State v. Lee

7 Or. 237

• Court: Oregon Supreme Court
• Decided: January 15, 1879
• Status: Published

Opinion

By the Court,

Boise, J.:

These appellants were indicted at the October term of the circuit court of Multnomah county for the crime of murder in the first degree, jointly with Lee Jong, who escaped and fled the country, and were tried at the same term of the court, and convicted of the crime charged, and sentenced to be hanged by judgment of said court, rendered January 4, a. d. 1879, the same being the sixty-fourth day of said term of said court, from which judgment and sentence this appeal is taken.

The facts are, briefly, that the deceased, Chin Sue Ting, was mortally wounded by two blows in the head with a hatchet and two shots in the abdomen from a pistol or pistols, in the Chinese joss house, at or about two o’clock of the afternoon of the third day of October, A. D. 1878, from the effect of which wounds he died at or about two o’clock of the morning of October 5, 1878.

That deceased had been in said joss house on the evening of the second of October, about nine or ten o’clock. Charley Lee Quong applied to a special policeman, who was on duty below stairs, to go up into the second story of the building, into the joss room, and take deceased out, complaining that deceased had burst a Chinese stink-pot on the floor. That the policeman went up stairs accordingly, and found that some dark-looking fluid had been poured on the floor, which had a very offensive odor, and the deceased, being accused by Lee Quong of having poured it there, he was accordingly put out of the house by said officer. That as he left the room Lee Quong followed as far as the door, exclaiming in an angry tone, “Ki Gi,” which was interpreted to mean “a man who acts like a prostitution,” and as being a term of reproach. That said officer inquired of Lee Quong why he did not have the deceased arrested, to which Lee Quong replied: “I will arrest him to-morrow,” or “I will have him arrested to-morrow.” That about half-past one o’clock P. M. of October 3, tbe two and only witnesses for tbe state who claimed to. have witnessed the tragedy, left their respective places of employment in the suburbs of the city and came to the store of WingHing & Co., about two blocks distant from the joss house. That one of said witnesses met deceased at said store and they went directly to the joss house. That the other of said witnesses, when he reached the store, followed on immediately to the joss house, and the three had been in the joss room but a few minutes when the affray occurred. That said witnesses had been in the habit of leaving their places of employment about one o’clock of each day previous to October 3.

In giving an account of the killing, Wo Jung, a witness, testified: “That he is acquainted with defendants now on trial, and with Lee Jong, named in the indictment and not on trial, and was acquainted with the deceased in his life time; that deceased was wounded in the Chinese joss house in the city of Portland; that witness was present in the joss house at the time deceased was wounded, and was standing within seven or eight feet of deceased when he was attacked’ by the three defendants named in the indictment; that the first thing witness saw that indicated any difficulty between the defendants and deceased was that witness saw the defendant Lee Jaw raise a hatchet and strike the deceased from behind; that the deceased turned his face ini the direction of Lee Jaw, who then struck him a second blow with the hatchet; that deceased received both blows of the hatchet upon his head; that deceased was struck the first blow with the hatchet, and as he was in the act of turning his face towards Lee Jaw, the defendants, Charley Lee Quong and Lee Jong, each shot at deceased with pistols; that the pistols were fired from the side of the deceased— the witness could not tell from which side; Charley Lee Quong fired one of the pistols and Lee Jong fired the other at deceased; that the shots were fired in quick succession, the one immediately after the other; that after the second shot the deceased fell to the floor, and the witness was badly frightened and ran away; that witness is positive that deceased was first struck by Lee Jaw; that Lee Jaw was standing behind deceased when he struck him the first blow with the hatchet, and that upon being so struck deceased turned his head to one side, about which time Charley Lee Quong and Lee Jong fired pistols at him from his side, and the defendant, Lee Jaw, about the same time struck the deceased the second blow on his head with the hatchet, whereupon deceased fell to the floor and witness ran away; that there were a large number of persons present in the joss house at the time, but that there were no persons between witness and deceased at the time he was attacked and wounded by the three defendants named in the indictment; that a band of China musicians were performing upon their instruments in the joss room at the time, and there was much noise in the room; that witness did not see deceased do anything nor hear him say anything to either of defendants before he was assaulted by them.” The witness also testified to the situation of the tables in the room, and some other things not necessary to mention here.

Another witness, Lun Sing, was introduced by the prosecution, who testified that he was present in the joss house at the time of the wounding, and was standing near the north wall of the room, which is opposite the side at which the difficulty occurred, which was near the south wall at the south end of the tables. This witness in describing the same says the first thing he saw to indicate trouble was that he saw Lee Jaw raise a hatchet and strike deceased on the head; that Lee Jaw was standing behind deceased at the time, the back of deceased being toward Lee Jaw, who struck him from behind, and struck him on the head with the hatchet; that this blow was on the back of the head of deceased; that deceased when struck turned his head with his face towards Lee Jaw, who then struck him a second blow with the hatchet; that deceased received this second blow on his forehead; that Charley Lee Quong and Lee Jong were standing close to deceased at the time, and witness saw both of them put their hands in their pockets and draw them out again; they each, Charley Lee Quong and Lee Jong, raised their arms, having their hands under their sleeves, and two pistols were fired in rapid succession, but witness did not recognize by whom they were fired; they seemed to be fired from about where the defendants Charley Lee Quong and Lee Jong were standing, but witness could not recognize who fired either pistol; says he was at the north side of the room and at the north end of the same table that deceased was standing at the south end of; and that he could see him and what took place:

These witnesses, Wo Jung and Lun Sing, were the only witnesses introduced on the part of the prosecution who claimed to have been present up stairs in the joss room when deceased was wounded, and were the only witnesses on behalf of the state who testified to having seen the difficulty. Both of said witnesses testified that they were at and before the difficulty scholars in the Chinese mission school in the city of Portland, and that deceased was also a scholar in said school. Lun Sing testified that he went to the joss house with the deceased, and the other witness went there about the same time; and they had been there but a short time when the difficulty occurred.

The first witness named above, Wo Jung, testified on cross-examination that after the shooting he ran away and went to Wilbur’s, where he was employed, and did not tell any one what had happened or that he saw deceased when he was hurt; said he had never told the facts to any one until the time he was then examined in court on the trial. On re-examination by the prosecution he said he had testified before the grand jury and talked with Mr. Mulkey, the attorney for the state, and given him the names of the defendants the next day after the killing, and he was also before the coroner’s jury, and when asked why he ran away from the joss house he answered: “I was afraid the other side would turn to and kill me.”

Dr. Saylor, a witness for the state, testified that he made a post mortem examination of the body of the deceased; that deceased had received two blows on the head, inflicted by some sharp instrument which witness supposed to be á hatchet; that the wounds were on the left side of the head, and both cuts penetrated through the skull into the brain. This witness also found on the deceased two gun-shot wounds — one in the bowels, near the navel, and the other in the pelvis; that the first gun-shot wound perforated the bowels, and was the immediate cause of his death; that the wounds in the head extended from about two and one half or three inches above the eye, backward to or beyond the curve of the skull behind; that these wounds were something over half an inch apart in front and came together behind, thus forming a Y shape; that in the opinion of witness either of said wounds would most probably have proved fatal, but the immediate cause of the death was inflammation from the gun-shot wound in the bowels; that the gunshot wounds were received from the front; that either of said cuts on the head would have knocked down any ordinary man; that in the opinion of the witness both blows on the head were inflicted by a party standing in front of deceased when the blows were struck; that deceased was probably not so tall as Lee Jaw or Charley Lee Quong by two or three inches; that wounds in the head might have been given by one standing behind deceased if deceased had been sitting down at the time or had been seized and drawn backwards; but that witness is of the opinion that both blows were struck by a person standing in front of deceased at the time; witness thinks all the wounds were given by a person standing in front of deceased, and that the wounds on the head were made with a hatchet having a blade from three and one half to four inches wide.

The dying declarations of deceased were also admitted, in which deceased said that Lee Jaw cut him and that Charley Lee Quong shot him. In these dying declarations the deceased did not explain how he knew that defendants were the parties; and if the statements of the witnesses Wo Jung and Lun Sing are true, it would seem that the deceased could not have seen Lee Jaw when he struck him with the hatchet, and he would not have been likely to have seen Charley Lee Quong shoot him when stunned by a blow that penetrated his brain. So the probabilities are that if he knew these men to have been the parties he must have learned it from those who witnessed the attack.

The defendants offered evidence tending to prove that neither of these prisoners, Lee Jaw or Charley Lee Quong, were present in the joss room at the time the wounds were inflicted. The defendants then introduced three or four witnesses, who testified that they were present when deceased was wounded and saw the whole difficulty; that deceased came to about the same place in the joss room as stated by witnesses for the prosecution, and then raised his right hand, having a piece of meat in it, which he attempted to throw at the joss; that the defendant, named Lee Jong in the indictment, was standing at the time immediately in front of deceased, between him and the joss, and about three feet distant from deceased; that when deceased raised his hand to throw the meat Lee Jong seized him with both hands by his arms and exclaimed: “ Don’t do that!” That thereupon a scuffle ensued between Lee Jong and the deceased, during which Lee Jong drew a hatchet from under his coat or garment behind, and struck at the head of deceased with the hatchet.

The witnesses are not certain whether the hatchet came in contact with the head of deceased at that time, but think not; that thereupon deceased, having dropped the meat, seized the hatchet with both hands and Lee John did likewise, and a scuffle ensued between them for the possession of the hatchet; that Lee Jong, unable to wrest the hatchet from deceased, let go of it with his right hand, but still held on with his left and drew a pistol with his right hand from under his clothes and shot deceased; that deceased staggered, and Lee Jong again cocked said pistol and shot him a second time; that at the second shot deceased loosed his hold on the hatchet and fell to the floor, whereupon Lee Jong put the pistol back under his clothing, and taking the hatchet in his right hand, struck deceased twice in the head with the blade of the hatchet as he lay on his back on the floor. Each of these witnesses for defendant who so testified to having seen the difficulty also testified that they did not see either Lee Jaw or Charley Lee Quong present at the scene of the difficulty, and that neither of them participated in it.

From the testimony of these witnesses, who claimed they each saw the whole transaction, it is evident that there are different accounts as to the manner in which the wounds were given and who participated in the attack. The judge of the circuit court said to the jury in instructing them that this testimony could not be reconciled, and that perjury had been committed by the witnesses on the one side or the other, and we think he was warranted in making that statement, for the testimony of all the witnesses can not be true. There is no reason to suppose that they were honestly mistaken; but to determine who among the witnesses had sworn falsely, or how much of the testimony of each or any of them was true or false, was a question for the jury.

The testimony of the witnesses for the prosecution, who state that the deceased was struck with a hatchet from behind, does not accord with the opinion of Dr. Saylor, who gives it as his opinion that the blows came from a person standing in front of deceased, and in addition to the reasons given by Dr. Saylor, the wounds were both on the left side of the head, where they would be likely to be made by a person standing in front and using the hatchet in his right hand. If they were made by a person standing behind they would be likely to be on the right side of the head, if the person assaulting used his right hand.

The witnesses for the defense describe the transaction with unusual minuteness and precision. They say that thereupon deceased having dropped the meat he was going to throw at the joss, seized the hatchet with both hands and Lee Jong did likewise, and a scuffle ensued between them for its possession; that Lee Jong, being unable to wrest the hatchet from deceased, let go of it with his right hand, but still holding it with his left, drew a pistol with his right hand from under his clothes and shot deceased with said pistol from in front; that deceased staggered, and Lee Jong again cocked said pistol and shot him the second time; that at the second shot deceased loosed his hold on the hatchet and fell to the floor, whereupon Lee J ong put the pistol back under his clothing, and taking the hatchet in his right hand, struck deceased twice in the head with the blade of the hatchet as he lay upon his back upon the floor. If all these witnesses saw this transaction and describe it alike in all these minute details, their testimony is liable to criticism, for witnesses to such a transaction rarely agree in details, and there was a large number present and much noise and excitement in the room. The intrinsic value of this testimony is greatly weakened by the exact agreement of each witness in these minute details, and we think the criticism thereon by the court was just and proper.

It may be that each party (for it seems there were two parties in the room at the time) has given a highly colored and partially false statement of the real facts. At any rate, it was the province and the duty of the jury to pass on the value of all this evidence on both sides and try to ascertain the real facts of the transaction from all the evidence.

After the evidence was closed, the court, among other things, charged the jury: “In this case there is no testimony tending to reduce the grade of the crime from murder in the first degree, except the testimony of those witnesses for the defense, who give an account of the killing, as they claim to have seen it. But if the testimony of these witnesses is true then these defendants were not present at all.’ If therefore you believe these witnesses these defendants are entitled to a verdict of acquittal. If you have a reasonable doubt as to whether or not they have told the truth the defendant should be acquitted. If you think beyond a reasonable doubt that they have not told the truth, then there is no testimony, as stated, tending to reduce the grade of the crime below that of murder in the first degree. In other words, in the testimony tending to convict these defendants there is nothing- that will justify you in finding the defendants guilty in any less degree than that charged.” As before indicated, the evidence on both sides was liable to criticism. The witnesses for the prosecution did not agree as to the position of the parties, when the wounds were given, and the counsel for the defense had a right to submit to the jury the question as to the entire truth of their theory, and also the theory that some truth and some falsehold had been spoken by the witnesses on each side. That is, that if the jury should reject the theory of the alibi —still that the evidence tended to show that deceased was committing an act of sacrilege on the Chinese religion, which its votaries had avenged in the sudden heat of passion. This instruction puts the case to the jury by presenting each side separately, telling the jury to look at the evidence, and if they believe the witnesses for the prosecution, then it is murder in the first degree. If they believe the witnesses for the defense, then the defendants should be acquitted. But suppose the jury believed from the appearance and conduct of the witnesses on each side that they had come into court to swear through their case, and that some truth and some falsehood had been testified to on each side, and though they believed there had been a crime committed, yet they doubted as to whether it had been premeditated or had arisen in a sudden quarrel, then the defendants had a right to the benefit of such doubt. And we think the last part of this instruction which says: “In other words, in the testimony tending to convict these defendants there is nothing that will justify you in finding the defendants guilty in any degree less than that charged,” is erroneous, for the jury probably understood by this the testimony for the prosecution. In that testimony the two Chinese witnesses swear that deceased was struck with a hatchet by Lee Jaw, standing behind him, while Dr. Saylor, a witness for the prosecution, gives it as his opinion from the position of the wounds that the blows were inflicted by a person standing in front of deceased, and also that either of these blows would have caused sudden paralysis and caused the deceased to fall, while the two Chinese witnesses say he stood up and looked round after he was struck. These facts had a tendency to contradict the theory that deceased was struck by a person standing behind him, which fact was the strongest one in the case to prove premeditation, which was one of the facts to be found by the jury in order to justify them in finding the prisoners guilty of murder in the first degree.

We think this instruction might have prejudiced the rights of the defendants. It is true that the court afterwards, in his instructions, told the jury that they must find the defendants guilty beyond a reasonable doubt, and also, that if they believed from the evidence that either of the defendants killed or assisted in killing Chin Su Ying, and entertained a reasonable doubt as to the grade of the crime, the defendant was entitled to the benefit of that doubt, and the jury should find such defendant guilty of the lower grade.

But the court, having in the instruction referred to, first told the jury that there was no evidence tending to reduce the degree of the crime from that charged unless they believed the defendants’ witnesses, we think the instruction was likely to have influenced the jury against the defendants. There is exception taken also to the ruling of the court in admitting the dying declarations of the deceased. As to this we think, as that is a matter to a certain degree in the discretion of the circuit court who hears the witnesses, that this court should not hold such a ruling erroneous unless it is evidently so, and we hold from the evidence here presented that such ruling was correct. The defendants’ counsel also asked the court to charge the jury that “if the jury find that none but Chinese witnesses testify to the circumstances of the killing and as to the parties concerned in it, and the jury are in such doubt as to the credibility or truthfulness of such witnesses as to feel uncertain whether they should be believed, the jury should acquit the defendants.”

This instruction was refused, and we think properly, because the word uncertain may include any doubt, whether reasonable or not. There is more or less uncertainty as to all facts attempted to be established by parol evidence. Nothing is absolutely certain that rests on the testimony of men, and where evidence is given to establish any proposition tending to prove guilt, it is sufficient if it remove all reasonable doubt.

There are many other instructions and rulings of the court which were controverted in the argument, but we think they were substantially correct. The judgment of the circuit court will be reversed and a new trial ordered.