State v. Chee Gong

• Decision Date: 13 November 1888
• Citation: 16 Or. 534,19 P. 607
• Parties: STATE v. CHEE GONG et al.
• Court: Oregon Supreme Court

19 P. 607

16 Or. 534

STATE v. CHEE GONG et al.

Supreme Court of Oregon

November 13, 1888

Appeal from circuit court, Multnomah county.

Chee Gong and Fong Long Dick were convicted of murder, and appeal.

(Syllabus by the Court.)

Before written documents can be introduced in evidence, against a defendant on trial for crime, which tend to prove his guilt or to case suspicion upon the good faith of his defense, they must be proved to be his production, or that he personally or by another, attempted to use them to his advantage. Held therefore, that where C.G. and F.I.D. were on trial, charged with the crime of murder, and the trial court ruled that certain papers, containing requests to other parties to testify in their behalf, were admissible in evidence upon a showing that the papers had been delivered by some one-it not appearing to whom-to intermediate parties, for transmission to the parties upon whom the request was made, and there was no proof of the defendants having prepared the papers, it was error.

Evidence of an alibi, in a criminal prosecution, is not such a defense as admits guilt upon the part of the defendant for any purpose. It merely tends to refute the testimony of the prosecution that the defendant did the act charged. It is evidence in the case which the jury are to judge the effect and value of, and the court had no right to comment upon it. Held, therefore, where the court instructed the jury, upon the trial of two defendants charged with the crime of murder, that an alibi was very often resorted to by guilty persons, as well as innocent ones, and one in which perjury, mistake, and deception are often committed, that it was error.

Held, further, that an instruction to the jury that the burden of proof was on the defendant to make out the defense of an alibi-the state having first introduced proof, and shown that the defendants were present at and committed the alleged fatal assault-was also error. ^[1]

Williams & Wood and P.H. D'Arcy, for appellants.

H.E. McGinn, for the State.

THAYER C.J.

The appellants, with Chung Ling, Yee Long, and Chee Son, were jointly indicted in the said circuit court for the crime of murder. They were charged in the indictment with having, on the 6th day of November, 1887, at said county, purposely, and of deliberate and premeditated malice, killed one Lee Yick. They were tried separately from the other defendants in the indictment, and found guilty of the crime as charged. The said Chung Ling, or Ching Ling, as he seems frequently to have been called, was also tried and convicted. An appeal was, however, taken to this court from the judgment of conviction in his case, and the judgment reversed. A report of the case will be found in 18 P. 844, which contains a statement of the facts of the affair. The appellants herein allege a number of grounds of error, which are presented for our consideration; but, as many of them go merely to matters of form, we do not deem it necessary to consider them. Two of the grounds of error relate to the admission of testimony, concerning certain papers, claimed to have been signed by the said Fong Long Dick; and another ground relates to an instruction given by the court to the jury as to the proof of an alibi. These are the only grounds we deem necessary to consider.

It appears from the bill of exceptions that the prosecution introduced as a witness a Mr. A.W. Witherell, the deputy-sheriff, who testified that he recognized a certain paper shown him; that he got it in jail; that he went down to the jail to let a Chinaman from Astoria see another Chinaman who was in jail; that as the Astoria Chinaman passed by the cell-window of a cell in which, it is claimed, the appellants were confined, he saw a paper handed to the Chinaman whom he took into the jail, through the bars. As the latter took the paper from the parties in the cell, he saw witness looking at him, and, when witness stepped up to take it from him, he tore it in two. Witness further testified that the persons inside did not see him when he took the paper from the Chinaman. Counsel for the state then offered the paper in evidence, which was objected to by appellants' counsel as incompetent and immaterial. The court overruled the objection, to which ruling appellants' counsel took an exception. Upon his cross-examination, witness testified that as he was passing along some one put that paper out of the cell. In answer to the question as to who it was, he stated "I do not know." He was then asked, "How many persons were in that cell?" to which he answered: "There may have been three or four persons in there, for all I know. I do not know of my own knowledge who was in the cell. It was dark in there." The following is a copy of the paper, as translated by a China witness: "Young Show and Foo Sing; both kind friends; again tell Low Hong, be my friend,--Found Deg, witness. Be sure testify that I and Lue Hung lived in same room two months. Not say longer. Tell that we are acquaintances. Tell it that time I came back to my room at half past seven or eight o'clock. Be sure and answer." The translation was then under the ruling of the court, given in evidence to the jury. Counsel for the state called as a witness one Johnson, who testified that he knew these Chinamen; that one of them handed him this paper; that the way he received it, it was in a package of cigarettes. The tobacco was taken out, and that was in, the same...