State v. Lem Woon

• Citation: 57 Or. 482,107 P. 974
• Parties: STATE v. LEM WOON.
• Decision Date: 05 April 1910
• Court: Supreme Court of Oregon

107 P. 974

57 Or. 482

STATE v. LEM WOON.

Supreme Court of Oregon

April 5, 1910

Appeal from Circuit Court, Multnomah County; Earl C. Bronaugh Judge.

Lem Woon was convicted of murder, and he appeals. Affirmed.

On April 1, 1908, defendant, jointly with Yee Gueng, was charged by information with the crime of murder by killing Lee Tai Hoy on March 7, 1908, and upon a separate trial was found guilty of murder in the first degree, and appeals from a judgment thereon. The homicide was committed in a building at the corner of Fourth and Pine streets, in Portland, Or. This defendant, Yee Gueng, and Jo Ah Bong, lived in two rooms on the third floor of a building at the corner of Second and Oak streets, on the east side of Oak, being one block south and two blocks east of the place of the homicide. Defendant denied that he did the killing, and attempted to prove alibi. He also contends that his name is Lum Suey, and not Lem Woon.

John F Logan, Frank F. Freeman, Ralph E. Moody, and Henry E. McGinn for appellant.

Joseph J. Fitzgerald and Dan J. Malarkey, for the State.

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

Many of the assignments of error arise out of the fact that there is evidence tending to show that decedent, the two defendants and most of the witnesses are Chinese, and are members of a Chinese society known as the "Bow On Tong"; that before the killing there was trouble in the Tong, which had divided it into two factions; and that decedent was blamed for this trouble. Most of the Chinese witnesses for the state and the decedent belonged to what is referred to as the new faction, and most of those for the defense belonged to the old faction, and there was evidence tending to show that the killing was the result of the trouble between the factions. The trial was conducted principally by D.J. Malarkey, who appeared with the district attorney for the state.

The first assignment of error relates to the conduct of Mr. Malarkey in the cross-examination of Chin Lum, a witness for defendant, who belonged to the old faction of the Tong, lived in the same rooms with defendant, and testified for defendant upon his defense of an alibi. After some cross-examination as to what took place at those rooms, Mr. Malarkey asked: "Isn't it a fact that is a place where you keep a lot of knives and pistols and guns to kill people with?" This was objected to, and the objection sustained. The question was repeated in a different form, and an objection again sustained, and a third time it was asked in another form, and objected to. The objection was at first overruled, and the witness answered: "That place belong Bow On Tong, formerly Bow On Tong headquarters. Good many members come there to stay, and leave their things there. Don't know who belonged, because former time Bow On Tong been there." It appears that a box containing the weapons referred to in the question were on the clerk's desk, and were about to be presented by counsel, when the court adjourned until morning and reserved final decision for further

consideration. On reconvening court, the judge announced that he was not clear as to the admissibility of this evidence, and that the defendant should have the benefit of the doubt, and excluded the evidence. Thereupon, at the request of Mr. Malarkey, the jury retired, and in their absence there was further controversy in relation to the question, and the weapons were offered in evidence, but not in the presence of the jury, when the court said: "The introduction of the weapons under such circumstances might tend to prejudice the case of this defendant in the minds of the jury. Call the jury." It is not necessary for us to determine the relevancy of the matter sought to be adduced by the question and offer, as the objections were sustained. But the inquiry is whether asking the question, the presence of the box of weapons, and the statement were prejudicial and reversible error, without other ruling by the court or exception by defendant. The first reference to the trouble in the Bow On Tong was by the defense in the cross-examination of the state's witnesses Lee Shu and Gow Ying Yuen. It was also mentioned by decedent in his dying declaration as testified to by Lee Hueng and R.W. Wilbur, and also by defendant in his direct examination, and this question was asked evidently on the theory that the trouble resulting in the shooting was a Tong fight, and we see nothing in the facts or conduct of counsel to indicate that the question was asked in bad faith or from an improper motive. The mere asking of the question was not reversible error. In this connection may be considered assignment of error No. 6, relating to the conduct of Mr. Malarkey in asking defendant's witness Sam Ah Pye, "You and Won Jake Num have fixed up a good many Chinese jobs, haven't you?" which, upon objection, was withdrawn, and no ruling was asked or exception taken, and therefore no error was committed, although the asking of such a question should not be countenanced.

The second assignment of error relates to the scope of the cross-examination of Jo Bong, a witness for defendant, and the statements of Mr. Malarkey in relation thereto. His direct examination related only to what took place in his hearing at the hospital. Defendant's counsel had previously brought out in cross-examination of the state's witnesses and by defendant himself the facts disclosed as to the Bow On Tong, the division in it, and that the Chinese witnesses belonged to one faction or the other. It was evidently the purpose of the defendant to impress upon the jury that the killing of Lee Tai Hoy was the result of a feud in the Tong, one faction against the other, rather than a personal difficulty between the slayer and Lee Tai Hoy. This purpose is also disclosed by the effort of defendant to introduce the evidence of Mr. Lord and Sam Ah Pye as to the custom of the Chinese to seek revenge in such cases against any one in the opposing faction. Jo Ah Bong, as had already been shown by the state's evidence, was present when defendant and Yee Gueng were arrested in their rooms at the corner of Second and Oak streets, having the door to the rooms locked and barred, and refused to admit the officers, and, when they forced the door, they found Jo Bong and defendant Yee Gueng in the toilet and this defendant in the other room. And, after arresting Jo Bong and Yee Gueng, they discovered on the floor of the toilet a 41 colt's revolver loaded. Upon the cross-examination of Jo Bong, Mr. Malarkey asked: "Why didn't you open the door when the officers knocked?" Counsel for defendant objected to this question on the ground that it was incompetent and not cross-examination, whereupon Malarkey remarked: "Are you objecting to having this man who was down there tell what happened there? Can't I show that you tried to seal this man's lips who was there; that he was standing on guard at the door with a gun, preventing the police getting them; *** and I have a right to show the interest of this witness in this case and show that this witness whom you put upon the witness stand, and whom you fail to ask about what occurred at the time and place where he was present. I have a right to develop upon his cross-examination his interest in this defendant," etc. Defendant's counsel moved that "these remarks be stricken out with reference to murderers and everything else in this case, and the remarks about the man standing on guard at the door with a pistol." The reference to "murderers and standing guard with a loaded revolver" was stricken out. The question objected to was proper cross-examination, as tending to show the interest of the witness, and the aid he was rendering defendant and the objectionable parts of Malarkey's remarks were stricken out. We find no prejudicial error in this assignment. Thereafter the witness was cross-examined at length as to his conduct from the time he ate supper until the time of the arrest, about 8 o'clock, all of which was objected to as not cross-examination, and exceptions were saved. This examination tended to show his interest and may have had a bearing upon his credibility, and was within the state's privilege of cross-examination. It is said in State v. Mah Jim, 13 Or. 235, 10 P. 306, that "in a criminal case any question which tends to show a feeling or bias of the witness against the accused is competent." In State v. Olds, 18 Or. 440, 442, 22 P. 940, 941, it is said: "The state had the right, on cross-examination, to ask the witness anything that would show his interest in the result of the trial, and anything he did in aid of the defendant about the trial for the purpose of enabling the jury to properly weigh his evidence, and to intelligently pass upon his credibility." By section 695, B. & C. Comp., the presumption that a witness speaks the truth may be overcome by evidence affecting his motives. Section 716 provides that it is "within the discretion of the court to permit inquiry into a collateral fact, when such fact is directly connected with the question in dispute, and is essential to its proper determination, or when it affects the credibility of a witness."

At the close of the testimony of Tichenor, the pistol, which was found on the toilet floor, was admitted in evidence over defendant's objection, and this is assigned as error. The pistol does not appear to have been offered as in any way connected with the shooting of Lee Tai Hoy, but as incident to and connected with what transpired at the time the door was forced and the defendants and Jo Bong arrested, and we find no error in admitting it. Also, this evidence and that relating to the Bow On Tong, the trouble in it, the fact that defendants and decedent, as well as the witnesses, were members of it,...