State v. Gin Pon

• Decision Date: 06 February 1897
• Citation: 16 Wash. 425,47 P. 961
• Parties: STATE v. GIN PON.
• Court: Washington Supreme Court

47 P. 961

16 Wash. 425

STATE v. GIN PON.

Supreme Court of Washington

February 6, 1897

Appeal from superior court, Spokane county; Jesse Arthur, Judge.

Gin Pon was convicted of murder in the first degree, and appeals. Affirmed.

James E. Fenton, W. W. Saunders, and Alex M. Winston, for appellant.

J. W Feighan, for the State.

DUNBAR J.

The appellant was convicted, by the superior court of Spokane county, of the crime of murder in the first degree, and the judgment of death was pronounced, from which judgment this appeal is taken. The evidence is not brought here on the appeal, and the appellant relies on three alleged errors, viz.: (1) That the oath administered to the jury differed substantially from the form fixed by statute; (2) that the court, over the objections of the appellant permitted the Chinese witnesses to be resworn in the ordinary manner, after they had taken the oath which, according to their religion, they believed to be most binding upon their consciences; (3) that the instructions of the court were erroneous.

The oath administered to the jury was as follows: "You and each of you do solemnly swear that you will well and truly try Gin Pon, and true deliverance make between the state and the prisoner at the bar. So help you God." Section 68 p. 59, Laws 1891, provides that the jury shall be sworn or affirmed well and truly to try the issue between the state and the prisoner at the bar, whom they shall have in charge, according to the evidence. It is the contention of the appellant that there is a material and substantial difference between the form of oath prescribed by the statute and the oath administered to the jury in the trial of this cause, and several cases are cited to sustain this contention. The cases cited, however, are mostly old cases, and the decisions were rendered by courts which had not so liberally construed the criminal statutes of their respective states as has the court of this state. And, in addition, they were cases where either an exception was taken to the form of the oath at the time it was administered, or where the discrepancy had been called to the attention of the trial court on motion for a new trial. In the case at bar the first objection to the form of the oath is raised in this court. No exception was taken to it at the time, nor was it called to the attention of the lower court on a motion for a new trial, or in any other way. The motion for a new trial was based upon two grounds: (1) Error of law occurring at the trial, and excepted to at the time by the defendant; (2) that the verdict rendered herein is contrary to law and to the evidence. This motion was submitted without oral argument, so that it would have been impossible for the court from said motion to have had its attention directed to the alleged error in the administration of the oath.

We are aware of the rule governing the rights of persons charged with felonies, but we do not think that there was such a substantial variance from the form of the oath prescribed by the statute that the appellant was in any way injured by the omission complained of. It is true that the oath prescribed is to the effect that they shall try and true deliverance make between the state and the prisoner at the bar according to the evidence. But the jury could not but understand that their verdict was to be rendered upon the evidence produced in the case. There is no other method of trial prescribed by the law, and the same law which prescribes the form of the oath makes it the duty of the court to instruct the jury upon their duty in relation to the testimony, and the duty of the jury to obey such instructions, and it affirmatively appears in this case that the jury were so instructed. The court among other things, instructed the jury as follows: "Under the plea of not guilty the defendant is entitled to take advantage of every defense known to the law. Before you can find him guilty of any crime whatsoever in this information, every essential...