State v. Loon

• Decision Date: 15 June 1916
• Parties: STATE, Respondent, v. FONG LOON, Appellant
• Court: Idaho Supreme Court

158 P. 233

29 Idaho 248

STATE, Respondent, v. FONG LOON, Appellant

Supreme Court of Idaho

June 15, 1916

HOMICIDE-DYING DECLARATION-INTERPRETER AS WITNESS-ADDICTION OF WITNESS TO USE OF DRUGS-ADMISSIBILITY OF EVIDENCE TO SHOW CREDIBILITY OF WITNESS-CROSS-EXAMINATION-HEARSAY.

1. Where the victim of a homicide was a Chinaman unfamiliar with the English language, and his purported dying statement was interpreted by a Chinese interpreter and taken down in shorthand by a stenographer, evidence of the fact that the interpreter was addicted to the use of opium or other drugs was competent for the purpose of showing the mental balance of such interpreter and his capacity to remember the questions that were propounded by the prosecuting attorney through him to the deceased and the deceased's answers thereto, as the admissibility of such purported dying declaration depended on the truthfulness and accuracy of the interpretation of such questions and answers.

2. Great liberality should be allowed by the trial court in the cross-examination of an interpreter touching the extent of his addiction to the use of opium or any other narcotic which is well known to impair the intellectual faculties and reduce the capacity of an individual to remember and correctly relate incidents, as well as to morally pervert him and destroy the sanctions of truthfulness on the part of a witness.

3. The habitual use of opium, morphine, cocaine or other like narcotics, which inevitably tend to impair the mind, destroy the memory and pervert the moral character of a witness, may be shown for the purpose of affecting his credibility or the weight that should be given to his testimony, but is not ground for the exclusion of his testimony unless it satisfactorily appears that he was under its influence to such an extent that his intellect was unbalanced when examined as a witness.

4. Where a witness is offered to testify to the statements of another person spoken in a language not understood by such person but translated for him by an interpreter, such witness is not qualified to testify, because he does not speak from personal knowledge, and the interpreter, or some other person who heard and understood the language in which the testimony was given, is the only competent witness to such statements.

5. Where a purported dying declaration contains such statements as: "I don't know whether I am going to die or not but I think I have only one chance out of a hundred that I will live," and "In making this statement I do so in fear that I may die, but I don't know whether I will die or not," and at the request of the prosecuting attorney a final clause is added to the statement as follows "I now sign this statement and again say that the facts therein are true and that I make the same under the fear and belief that I will die," such final clause not appearing to have been the voluntary statement of the deceased, the declaration is not admissible as a dying declaration, since it does not satisfactorily appear that it was made under a sense of impending death or that the deceased had given up all hope or expectation of recovery, and the admission of such dying declaration by the trial court is reversible error.

[As to incompetency of witness through insanity, intoxication or loss of memory, see note in 35 Am.Rep. 291]

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.

Prosecution for murder; conviction of manslaughter. Appealed. Judgment reversed.

Judgment of the trial court vacated; and cause remanded, with instructions.

Perky &amp Brinck, for Appellant.

When a witness is presented by a party in an action, the question as to that witness' capacity to make accurate observation, to receive accurate impressions and to retain such impressions in his memory, as well as his power and inclination to truthfully relate what has taken place, are all subjects which necessarily affect the credibility of the witness.

And if the witness by reason of the habitual use of a narcotic has brought himself to a condition where his impressions are not to be trusted and his dreams have become indistinguishable to his mind from the realities surrounding him, such fact should be brought to the attention of the jury. (2 Wigmore on Evidence, sec. 934, citing McDowell v. Preston, 26 Ga. 528, 535; People v. Webster, 139 N.Y. 73, 34 N.E. 730; State v. Robinson, 12 Wash. 491, 41 P. 884.)

The distinction between showing such habit for the purpose of affecting the witness' credibility and for the purpose of excluding his testimony is apparent. (1 Rice on Evidence, p. 625.)

The right to impeach a witness by cross-examination is universally recognized. (Paxton v. State, 114 Ark. 393, 170 S.W. 80.)

It is permissible on cross-examination to interrogate a witness as to matters affecting his credibility. (State v. Madden, 170 Iowa 230, 148 N.W. 995; Burge v. State, 73 Tex. Cr. 505, 167 S.W. 63; Fountain v. Connecticut Fire Ins. Co. (Cal. App.), 117 P. 630; Hayden v. Commonwealth, 140 Ky. 634, 131 S.W. 521.)

It must be shown that the declarations of deceased were made under a sense of impending death before admitting them in evidence. (21 Cyc. 1026, note 49; United States v. Woods, 4 Cranch C. C. 484, F. Cas. No. 16,760; Brennan v. People, 37 Colo. 256, 86 P. 79; Fuqua v. Commonwealth, 24 Ky. Law, 2204, 73 S.W. 782; Joslin v. State, 75 Miss. 838, 23 So. 515; State v. Vaughan, 152 Mo. 73, 53 S.W. 420; Lyles v. State, 48 Tex. Cr. 119, 86 S.W. 763; State v. Brumo, 153 Iowa 7, 132 N.W. 817; People v. Smith, 164 Cal. 451, 129 P. 785; People v. Cassesse, 251 Ill. 422, 96 N.E. 274; Bilton v. Territory, 1 Okla. Cr. 566, 99 P. 163.)

A dying declaration is only admissible as to the circumstances of the transaction itself which results in the death of the declarant, and any self-serving statements must be excluded. (Patterson v. Commonwealth, 114 Va. 807, 75 S.E. 737; Underhill's Cr. Ev., 2d ed., sec. 108.)

J. H. Peterson, Atty. Genl., T. C. Coffin and Herbert Wing, Assts., and R. L. Givens and E. P. Barnes, for Respondent.

Under the facts surrounding the making of the dying declaration and the substance of the same shown by its contents, the statement was properly admitted, and there was no error in admitting the same. (State v. Roberts, 28 Nev. 350, 82 P. 100; 1 Greenl. Ev., 13th ed., sec. 158; State v. Boyland, 24 Kan. 186; Jones v. State, 71 Ind. 66; Dumas v. State, 62 Ga. 58; People v. Yokum, 118 Cal. 437, 50 P. 686; People v. Ramirez, 73 Cal. 403, 15 P. 33; Wharton's Homicide, sec. 621; People v. Farmer, 77 Cal. 1, 18 P. 800; State v. Wilmbusse, 8 Idaho 608, 70 P. 849; State v. Yee Wee, 7 Idaho 188, 61 P. 588; People v. Bemmerly, 87 Cal. 117, 25 P. 266; Snell v. State, 29 Tex. App. 236, 25 Am. St. 723, 15 S.W. 722.)

It clearly appears that the deceased had no hope of recovery, and that the proper foundation was laid for the introduction of the dying declaration. (People v. Crews, 102 Cal. 174, 36 P. 367; Wigmore's Ev., sec. 1442.)

The fact that it was not in the exact language of the declarant would not render it inadmissible. (State v. Baldwin, 15 Wash. 15, 45 P. 650.)

Another exception to the rule that self-serving declarations are inadmissible is to be found in the reception of a party's declarations as to his physical or mental condition, when such are in controversy. (Wharton's Criminal Evidence, secs. 272, 693; Underhill on Criminal Evidence, sec. 99.)

Unless it is shown that the witness is under the influence of the drug at the time such witness is testifying or at the time the events were observed, such testimony is entirely of a collateral nature, and therefore inadmissible. (Botkin v. Cassady, 106 Iowa 334, 76 N.W. 722; State v. King, 88 Minn. 175, 92 N.W. 965; State v. Gleim, 17 Mont. 17, 52 Am. St. 655, 41 P. 998, 31 L. R. A. 294.)

Proof of independent collateral and distinct offenses is admissible only upon the question of intent. (Wharton's Crim. Ev., sec. 475.)

BUDGE, J. Sullivan, C. J., concurs, MORGAN, J., Concurring Specially.

OPINION

BUDGE, J.

Fong Loon by information filed by the prosecuting attorney of Ada county on August 28, 1913, was charged with the crime of murder, in the killing of one Fong Chung at Boise, on July 21, 1913. He entered a plea of not guilty and the cause was tried before the court and jury, resulting in the jury finding him guilty of manslaughter. He was sentenced to serve a term of imprisonment in the state penitentiary of not less than five nor more than ten years. A motion was made for a new trial and overruled. This is an appeal from the order of the court denying the motion for new trial and from the judgment.

Forty-three assignments of error are made by appellant. These assignments are directed in the main to alleged errors of law committed by the court in ruling upon the admission and exclusion of evidence and upon the argument of counsel for the state, the giving and refusing of certain instructions, and the insufficiency of the evidence to sustain the verdict. In addition to these assignments of error, appellant makes the general assignment that the court erred in overruling his motion for a new trial, and in making and rendering its judgment upon the verdict.

We have carefully examined the transcript, the briefs of counsel, and the numerous authorities cited by counsel for the state and for appellant. From this examination we have reached the conclusion that it will not be necessary to discuss each and all of the numerous assignments of error relied upon by appellant in this case. But we will confine our discussion largely to the rulings of the court in the admission of evidence, which will include what, to our minds, is the most important question...