Quong Yu v. Territory of Arizona

• Decision Date: 20 March 1909
• Docket Number: Criminal 265
• Citation: 100 P. 462,12 Ariz. 183
• Parties: QUONG YU, Defendant and Appellant, v. TERRITORY OF ARIZONA, Respondent
• Court: Arizona Supreme Court

100 P. 462

12 Ariz. 183

QUONG YU, Defendant and Appellant, v. TERRITORY OF ARIZONA, Respondent

Criminal No. 265

Supreme Court of Arizona

March 20, 1909

APPEAL from a judgment of the District Court of the Third Judicial District, in and for the County of Maricopa. Edward Kent Judge. Affirmed.

The facts are stated in the opinion.

A. C Baker, for Appellant.

E. S Clark, Attorney General, for the Territory.

OPINION

DOAN, J.

-- The appellant in this case was convicted of burglary at the April term 1908, of the district court of Maricopa county, and, from the judgment of conviction and the denial of the motion for a new trial, he appeals to this court, and assigns as error:

"(1) The court erred in giving the following instruction to the jury: 'But if from the evidence you believe beyond a reasonable doubt that these goods were taken to this man's place in connection with the attempted burglary, they being found there in his possession, this is a corroboration of the testimony of Arviso, which you would have a right to take into account.'

"(2) The verdict is contrary to the evidence."

We will first consider the second assignment. An examination of the record discloses that one Alberto Arviso was also indicted for the same burglary, and pleaded guilty, and, on the trial of the defendant (Quong Yu), Arviso testified at length in regard to the circumstances of the occurrence. The gist of the testimony was that on the night in question (December 14, 1907) he procured a one-horse wagon, and about 8 or 9 o'clock he drove to the defendant's store; he and the defendant got on the wagon, and went to a store known as the "New York Store"; that he entered the store, went upstairs, dropped the goods down with a rope, put them on a table in the back yard, opened the corral gate, when the defendant entered in said yard and helped him put the goods into the wagon, after which he closed the door, went out through the front of the store, and met the defendant on the corner of the alley, when they drove together to the defendant's store, when the defendant paid him some money and he went away.

The witness Arviso admitted on cross-examination that he had on a former occasion told the officers that he had committed this burglary in company with and by the assistance of one Otero, but explained that fact by saying that he was drunk at the time they asked him, and he lied to them. The property stolen on the occasion of this burglary was fully identified by Charles Korrick, the proprietor of the store that was burglarized, who accompanied the city marshal and another officer to the defendant's place of business, and testified that he found the goods there in the defendant's bedroom concealed under the bed.

H. A. Moore, the city marshal, testified that on that occasion they found the goods, some on the shelves and some in a little storeroom, partly a storeroom and partly a bedroom, and a good many of the goods were concealed underneath the bed.

Leo Troutman, the officer who accompanied Korrick and the city marshal, testified that they found part of the goods in defendant's bedroom, and a few of them on the shelves, part under the bed, and part in the bed; they were covered up with some comforts on the bed; most of them were under the bed.

The testimony above referred to disposes of the second assignment of error. It is too well established to be seriously questioned that an appellate court will not interfere with the verdict of a jury based upon conflicting testimony, when there is any substantial evidence to support it. The question addressed to an appellate court on this assignment is not whether, if the court was sitting as a jury, they would render the same verdict as that found by the twelve men who tried the case under their oaths as jurors, but whether, on the one hand, there is any competent evidence to support the verdict found by the jury, or whether, on the other hand, the verdict was found without evidence, from passion, prejudice, or other improper motive or reason. The circumstances under which the goods were found in the possession of the defendant, corroborated by the testimony of the witness Arviso, would be held sufficient to support a verdict returned by twelve competent jurors, who, after hearing all the evidence in the case, including the defendant's explanation of his possession of the property and denial of his participation in the burglary, state under their oaths that from this evidence they are satisfied beyond a reasonable doubt of the defendant's guilt.

The first assignment is based upon the instruction of the court. In considering the...