Commonwealth v. Chin Kee

• Decision Date: 05 June 1933
• Citation: 283 Mass. 248,186 N.E. 253
• Parties: COMMONWEALTH v. CHIN KEE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

283 Mass. 248

186 N.E. 253

COMMONWEALTH

v.CHIN KEE.

Supreme Judicial Court of Massachusetts, Middlesex.

June 5, 1933.

Appeal from Superior Criminal Court, Middlesex County; T. J. Hammond, Judge.

Chin Kee was convicted of murder, and he appeals.

Judgment on verdict.T. L. Thistle, P. A. Guthrie, and J. F. Thistle, all of Boston, for appellant.

W. L. Bishop, Dist. Atty., of Boston, for the Commonwealth.

DONAHUE, Justice.

Ong Sing Ping, sometimes known as Sam Lee, a native of China and about sixty-five years old, was short and killed in his laundry on Grove Street, Melrose, about 8:45 on the evening of August 24, 1932. The defendant, who was thirty-three years old and also of the Chinese race, was indicted for murder on September 13, 1932, and was later tried and convicted of murder in the first degree. His appeal brings before us on the record fifteen assignments of error.

There was evidence which warranted the jury in finding the facts which are hereby briefly summarized. The premises occupied by the deceased in the conduct of his laundry consisted of a front room, facing Grove Street, where customers delivered and received laundry and where ironing was done; back of the front room was a second room used by the deceased for living and sleeping quarters and for other purposes, and beyond this a third room in the rear of the building. From this third room a door led to a toilet from which another door gave entrance to a room or compartment used for the storage of coke. On the evening of the killing the front room was lighted. The jury had a view.

The defendant, who had been out of work for six months, left his room on Hudson Street, Boston, about six o'clock on the evening of August 24, and at about seven boarded an elevated train at the Essex Street station, went to Everett and took a bus for Melrose. At Melrose he inquired the way to the deceased's laundry, where he had never been before, arriving shortly after 8:30. He went into the front room and finding no one there went into the second room. Ten or fifteen minutes later several persons in the neighborhood heard screams in the laundry, followed in several seconds by the sound of a shot and after another interval of several seconds by another shot. Shortly afterwards the defendant came from the second room into the front room, wearing a hat and coat, and locked the outside door. Then he went back into the second room but in a short space of time came again into the front room without hat or coat and started ironing. A little later a customer seeking his laundry tried the door, found it locked and shook it. The defendant who was then in the second room came out. The customer from outside the door asked for his laundry and the defendant told him to ‘Go away’. The customer again asked for his laundry and the defendant replied ‘Tomorrow; by and by.’ The customer asked where ‘Sam’ was and the defendant answered ‘Sam is gone home.’ Again the customer demanded his laundry and held his laundry check up against the glass of the door. The defendant then came and opened the door about six inches. The customer stepped to one side in front of the window and the defendant locked the door again and went back to the ironing board. A police officer in uniform named Warner then came and knocked on the door; he asked the defendant to open the door and the defendant said: ‘No.’ The officer then put his shoulder against the door and threatened to break it down if the defendant did not open and the defendant came and unlocked it. The officer asked where Sam Lee was and the defendant replied: ‘Don't know. Gone out.’ The officer pushed the defendant before him into the second room and the defendant led him into the third room where there was a gas jet burning and said: ‘See? Sam gone.’ As the officer turned to go toward the front of the laundry he heard a gurgling sound and looking saw what he took to be a bundle lying across some boards. He went over, took up a comforter and underneath was the body of the deceased on a small bed. He asked the defendant ‘Who did this?’ and the defendant said ‘I don't know.’ There was a wound in the abdomen where, according to the medical examiner who performed an autopsy, a bullet had entered the body from a weapon which was discharged when pressed close against the abdomen, and a wound in the back where the bullet had made its exit. There was a wound in the left eye made when a bullet had entered from a weapon held one eighth to one fourth of an inch away and a wound in the back of the head made when the bullet left. In the opinion of the same witness the wound through the abdomen would not cause instant death and the wound through the eye would. There were marks on the neck caused by fingernails, three abrasions on the chest, and numerous small black and blue areas and abrasions about the upper part of the back and shoulders.

The defendant was placed under arrest by officer Warner and handcuffed. Other officers soon came and the defendant was searched by officer Warner and Sergeant Curran, the defendant then not having on his coat. There was evidence from which it might have been found that the coat was not searched until after the defendant had been brought to the station house when there was found in the pockets of the coat a flash light, a rope twelve feet long, and various personal effects. No weapon was found on his person or in his clothing. There was evidence that just before he was taken from the laundry the defendant picked up his coat and threw it over his arm. He was led to the police car which was stopped across the street and sat on the right of the rear seat for seven or eight minutes before it was driven to the police station. He had a handkerchief in his hands. A witness testified that while the defendant was seated in the police car before it left the vicinity of the laundry he made motions with his hands, which the witness illustrated to the jury, at a time when the dome light in the rear of the car was not lit. On cross-examination the witness was asked if he saw the defendant move his hands in a very suspicious manner and answered that he did, that he saw the defendant move his hands to one side and illustrated the movement to the jury. A few hours later a search of the police car was made and a revolver found between the seat and the back cushion, near where the defendant had sat. It was a 32 caliber Colt revolver containing six shells, two of which were empty and four loaded, the two empty shells being together in the chamber of the revolver. An expert on firearms testified that the two bullets which had been found in the laundry had been fired from cartridges containing smokeless powder and that the four loaded cartridges in the revolver which had been found in the car were loaded with smokeless powder. He testified that the bullets had been fired from a Colt revolver of the pattern of revolver which was found in the car, and that because the bullets were so badly battered the delicate evidence on the outer surface of the bullets, which is necessary when an intimate relation between a bullet and a given firearm may be established, had been destroyed. The serial number indicated that over one hundred and ninety-two thousand revolvers of that pattern had been made before that particular revolver. There was evidence that it had been sold in 1923 to a man in Providence, but no evidence of its later history. In an unlocked till of money drawer in the front room there were bills and small change amounting to not more than $10 and in a hiding place under the top of an ironing machine in the second room $116 was found. The defendant testified that three days before August 24 the deceased, whom he had known for over a year, engaged him to take charge of the laundry while the deceased went for a visit to China and had sent a letter the day before asking the defendant to come to the laundry on August 24; that when he arrived at the laundry he found the deceased in the second room talking to two Chinamen; that they talked of the matter of a sale of the laundry, of the proposed trip to China, of the deceased saving money and as to the banks he kept it in; that finally there was an argument which became excited; that the younger of the two men took hold of the deceased and asked him where he kept his money, shot him through the body and then in the head and threw him on the bed; that the other man pointed a gun at the defendant, threatened him, told him to close the front door, which the defendant did, told the defendant to say nothing about what had happened, to stay there and keep on working, and then went through a door leading to the coke room. The defendant testified that neither of the two men went out the front door. There was a doorway leading from the third room to the back yard, where there was a screen door which could not be opened. The screening in that door was intact when the officers arrived. The only other door leading from the rear rooms led into an adjacent store and there was evidence that this was locked from the other side. There was evidence that all but one of the windows in the laundry were so boarded up or screened that no one could thereby have left the premises that night. A sliding window in the coke room which was unscreened was open six or eight inches when the police officers arrived. When interrogated at the police station the defendant said that when he arrived at the laundry he did not see the deceased there; that the rear door was open and he closed it; that he then took off his coat and hat and started ironing a shirt which was on the board in the front room; that he did not see the deceased until after the officers came when the body was discovered; that he was not there when the deceased screamed and two shots were fired. He said nothing about seeing two other Chinamen in the laundry. At the trial, on direct examination, he testified that he told only a part of the story at...