State v. Lem Woon

• Decision Date: 31 December 1910
• Citation: 57 Or. 482,112 P. 427
• Parties: STATE v. LEM WOON.
• Court: Oregon Supreme Court

112 P. 427

57 Or. 482

STATE v. LEM WOON.

Supreme Court of Oregon

December 31, 1910

On rehearing. Denied.

For former opinion, see 107 P. 974.

King and Slater, JJ., dissenting.

McBRIDE, J.

All the questions raised on this motion are fully discussed by Mr Justice Eakin in the original opinion in this case, which is reported in 107 P. 974, and we shall adhere to the views therein expressed.

Upon this motion counsel, however, lay particular stress upon the action of the court in admitting in evidence the pistol found by Officer Tichenor in the toilet at the time he arrested Yee Gueng and Jo Bong. Independent of the fact adverted to in the original opinion that the finding of the pistol was an incident of the arrest, and, therefore, admissible, we are of the opinion that upon well-known principles of law it was admissible on other grounds. The evidence of Lee Shu was direct and positive that he saw this defendant and Yee Gueng and another unknown Chinaman in the hall of the building of deceased, assaulting him, and that they each had pistols. Immediately after this, Gow Ying Yuen saw three Chinamen run out of the building, and recognized defendant and Yee Gueng as two of them. They were last seen by him going down Oak street in the direction of the building in which they were afterwards arrested, and only a short distance therefrom. In about half an hour the officers arrived at the room where defendants were arrested, and were refused admission. When they finally succeeded in breaking down the door, they found Yee Gueng and Jo Bong concealed in a dark closet, a loaded pistol, which gave evidence of having been recently discharged, lying on the floor of the closet, and Lem Woon in a bunk in the adjoining room.

Here is evidence tending to show three things: (1) That defendant was present at the scene of the shooting, in company with Yee Gueng, and that they and another Chinaman were engaged in a felonious assault, with firearms, on deceased. (2) That they fled together to the same building. (3) That a pistol which to all appearances had been recently discharged and reloaded was in the same closet where Yee Gueng had been concealed under circumstances which indicated to any reasonable mind that it was one of the pistols used by the conspirators in perpetrating the murder. Now it makes no difference which one of the three conspirators fired the fatal shot, if the evidence shows that all three were present, aiding and abetting therein. There is strong evidence tending to show that at least three or four bullets were shot from the pistol of Lem Woon, but several bullets are not accounted for, and not found, and the evidence of Tichenor is to the effect that the pistol found by him in the closet when he arrested Yee Gueng showed powder stains in the barrel, indicating its recent use. These circumstances show a criminal conspiracy between Yee Gueng, Lem Woon, and another Chinaman to murder the deceased. Nor does the admission of the pistol in evidence come within the rule that under most circumstances forbids the introduction of testimony as to acts or declarations of a conspirator after the termination of the conspiracy. The finding of the pistol and its condition was neither an act nor a declaration. It was a fact indicating that when Yee Gueng was seen with defendant, armed and assaulting the deceased, he was doing so with intent to murder, and assisted in its perpetration; and this intent and the consequences of it are imputable to the defendant, who as other evidence tends to show, was present, assisting in the commission of the crime. The pistol was no more an act or declaration of Yee Gueng than was the closet in which he was arrested. It was a mute, but forceful, witness, corroborating the testimony of Lee Shu that the defendant and Yee Gueng were armed at the scene of the shooting. It further tended to show that the purpose of their being there was homicidal, and, in some degree, that it had been used for the purposes of the murder.

It is significant that the defendant and Yee Gueng were never so far as the testimony discloses 20 feet apart from the time the homicide was committed until they were arrested. They were seen together armed at the scene of the shooting; they were seen running away together from the scene of the crime and they were arrested in the same building, a very short time afterwards, in rooms in close proximity to each other.

In a somewhat extended experience in criminal trials the writer has never seen a case of murder in the first degree more clearly and conclusively proved, and to seek now some mere pretext to set aside a verdict obtained after a fair and impartial trial would be to encourage crime and make a mockery of the law.

The petition is denied.

KING J. (dissenting).

At the time of the filing of the former opinion, I acceded with some hesitation to the conclusion there announced but after a careful re-examination into the errors assigned, and the law and evidence applicable thereto, I am unable to concur in the conclusion reached by the majority.

It will be remembered that Lem Woon at the time of his arrest, while in what is termed the same apartments as those occupied by his codefendant, was not one of the two Chinamen found hiding in the toilet where the pistol was discovered; the accused when arrested, being in an adjacent room, and there is no testimony tending to show that the .41 Colt's revolver, offered in evidence, was at any time in his possession or under his control, nor does it appear that Lem Woon was in hiding or attempting to escape detention further than that he was in a room adjoining the one occupied by his codefendant, and that the entrance to the entire apartments was barred, these rooms being the regular abode of the defendant and nine or ten others of his race. The revolver was admitted in evidence against him over the timely and proper objections of his counsel. It is well settled that subsequent declarations and acts, unless shown to be intimately and closely connected with the transaction, are not admissible against one accused of a crime. State v. Smith, 43 Or. 109, 71 P. 973; State v. Ching Ling, 16 Or. 419, 18 P. 844. The weapon was found in the place where Yee Gueng and Jo Bong were hiding, under such circumstances, and in such close proximity to them as to indicate its contemplated use by them in resisting arrest, if necessary, thus indicating to some extent at least that they were attempting to escape, from which guilt might be inferable, and so justify the revolver's admission in evidence against them, as held by us in State v. Yee Gueng (decided at this time) 112 P. 424. But, so far as serving to connect this defendant with the crime, the same rule does not apply. If admissible at all, it is only on the theory that it was a circumstance incident to the arrest, tending to show an effort to escape or in some manner to elude the officers. This assumption cannot be held, for the weapon was not in Lem Woon's possession, and the fact that it was found in an adjacent toilet, occupied by others, is too remote. In this connection it must be remembered there were nine other regular occupants of the apartments at the time; that is, the quarters occupied by them was a Chinese lodging house. The mere fact that the Chinese society had formerly met there at various times was insufficient to justify the admission in evidence of the pistol in question against any or all persons happening to be either a member of such society, or found to be rooming in the quarters, without in some manner connecting them also with the weapon offered in evidence. This revolver was in the same position, with reference to its admissibility, as was the box of firearms found, the admission in evidence of which the court refused. To admit the weapon, under the proof accompanying it, is to rely on an inference from an inference, and not a deduction from an established fact, and this character of evidence is expressly excluded by section 785, B. & C. Comp., which provides that the inference must be founded: "(1) On a fact legally proved; and (2) on such a deduction from that fact as is warranted by a consideration of the usual propensities or passions of men, the particular propensities or passions of the person whose act is in question, the course of business, or the course of nature." It will thus be seen that an inference could only be founded on a fact legally proved. No fact is here proved from which it may be inferred that this defendant owned the weapon in question, or in any manner possessed or intended to use it in resisting arrest. The circumstance of the door being locked indicating to some extent that he was evading the officers, and affording equal protection to all the occupants against arrest, might, if offered, have entitled the lock to admission in evidence; for, that fact once established, its purpose creates an inference as much against one occupant as another, the weight to be given thereto...