufficient to justify his. conviction. And it is equally a mistake for such an officer to suppose that it is proper for him to present to the jury anything but strictly legal evidence in support of the charge, or that it is within the sphere of legitimate argument tO' prejudice the standing of the accused in the minds of those who are to determine an issue so serious to him by insinuating in the course of his address that some fact bearing strongly against the accused which has not been proved by proper evidence in reality exists. This court has on a number of previous occasions in a number of cases, notably in People v. Hail, 25 Cal. App. 342 , [ 143 Pac. 803 ], condemned such practice. In the present case, however, as is stated in the former opinion, there is no such record as justifies us in reviewing the point that the special prosecutor was guilty of misconduct in referring to a matter in his argument whic|i, it is claimed, was not brought into the case through the evidence. As explained in the former opinion, all that the record shows is that a controversy arose during the course of the prosecutor’s argument as to whether it was conceded by counsel representing the people that the

As above stated in the outset hereof, the learned attorney, as always he does, makes a forceful plea for a rehearing, but we do not thus feel persuaded that the conclusion we arrived at upon each of the points urged for a reversal, and from which conclusion necessarily followed the final result of the consideration of the record by this court, is erroneous.

The petition is denied.

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

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 21, 1918.