State v. Ching Lem

• Decision Date: 10 December 1918
• Citation: 91 Or. 611,176 P. 590
• Parties: STATE v. CHING LEM.
• Court: Oregon Supreme Court

176 P. 590

91 Or. 611

STATE v. CHING LEM.

Supreme Court of Oregon

December 10, 1918

In Banc.

Appeal from Circuit Court, Union County; J. W. Knowles, Judge.

Ching Lem was convicted of murder in the second degree, and he appeals. Affirmed.

The defendant, Ching Lem, was indicted jointly with Chin Ping Chin Borkey, Chong Bing, Louie Moon, and Ah Sam by the grand jury of Union county for the crime of murder in the second degree, for the killing of William Eng on March 13, 1917. The indictment charges that the defendants "did then and there, conspiring and acting together, feloniously purposely, and maliciously kill one William Eng by then and there pursuant to such conspiracy shooting him, the said William Eng, with pistols loaded with powder and ball." The details of the shooting, the time, place, and manner, and by whom Eng was killed, are fully set forth in the opinions of this court in the cases of State v. Chin Ping and State v. Chin Borkey, 176 P. 188, recently decided. In this case there is no claim or pretense that the defendant actually fired either of the shots which caused Eng's death. It is claimed on behalf of the state that the murder was the result of a conspiracy and that the defendant was one of the conspirators. A separate trial was had, and the defendant was found guilty of murder in the second degree. After judgment was entered, this appeal was taken.

There are 15 different assignments of error, the first of which is the refusal of the court to grant a change of venue. The twelfth is the admission into evidence of plaintiff's Exhibit No. E-5, and the fourteenth is that the trial court had no jurisdiction of the crime committed or of the defendant. All of such assignments are decided adversely to the defendant in the opinion of this court in the case of State v. Chin Ping. Other assignments are apparently waived leaving the failure to direct the jury to return a verdict in favor of the defendant, the giving of instructions Nos. 13 and 14 upon the question of flight, and the refusal to give defendant's requested instruction No. 8, and the sufficiency of the indictment, as the remaining questions to be decided on this appeal.

Colon R. Eberhard, of La Grande (Cochran & Eberhard, of La Grande on the brief), for appellant.

George M. Brown, Atty. Gen., and John S. Hodgin, Dist. Atty., and T. H. Crawford, both of La Grande (George M. Brown, of Roseburg, and John S. Hodgin and Crawford & Eakin, all of La Grande, on the briefs), for the State.

JOHNS J. (after stating the facts as above).

The vital question in this case is whether or not there was sufficient evidence to sustain the verdict. It appears from the record that at about 12 m. on March 13, 1917, on one of the principal streets of the city of La Grande, in front of the post office building, William Eng was purposely and deliberately killed by Chin Ping and Chin Borkey; that the murder was the result of a conspiracy; that Chin Ping and Chin Borkey went to the particular place from which the shots were fired, for the express purpose of killing Eng when he appeared on the scene; and that pursuant to such conspiracy they did kill Eng. There is no claim that this defendant committed any overt act, or that he actually fired either of the shots. It is strongly contended by his counsel that there is not sufficient evidence that the defendant conspired or acted with Chin Ping and Chin Borkey in the murder of the deceased, or that the latter was killed as the result of a conspiracy to which this defendant was a party.

The evidence shows that a 38-caliber bullet was extracted from the body of the deceased; that a 32-caliber bullet was taken from the ankle of Mrs. George; that those shots were fired by either Chin Ping or Chin Borkey; that immediately after the shooting all of the defendants ran away and disappeared within the Chinese buildings adjoining Adams avenue, where the shooting took place; that such buildings were at once surrounded by officers and numerous citizens called to their assistance; that after a diligent search during the whole afternoon, at about 5 p. m. of the same day Chin Ping, Chin Borkey, Ah Sam, Chong Bing, and this defendant were discovered in a pit underneath a bedroom in the rear of the Joss House, in which were also found three fully loaded revolvers and another with all but one of the shells fired, a mattress, and some quilts. There was a trapdoor on hinges leading into this pit, which was securely fastened from below, and entrance to the pit could be made only through this door, which was completely covered and concealed by a carpet upon which had been placed a commode and a sewing machine. There was no evidence in the bedroom of the existence of the trapdoor or the pit under it. It appeared from the testimony that the tacks which had been in the carpet were recently removed, that the trapdoor had been recently cut in the floor of the bedroom, and that the pit underneath the door had been freshly dug.

Adams avenue is 56 feet in width, and the Joss House, the store of Quon Sing & Co., and the Chinese laundry adjoin and front on that street, diagonally across from the post office building. The map offered in evidence shows that the pit was in the northeast corner of the bedroom, which was connected with and in the rear of the Joss House, about 175 feet from the drinking fountain in front of the post office, where the deceased fell. The evidence shows that, at and prior to the time of the shooting, the defendant, Ching Lem, was standing on the sidewalk in front of the Quon Sing store, about 135 feet from where Eng was killed; that immediately after the shooting he disappeared, and was not seen again until he was discovered in the pit with four of his codefendants.

No witness testified that Ching Lem was seen with a revolver and there is no evidence which tends to show that either Chin Ping or Chin Borkey had more than one revolver, but there is much significance in the facts that the defendant and four other Chinamen,...