State v. Foot You

• Decision Date: 19 April 1893
• Citation: 24 Or. 61,32 P. 1031
• Parties: STATE v. FOOT YOU.
• Court: Oregon Supreme Court

32 P. 1031

24 Or. 61

STATE v. FOOT YOU.

Supreme Court of Oregon

April 19, 1893

Appeal from circuit court, Multnomah county; J.C. Fullerton, Judge.

Foot You, having been convicted of murder, appeals. Affirmed.

Rufus Mallory, for appellant.

Geo. E Chamberlain, Atty.Gen., A.F. Sears, Jr., and W.T. Hume Dist.Atty., (McGinn, Sears & Simon, of counsel,) for the State.

BEAN J.

This is an appeal from a judgment of conviction of murder in the second degree, on an indictment charging the defendant with the crime of murder in the first degree, in shooting and killing one Ching Bo Qung on the 13th of April, 1892. The homicide occurred in a Chinese saloon, in the city of Portland, known as the "Temperance Saloon," in the back room of which was being conducted at the time a Chinese gambling game called "tan tan." That Ching Bo Qung was shot at the time and place mentioned, and that he afterwards died of the wound then inflicted, was not disputed at the trial, but the principal controversy was as to whether defendant did the shooting. The claim for the state was that the deceased went to this saloon for the purpose of collecting some money he claimed to be due him on a lottery ticket, and, passing into the "tan" room, demanded the money of the defendant who was conducting the game, but defendant refused to pay it whereupon deceased said he would have the defendant arrested, or the house "pulled," if he did not pay, and turned to go out. Just as he reached the front door, defendant, who had followed, fired two shots at him, one of which took effect in the back, inflicting a wound of which he died in a short time. The defendant claimed that he was not present at the time of, and did not do, the shooting, but that it was done by one Lou Choy, who was in charge of the game, to prevent the deceased from stealing and carrying away money that did not belong to him; that, at the time of the shooting, the "tan" game was being conducted by Lou Choy and two other Chinamen, and there were three bags of money and some loose change upon the table; that while the game was being played, the deceased entered the "tan" room, accompanied by three or four Chinamen, one of whom presented a pistol at the men in charge of the game, while the other rushed to the table and grabbed for the money, and deceased succeeded in getting one sack, which he started to carry away, when he was followed, and shot by Lou Choy.

On the trial, to maintain the issues on the part of the state, the district attorney offered in evidence two statements written by Mr. Simon, and signed by the deceased, purporting to be dying declarations by him of the circumstances attending the crime, and the identity of the person by whom it was committed. Before offering these papers, the state called witnesses who were present at the time they were prepared and signed, who testified that the deceased, at the time the papers were signed by him, was under a sense of impending death, and had no hopes of recovery; that the statements were made in Chinese, translated into English by a Chinese interpreter, reduced to writing by Mr. Simon, an attorney employed to assist in the prosecution, and then read and translated back to the deceased, who said they were correct, and signed them. The statements were then admitted in evidence, and read to the jury, against the objection and exception of the defendant. In view of the testimony and the statements aforesaid, it can hardly be claimed that they were not made under a sense of impending death, and were incompetent on that account; but the contention for appellant seems to be that the circumstances under which they were made were such as to render them so completely unreliable as to make them incompetent as evidence. It appears from the testimony that, two or three days after the shooting, Mr. Lafferty, assistant district attorney, and Mr. Simon, special counsel employed to assist in the prosecution, accompanied by a Chinese interpreter, visited the deceased at the hospital where he had been taken for treatment, for the purpose of obtaining a statement from him; that in reply to questions propounded to him by Mr. Simon, through the interpreter, the deceased made a statement of the circumstances of the shooting and the identity of the party, which was translated into English by the interpreter, and reduced to writing by Mr. Simon, and then read by Mr. Simon to the interpreter, and by him translated to the deceased in Chinese, who said it was correct, and signed it. In this statement the deceased said, he only caught a glimpse of the man who shot him, but thought he would be able to identify him. The following day the defendant was taken to the hospital for identification, and, in the presence of the same parties as on the previous day, and of the defendant, the deceased made and signed another statement, in the same manner as the first, in which he said that he recognized the defendant as the person who was conducting the game at the time he went into the "tan" room, and who followed him, and shot him in the back as he was about to pass through the front door. The person who acted as interpreter, at the time both of these declarations were made, was called as a witness on the trial, and testified that he correctly interpreted the questions propounded by Mr. Simon, and the answers of the deceased thereto, and also translated the statements, as reduced to writing by Mr. Simon, to the deceased, and that the deceased said they were correct; and Mr. Simon testified that he correctly reduced to writing the statements of the deceased, as interpreted to him, and correctly read them to the interpreter for the purpose of being translated to the deceased; so that it appears, from the evidence, that the statements as offered in evidence purported to be the dying declarations of the deceased. They were shown to have been made under a sense of impending death, and to be statements of the deceased as to the cause of his death, and the identity of the party who inflicted the fatal wound, and were properly admitted in evidence. 1 Greenl.Ev. § 161; People v. Bemmerly, 87 Cal. 117, 25 P. 266; Com. v. Haney, 127 Mass. 455; Turner v. State, 89 Tenn. 547, 15 S.W.Rep. 838; Jones v. State, 71 Ind. 66; State v. Kindle, 47 Ohio St. 358, 24 N.E. 485. The circumstances under which the declarations were made, the fact that they were the result of questions propounded by Mr. Simon, the absence of all cross-examination, the use of an interpreter, the fact that Mr. Lafferty saw proper to change interpreters, the presence only of friends and prosecuting officers, and of defendant being unrepresented by counsel, were all matters affecting the credibility and weight, and not the competency, of the evidence, and were for the consideration of the jury. 1 Greenl.Ev. §§ 159, 160; Kerr.Hom. 415. The competency of dying declarations is a matter for the court to determine, but after they have been admitted their weight and credibility become questions of fact for the jury, and they are entitled to such weight only as the jury may, under all the circumstances of the case, think proper to give them.

The next assignment of error is that one Gritzmacher, a policeman, being called as a witness, produced a pistol, two chambers of which were empty, which he testified he found upstairs in the building in which the shooting occurred, a short time after the shooting. Objection was made to the admission of the pistol in evidence, because it had in no way been connected with the defendant, but the court seems to have admitted it, but at a subsequent stage of the trial withdrew it from the jury, because of a failure to so connect it with the defendant, and refused to allow it to be considered or used as evidence on the trial. No exception was taken to the ruling of the court in admitting the pistol in evidence, and it may be doubted whether the question as to its competency is properly before us, but, however that may be, it seems only to have been admitted with the understanding on the part of the court that the state would, at some subsequent stage of the trial, connect it with the defendant, and, having failed to do so, it was withdrawn; so that no error prejudicial to the defendant was committed by the trial court. Smith v. Whitman, 6 Allen, 564; Pavey v. Burch, 3 Mo. 447; Com. v. Shepherd, 6 Bin. 283; Beck v. Cole, 16 Wis. 99.

It is also urged that the admission of proof by the state of statements made by its witness Quong Toy out of court inconsistent with his testimony as given on the trial, was error, but it nowhere appears in the record that any objection was made or exception taken, either to the admission of the testimony, or to that of the witnesses who were called to contradict him. On the contrary, counsel for the defense cross-examined the witness Quong Toy at great length, as well as the witnesses called to impeach him. We had supposed that, if any one question was settled in this state, it is that this is an appellate tribunal, constituted for the purpose of revising and correcting errors of law committed by the trial court, when that court has acted, and the act claimed to be error is disclosed by the record, ( Kearney v. Snodgrass, 12 Or. 311, 7 P. 309; State v. Tamler, 19 Or. 528, 25 P. 71;) and this we still think to be the law. If a party desires to raise a question in this court as to the competency of evidence offered in the trial court, or of any other supposed irregularity of that court, either of omission or commission, he must at the time make his objection, and thereby obtain a ruling of the court, and, if adverse, save an exception, and bring it here by a proper bill of exceptions. "It is very important," says Mr. Chief Justice Shaw, "that no objection to a verdict...