Sam v. State

• Citation: 265 P. 609,33 Ariz. 383
• Decision Date: 19 March 1928
• Docket Number: Criminal 663
• Parties: B. W. L. SAM, Appellant, v. STATE, Respondent
• Court: Supreme Court of Arizona

265 P. 609

33 Ariz. 383

B. W. L. SAM, Appellant, v. STATE, Respondent

Criminal No. 663

Supreme Court of Arizona

March 19, 1928

APPEAL from a judgment of the Superior Court of the County of Mohave. E. Elmo Bollinger, Judge. Affirmed.

Mr. L L. Wallace and Messrs. Struckmeyer, Jennings & Strouss, for Appellant.

Mr John W. Murphy, Attorney General, Mr. Frank J. Duffy Assistant Attorney General, and Mr. J. Hubert Smith, County Attorney (Mr. W. E. Patterson and Mr. J. J. Sweeney, of Counsel), for the State.

OPINION

LOCKWOOD, J.

B. W. L. Sam, Shew Chin, Gee King Long, Jew Har and Wong Lung were jointly informed against by the county attorney of Mohave county for the crime of murder. They entered pleas of not guilty, and B. W. L. Sam and Shew Chin were each tried separately, the other defendants being tried jointly before a third jury. In each case a verdict of guilty of murder in the first degree was returned, and the death penalty was fixed for all of the defendants. They were each duly sentenced to be hanged, and have appealed to this court.

There were three seperate appeals filed, that of B. W. L. Sam v. State, post, p. 421, 265 P. 622, that of Shew Chin v. State, post, p. 419, 265 P. 621, and that of Gee King Long, Jew Har and Wong Lung v. State, post, p. 420, 265 P. 622; but since the proceedings in each of the three cases were almost identical and since the assignments of error in the first named cover every assignment made and issue raised in the subsequent ones, by agreement of counsel the three cases were briefed and argued together, it being admitted that if the judgment against B. W. L. Sam is affirmed the others must take the same course, although the converse does not necessarily follow, as there are one or two alleged errors occurring at the trial of Sam which do not appear in the other cases, or at least the grounds in support thereof are not so strong. Before considering the various assignments of error, we think it best to make a statement of the facts in the case. No evidence was offered on behalf of defendants, so that we must consider the matter solely in the light of the testimony of the state's witnesses.

It appears therefrom that one Tom King, a Chinese, owned and operated a restaurant in Kingman, Mohave county, Arizona, known as the Mohave Cafe. This restaurant fronted on the main street of Kingman, and at its rear was an alley that ran at right angles to the back door, connecting with streets at each end. On the night of October 20, 1926, between 8:30 and 9 P.M., Tom King had finished his day's work, and was sitting in the kitchen by the rear door of the cafe, smoking his pipe. He was carrying on a conversation with another Chinese who lived in Mineral Park, Arizona, by the name of Wong Chong. A partner of Tom King, a Chinese named Don On, and an American named Frank Craig, who worked for them, were also in the kitchen, while one Chan Cheung was in the front dining-room taking the cash out of the cash register. According to the testimony of Don On, taken at the preliminary examination of all the defendants, while Tom King was carrying on this conversation, footsteps were heard in the rear of the cafe, and three Chinese entered the door by which Tom King was sitting. A fourth Chinese stood at the door holding the screen open. One, whose name was later ascertained to be Gee King Long, stepped in front of Tom King, and said "Hello, Tom King," in Chinese. As soon as this remark was made the other two Chinese, whose names were later ascertained to be Jew Har and Wong Lung, stepped up to either side of Tom King and began shooting at him. He rose from his chair and fell forward, whereupon the three Chinese gathered about him and one shot him in the head. When this was done, these three and the one holding open the screen rushed out through the back door of the cafe.

Immediately thereafter, according to the testimony of Ben Stromer, a resident of Kingman, a Chrysler automobile came out of the alley behind the cafe, and, after nearly colliding with the car driven by Stromer, disappeared in the direction of the post office. He noticed that the car carried a California license plate with the letter "D" upon it, and that the rear curtains were up, and afterwards identified it as the one found by the sheriff's deputies at the Sacramento Wash. Immediately after the killing Fred Coheneur, a deputy sheriff of Mohave county went into the restaurant and found Tom King lying dead on the floor. The room still contained some powder smoke, and the smell of powder was very plain. He met Don On and asked what the trouble was, and the latter replied that three Chinese had done the killing, and that they went out the back door and got in a car in the alley, this statement being made within a very few minutes of the killing, as shown by the fact that the room was still full of powder smoke.

Sheriff Mahoney was notified immediately, and Stromer informed Coheneur that he had seen this Chrysler car come out of the alley. All the deputies in the various towns of Mohave county accessible by telephone were immediately notified of the killing and instructed to stop and search all automobiles and arrest any Chinese found therein, and particularly to block the bridge across the Colorado River at Topock. Along about 2 o'clock in the morning a Buick automobile drove up to Topock, coming from the direction of Kingman, and heading towards Needles. The officers stopped it and found it was occupied by several Americans in front and the five defendants in the rear. The deputies inquired of the driver where he had picked up defendants, and was informed that their car had broken down between Topock and Yucca in the Sacramento Wash, and they had requested him to take them to San Bernardino. One of the deputies then asked the Chinese where they had come from that night, to which Wong Lung replied that they had come from Williams, Arizona. The latter was then questioned as to the time they came through Kingman, to which he answered that they did not come through Kingman, and to the inquiry as to how they could get from Williams to Topock without coming through Kingman no reply was made. The Chinese were then ordered to leave the automobile, and they demurred, stating they were going to San Bernardino where their father was dying; but upon the insistence of the officers finally alighted and one of them requested leave to send a telegram, but was told he would have to get permission from the court in Kingman the next morning. The deputies then took defendants back to Kingman, and on the way found a Chrysler car abandoned in the Sacramento Wash about twelve miles east of Topock, and headed towards California. Defendants were searched, and Wong Lung was found to be carrying tire lugs and keys which fitted the Chrysler automobile, and various papers in Chinese and English were found on defendant Shew Chin. Wong Lung admitted that the Chrysler automobile belonged to defendants.

There was evidence introduced at the trial that a certain Chinese had frequently interviewed defendants while they were in jail during the months of November and December, and before their trial, and had attempted to bribe one of the state's witnesses to testify to an alibi for them. It was also shown that during the months of October and November, 1926, a tong war was going on in some of the western states between the Hop Sing tong and the Bing Kong tong. One of the documents found in the possession of Shew Chin was a receipt issued by the Bing Kong tong, while a receipt from the Hop Sing tong was found among the effects of Tom King, the deceased. It further appeared that some of the defendants had passed the night of October 19th in Needles, California, that the Chrysler car was seen to pass through Yucca going towards Kingman late in the afternoon of October 20th, and that it arrived in Kingman a few minutes before the shooting on the night of October 20th, its occupants being identified by different witnesses. Two pistols were found in a garbage can in the rear of the cafe on the morning after the murder.

The defendants were given a preliminary examination on the 27th of October, in the justice court of Kingman precinct. At this time they were represented by Mr. L. L. Wallace, of Kingman. The testimony given at the inquest was taken by Mr. J. T. Morgan, who was the official court reporter of the superior court of Mohave county, and was by him reduced to writing and filed in the superior court. The defendants were then removed for safekeeping to the Yavapai county jail in Prescott, Arizona. On the 27th of November the defendants were arraigned before Honorable E. ELMO BOLLINGER, judge of the superior court of Mohave county, being represented as at the preliminary examination by Mr. L. L. Wallace. The information was duly read to them, and their counsel asked for a few days in which to enter their pleas, as he had not had an opportunity to study the record and the information. The court asked counsel if it would make any difference to him if the pleas were received a few days before the jury session was set, to which the latter replied that it would not, and the court, after again consulting him, fixed Friday, December 10th, as the date of the pleas, and further informed defendants in the presence of their counsel that they would be required to go to trial, in all probability, on the fifteenth day of December. The court then asked counsel for defendants whether he would ask for a delay of the setting at the time of the plea, to which he replied that it would depend upon what developed after he had examined the record.

On the tenth day of December defendants and their counsel appeared for a plea and presented a motion to set aside the information on the ground...