4 S.W. 704 (Mo. 1887), State v. Chiagk

Citation:4 S.W. 704, 92 Mo. 395
Opinion Judge:Sherwood, J.
Party Name:The State v. Chyo Chiagk, Appellant
Attorney:Martin & Fauntleroy and Henry D. Laughlin for appellant. B. G. Boone, Attorney General, A. C. Clover and C. O. Bishop for the state.
Judge Panel:Sherwood, J. Norton, C. J., concurs on the first point, but dissents as to the others.
Case Date:June 20, 1887
Court:Supreme Court of Missouri

Page 704

4 S.W. 704 (Mo. 1887)

92 Mo. 395

The State


Chyo Chiagk, Appellant

Supreme Court of Missouri

June 20, 1887

Appeal from St. Louis Criminal Court. -- Hon. G. S. Van Wagoner, Judge.

Reversed and remanded.

Martin & Fauntleroy and Henry D. Laughlin for appellant.

(1) The appellant was arrested by a police officer, without warrant or other process, and confined in the calaboose for over twenty hours without being charged with any offence, by the oath of a credible person, and was entitled to be restored to his liberty, under section 1490, Revised Statutes, and the motion to quash the indictment and discharge him should have been sustained. State v. Stern, 4 Mo.App. 385; Hopt v. Utah, 110 U.S. 574; Const. of U. S. 14th amend.; Const. of Mo., Bill of Rights, sec. 30. (2) The court erred in refusing appellant's motion for a special jury. His right thereto was fixed by the law in force when the alleged offence was committed. R. S., sec. 2802; State v. Kring, 17 Otto, 221; State v. Perry, 25 Mo. 355. (3) The court committed error in refusing to permit the interpreter to be sworn according to the laws of China, and refusing to permit appellant to show that said interpreter was an interested party, and not qualified to act as such. (4) It was error for the court to permit Cong Seng, jointly indicted with appellant, to testify against him, without first discharging him from the indictment. He was incompetent at common law, and our statute required him to be first discharged before he could testify against his co-defendant. R. S. 1879, sec. 1917; State v. Bruner, 65 N.C. 499; Lindsay v. People, 63 N.Y. 143; State v. Clump, 16 Mo. 385; 1 Greenl. Evid. [Redfield's Ed.] sec. 363; 1 Bishop Crim. Proc. [3 Ed.] sec. 1166; State v. O'Connor, 65 Mo. 374. (5) The court erred in excluding, as witnesses for the defence, Hock Siagk and the other co-defendants offered by the defence. Though jointly indicted, yet, the trial being separate, they were competent witnesses for their co-defendant. The statute (R. S. 1879, sec. 1918) removes the common-law disability by reason of interest; and, under this section, a defendant is made a competent witness for his co-defendant, even upon a joint trial, and a fortiori is this the law where the trials are separate. Especially, as Mr. Bishop, of counsel for the state, had used some of these defendants as witnesses against the accused, by asking them their names in the presence and hearing of the jury, thus supplementing the evidence of the witness on the stand with the evidence of defendants. The prosecution having thus examined one of these defendants against the accused, it was competent for the defendant to cross-examine him. State v. Brady, 87 Mo. 142. If this be not so, then it should be held to have been error for Mr. Bishop to thus examine this defendant. State v. Brier, 32 N. J. L. 414; People v. Labra, 5 Cal. 183; Armistead v. State, 18 Ga. 704; 3 Russell on Crimes, 625-6; State v. Morrow, 14 Lea [Tenn.]; Poteet v. State, Baxter [Tenn.] 261; 15 Cox Crim. Cas. 217; Wharton's Crim. Evid., sec. 445. (6) The seventh instruction, to the effect that the testimony of an accomplice ought to be corroborated by the testimony of some other person, as to matters material to the issue, is erroneous, in that it does not go far enough; the corroboration should not be merely as to matters material to the issue, but as to matters material to the issue and tending to show the accused's connection with the crime. The accomplice's testimony may be corroborated as to many matters material, and absolutely essential, to the issue, and yet there may be not one particle of corroboration as to any matter showing the guilt of the accused. Thus, for instance, the killing of deceased by some one is most material to the issue, but it can hardly be supposed that corroboration as to that would give any additional weight, or value, to the accomplice's testimony implicating the accused in the killing. 3 Russell on Crimes [9 Ed.] 602-3-4, and cases there cited; Roscoe's Crim. Evid. [7 Ed.] 129-30; 1 Bishop Crim. Proc. [3 Ed.] sec. 1170. And, moreover, this instruction is erroneous in authorizing the jury to convict on the testimony of the accomplice, if "fully satisfied of its truth." This instruction, it must be observed, undertakes to cover the whole measure of the juror's duty, and to tell him when, and upon what measure of proof, he should convict. Upon the whole case, he is told to convict if, and only if, he be convinced of guilt beyond all reasonable doubt, that is to a moral certainty, and now he is told to convict upon one particular and specified part of the testimony, if "fully satisfied of its truth." (7) The motion for a new trial should have been sustained on the grounds above set out, but we claim, in addition, that it should have been sustained, because the evidence did not warrant a conviction. It was so insufficient, and of such a character, that we feel justified in asking this court to interfere on this ground in favore vitae. We understand that this court will not, as a rule, reverse on account of any mere weight of evidence, but our position is, that a consideration of the evidence in this case will lead this court to conclude that the conviction in this case is unjust, and ought not to be suffered to stand. The following are all cases where this court has gone out of the general rule and reversed the finding of the jury, on the sole ground that the evidence did not warrant a conviction. "Whilst the law is firmly established in this state that it is not the province of this court, in civil cases, to weigh the evidence, or disturb the discretion of the lower courts, in maintaining or setting aside verdicts, it is equally well settled that, in criminal cases, we have never abandoned our right to interfere where the record shows that manifest injustice has been committed, or the verdict is not supported by the evidence. We will not say here that the verdict is wholly unsustained by the evidence, but the testimony is certainly very weak on which to base a conviction." State v. Mansfield, 41 Mo. 470; State v. Marshall, 47 Mo. 378; State v. Bird, 1 Mo. 585; Fanny v. State, 6 Mo. 122; State v. Gresser, 19 Mo. 247; State v. Packwood, 26 Mo. 340; State v. Burgdorf, 53 Mo. 65; State v. Daubert, 42 Mo. 238; State v. Brosius, 39 Mo. 534; State v. Jaeger, 66 Mo. 173. And this court has recently gone so far as to reverse a judgment, even in a civil case, upon the improbability of the evidence. Spohn v. Railroad, 87 Mo. 74. (8) The motion in arrest of judgment was improperly overruled.

B. G. Boone, Attorney General, A. C. Clover and C. O. Bishop for the state.

(1) The motion to quash the indictment and proceedings, on the ground that the prisoner had been illegally held prior to indictment and had no preliminary examination, was properly overruled. He was not entitled, as a matter of right, either under the constitution or by statute, to a preliminary examination before indictment. 1 Bish. Crim. Proc. [3 Ed.] sec. 239a. Section 1490, Revised Statutes, did not entitle him to a release after indictment found. It was then too late to complain. The indictment being good in form and substance, it could not be affected by an illegal arrest or restraint before it was found. Wharton's Crim. Plead. [8 Ed.] sec. 27, and cas. cit. (2) The court committed no error in denying appellant's motion for a special jury. The statute which gives the court the power to order a special venire does not invest the prisoner with the right to demand one. Sess. Acts, 1885, p. 74. It was a matter resting in the sound discretion of the court, and the exercise of that discretion must be affirmatively shown to have prejudiced the prisoner before this court can reverse a judgment therefor. (3) The court did not err in permitting Wong Chin Foo to act as interpreter in the cause, in translating the indictment to the accused and the testimony of the Chinese witnesses. His examination in the voir dire showed conclusively his good understanding of the English language, and of the Chinese, as well as could be determined, his disinterestedness in the event, and his proper appreciation of the solemnity of the statutory oath. The court would have had a right to appoint him interpreter of its own motion. R. S., sec. 1039. (4) The court committed no error in permitting the Chinese witnesses, on behalf of the state, to be sworn according to the statutory form, they having been examined on their voir dire by the court, and having stated that there was no oath to them of more solemn and binding obligation. R. S., sec. 3324; Const., art. 2, sec. 5. (5) There was no error in refusing to permit co-defendants not on trial to testify on behalf of the accused. They were clearly incompetent, never having been tried and the indictment still pending against them. State v. McMillan, 13 Mo. 30; State v. Roberts, 15 Mo. 29; State v. Martin, 74 Mo. 547. (6) The court committed no error in permitting the co-defendant, Cong Seng, over objection of appellant, to be sworn and to testify for the state, there having been a severance. Wharton's Crim. Evid. [9 Ed] sec. 439. And the statute (R. S., sec. 1917), does not change the common-law rule. The jury were carefully instructed by the court as to the caution with which they should receive this...

To continue reading