People v. Ye Foo

Defendant was charged by the district attorney of the crime of murder in killing one Louie Mong with malice aforethought on the third day of October, 1905, in the city of Fresno. After a trial, he was found guilty of murder in the first degree and judgment was accordingly entered, sentencing him to imprisonment for life. This appeal is from the judgment and order denying his motion for a new trial.

There was evidence to the effect that shortly after 10 o’clock P. M. of the day named in the information the deceased was shot and killed while in his room in Chinatown in the city of Fresno, by the defendant, who had just entered the room accompanied by four other Chinamen, all of whom were armed, and some of whom .took part in the killing. After the killing the defendant and the four other Chinamen who were evidently acting in concert with him, left the room and came out of the stairway of the house into the lighted alley with their guns still in their hands. No claim is made as to the insufficiency of the evidence to justify the verdict, but it is argued

The first claim made by defendant is that the court erred in allowing the prosecution to call witnesses in rebuttal upon the questions of an alibi relied upon by defendant, who had introduced several witnesses to prove that he was in San Francisco and not in Fresno at the time of the homicide. The claim is made that the testimony so received is not rebuttal, and that it was incumbent on the prosecution to prove as a part of its original case the whereabouts of defendant at the time of the killing, and to make such proof by all the witnesses it intended to call upon the question under any circumstances. In other words, the proposition contended for is, that if the prosecution should prove the commission of a crime at a certain time and place by the two or three witnesses who were present, and the defendant afterward calls ten witnesses who each testifies to the effect that at the same time the defendant was at a certain room in a certain house in a different place, the people should not be allowed to call any witnesses in rebuttal. If such a proposition could be maintained the people in many cases would be powerless and crime would go unpunished, The district attorney might have evidence to show that each of the ten witnesses was not in the place testified to by them, but in a different place at the time and at the moment of the homicide, and yet the rule contended for would preclude him from showing it. The defense of an alibi is an affirmative one, and if established, a complete one, and the burden is upon the defendant to prove it. The object of the' trial is to get at the truth, and while the rights of the defendant should be always carefully guarded, and the procedure designed for his protection substantially followed, yet the law will not reduce its rules to an absurdity in order to prevent a fair and full investigation by the prosecution. The district attorney had no reason to anticipate the defense of an alibi, and the evidence was competent, and in rebuttal. (State v. Lewis, 69 Mo. 92 ; Commonwealth v. Moulton, 4 Gray, 39 ; State v. Maher, 74 Iowa, 77 , [ 37 N. W. 2 ]; Goldsby v. United States, 160 U. S. 70 , [ 16 Sup. Ct. Rep. 216 ]; Wade v. Thayer, 40 Cal. 584 .)

Defendant’s counsel argue at considerable length that the court erred in permitting evidence tending to impeach defendant’s witness, Jue Doe Men, who testified in direct examination that he was at the Chinese theater in the city of Fresno at the very time of the homicide, and that he then and there saw Wong Dock, who is jointly charged with defendant, at the theater. In cross-examination the district attorney called the attention of the witness to a conversation with one Edgar, who was a witness for the prosecution, in which conversation the witness was asked in effect if he did not offer, or intimate to Edgar, that he would give him twenty dollars if he would

In the case of People v. Coyne, 116 Cal. 295 , [ 48 Pac. 218 ], it appeared affirmatively that the court did not admonish the jury at a certain adjournment of court, and the court said: “But the error in this regard is technical, and not of that importance to demand a reversal of the judgment and a new trial. ’ ’

In People v. Thompson, 84 Cal. 598 , [ 24 Pac. 384 ], cited by defendant, it appeared affirmatively that the court did not admonish the jury, and yet the court said: “In the present case no injury appears to have resulted, and there may have been no prejudicial error. ’ ’

In People v. Maughs, 149 Cal. 253 , [ 86 Pac. 187 ], the opinion does state that the record should disclose the fact that the jury were admonished, but the case was not reversed on this point. The learned judge who wrote the opinion in the Maughs case cites no authority for the statement that the record should disclose the fact of such admonition being given. The only ease is People v. Thompson, 84 Cal. 598 , [ 24 Pac. 254 ], and it expressly states that the court did not admonish the jury.

The court, at the request of the prosecution, instructed the jury as follows: “There need be no appreciable space of time between the intention to kill and the act of killing—they may be as instantaneous as successive thoughts of the mind. It is only necessary that the act of killing be preceded by a concurrence of will, deliberation and premeditation on the part of the slayer, and if such is the case the killing is murder of the first degree, no matter how rapidly these acts of the mind may succeed each other, or how quickly they may be followed by the act of killing. ’ ’

It is seriously urged that the court erred in giving the above instruction, and it is claimed that the supreme court expressly so held in People v. Maughs, 149 Cal. 253 , [ 86 Pac. 187 ]. It is said that the instruction should have read: “It is only

In People v. Weber, 149 Cal. 325 , [ 86 Pac. 671 ], the instructions were approved and held not to be erroneous, and the transcript in that case shows an instruction in the same language as the one complained of here. The same instruction in effect was approved in People v. Nichol, 34 Cal. 215 ; People v. Iams, 57 Cal. 115 ; People v. Williams, 43 Cal. 344 .

In the Maughs case there was testimony that the defendant in self-defense shot decedent, a young and vigorous man, his physical superior, who was making an assault upon him with a deadly weapon. The ease was reversed upon several

The court refused to give, at the request of the defendant, the following instruction: “The presumption of the defendant’s innocence does not cease at any time during the taking of the testimony or of the argument, nor does it cease when the case is finally submitted to you for your consideration, but this defendant is presumed to be innocent all through the case, and in your deliberations in the jury-room, you are to examine the testimony in the light of that presumption.” The instruction might well have been given, but the failure to give it is not such error as to justify a reversal of the case. The jury were elsewhere told that the presumption of innocence “attaches to every stage of the proceeding,” and that the burden is upon the prosecution to prove each material fact beyond a reasonable doubt and to a moral certainty, and that this burden “remains through the entire case.”

We have examined the other alleged errors as to giving and refusing instructions, and find no occasion for discussing them separately. The instructions as a whole gave to the jury a full and fair statement of the law pertaining to each and every phase of the case.

Counsel have devoted a great part of their brief to discussing certain remarks made by the district attorney in his address to the jury. We have carefully read the record, and the briefs, and conclude that the matter to which our attention is called would not justify a reversal of the case. District attorneys, in their zeal to obtain convictions, often overstep the proper bounds, and by intimation, innuendo or statement, get before the jury matters not in evidence. When such course has been willfully pursued or where something is stated and represented as a fact, and the statement is damaging and not borne out by the record, the courts of appeal have not hesitated to reverse the case, and grant a new trial. But in the argument of a ease, where counsel has become zealous in his cause, and upon his own view of the case works his mind up to believe certain things, he is apt to exaggerate

It is evident that the district attorney was partly drawing upon his imagination by way of illustration. He finally said, “Now, I don’t suppose Yee Foo would be retained in the employ of Jake Num for other murders if,” etc. Defendant appeared from the testimony to have been in the employ of Jake Num. The evidence justified the district attorney in claiming that defendant committed murder in the case in which he was being tried. As to whether or not he would be retained for other murders had reference to the future. He did not accuse the defendant of having ever committed

In People v. McMahon, 124 Cal. 436 , [ 57 Pac. 224 ], the district attorney, after speaking of the defendant as “Old Harris, the whisky seller,” said that he “ought to be in the penitentiary,” and the court held that the language was not sufficient to call for a reversal of the case.

In People v. Wheeler, 65 Cal. 77 , [ 2 Pac. 892 ], it was held not to be error when the district attorney said to defendant, “You sought this trouble with him and made a cowardly attack on him. ’ ’

In People v. Glaze, 139 Cal. 159 , [ 72 Pac. 965 ], the language of the district attorney was (referring to defendant) : ‘ ‘ When this foul fiend of hell sent Trewella to his Maker, the motive came from a heart as black as the crime committed.” It was held not to constitute error.

In People v. Soeder, 150 Cal. 12 , [ 87 Pac. 1016 ], the remark was: “This man Leon Soeder would cut another man’s throat any day in the week, whether he wanted to marry Catherine Platley or not, ’ ’ and it was held not to constitute error.

In People v. Weber, 149 Cal. 325 , [ 86 Pac. 671 ], the attorney general stated his solemn belief in the guilt of defendant, and it was claimed that he committed error in so doing. The court said: “A prosecuting officer, therefore, has the

We have discussed the latter point upon its merits, but we might well have held the remarks not subject to review for another reason. The record merely shows that the language of the district attorney “is excepted to as unsupported by any evidence, and as prejudicial to the substantial rights of the defendant.” The court was not asked to strike out the cbjectional remark, nor does it appear that the court ruled upon the exception. It is but fair to require defendant’s attorney, in ease of objectionable remarks by the district attorney, to call the court’s attention to them then and there, and invoke the aid of the court to prevent the remarks from injuring the defendant, before he will be allowed to urge the matter as error in this court. In such case this court will not hold the remark error upon which to reverse the ease. (People v. Shears, 133 Cal. 159 , [ 65 Pac. 295 ]; People v. Beaver, 83 Cal. 419 , [ 23 Pac. 321 ] ; People v. Ah Fook, 64 Cal. 383 , [ 1 Pac. 347 ] ; People v. Kramer, 117 Cal. 650 , [ 49 Pac. 842 ] ; Lunsford v. Dietrich, 93 Ala. 565 , [ 30 Am. St. Rep. 79 , 9 South. 308 ].)

There was no error in the reference of the district attorney to the failure of Wong Dock, who was jointly charged with defendant, to testify in the case. No reference was made to the failure of the defendant to testify, and no reason occurs to us why the remark was not legitimate argument as to a codefendant. The law does not exempt a defendant, who is jointly charged, from' being a witness either for or against his codefendant. (Ex parte Stice, 70 Cal. 51 , [ 11 Pac. 459 ]; People v. Plyer, 121 Cal. 162 , [ 53 Pac. 553 ].) If such co-defendant should be called, and should refuse to testify on the ground that his evidence might tend to incriminate himself, that would present a different question. Wong Dock was a competent witness, and was in the county jail, and subject to the process of the court. He could have been called by the prosecution or by the defendant. The cases cited by defendant were most of them where the law, under which the decision was rendered, makes the wife, or husband, or

That it is not error for a prosecuting attorney to refer to the fact that a codefendant has not been called to testify has been held in State v. Mathews, 98 Mo. 125 , [ 10 S. W. 144 , 11 S. W. 1135 ]. (See, further, State v. Millmeier, 102 Iowa, 692 , [ 72 N. W. 275 ]; United States v. Candler, 65 Fed. 308 ; Commonwealth v. McCabe, 163 Mass. 98 , [ 39 N. E. 777 ]; Commonwealth v. Clark, 14 Gray, 367 ; Hall v. State (Tex. Or.), 22 S. W. 141 ].)

We have carefully read the affidavits in regard to newly discovered evidence. The main portion of them relates to statements as to evidence that would be cumulative. Several of them relate to statements that could only be admissible by way of impeachment. There were counter-affidavits, and the learned judge who tried the ease considered them in the light of all that had occurred during the trial. The court does not

The judgment and order are affirmed.

Hall, J., and Kerrigan, 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 April 5, 1907.