State v. Louie Hing

• Decision Date: 21 September 1915
• Citation: 77 Or. 462,151 P. 706
• Parties: STATE v. LOUIE HING.
• Court: Oregon Supreme Court

151 P. 706

77 Or. 462

STATE v. LOUIE HING.

Supreme Court of Oregon

September 21, 1915

Department 1.

Appeal from Circuit Court, Multnomah County; Geo. N. Davis, Judge.

Louie Hing was convicted of manslaughter, and he appeals. Reversed and remanded.

See also, Ex parte Jung Shing, 145 P. 637.

Louie Hing was indicted for murder in the second degree on account of the killing of Lum Fong. A trial resulted in a verdict finding the defendant guilty of manslaughter. It is related in the bill of exceptions that three Chinese witnesses, Seid Jan, Ju Foo, and Chin Sing, in support of the indictment testified that on the night of March 16, 1913, the defendant accompanied by another Chinese, entered a store conducted by the deceased at 81 Second street, in Portland; that, Louie Hing having asked Lum Fong for 5 cents worth of olives, the latter delivered the olives to the defendant, who then paid Lum Fong; and that the defendant shot Lum Fong when the latter was about to deposit the money in the cash register. The state also called a detective and captain of police, each of whom testified that diligent search had been made for the defendant until the time of his arrest. E. J. Kennedy, the assistant county jailer, declared that the defendant gave Gun Shing as his name, and refused to answer to the name of Louie Hing while in jail. P. Maloney and Tom Swennes, city detectives, deposed that the defendant gave Gun Shing as his true name when he was arrested. The court also received in evidence a paper, taken from the office of the clerk purporting to show that the defendant, when arraigned answered that his true name was Gung Shing. The defense called two Chinese witnesses, Lee Yin and Lee Jock, who testified that on the night of March 16, 1913, at the time of the killing, Louie Hing was in The Dalles, Or., where he had been for four or five days prior to that time. Lee Gin, a witness for the defendant, testified that at the time of the homicide Seid Jan was dealing fan tan in a gambling room which was separated from the place where Lum Fong was shot, and that Seid Jan could not have witnessed the killing. The defendant also introduced evidence which tended to show that at the time of the homicide a tong war was being waged in Portland between the Bow Leong Tong and the Hop Sing Tong, and that the deceased and some of the witnesses for the state belonged to the Bow Leong Tong, while the defendant and Lee Yin were members of the Hop Sing Tong. In rebuttal the state offered evidence tending to show that the general reputation of Seid Jan for truth and veracity was good. The bill of exceptions declares that there was evidence as already related, but does not affirm that there was no additional evidence. The defendant appealed from the judgment pronounced upon the verdict.

Leon Yanckwich and Jay Bowerman, both of Portland (Daniel E. Powers and Fulton & Bowerman, all of Portland, on the brief), for appellant. John A. Collier, Deputy Dist. Atty., of Portland (Walter H. Evans, Dist. Atty., and Joseph L. Hammersly, Deputy Dist. Atty., both of Portland, on the brief), for the State.

HARRIS, J. (after stating the facts as above).

The defendant excepted to the introduction of an uncertified paper which purports to show that, when arraigned, he stated his true name to be Gung Shing. E. P. Mahaffie, after stating that he was deputy county clerk, and as such had charge of the circuit court work, including the criminal business, testified that the paper was made up in the office of the county clerk and constitutes the clerk's memorandum, which is entered in the journal; that it had been the custom of the deputy clerk in the criminal department to make notes of what was done in a case, and afterwards to deliver the notes to the witness, who then drew the clerk's memorandum, which was not only used for making an entry in the journal of the court, but was also filed and became a part of the permanent record of the case. Mr. Mahaffie further testified that he had no recollection of being present at the time the defendant was caused to plead, but that the information contained in the paper was either received from the office of the district attorney or had been brought to him by another deputy clerk. The paper was not competent. The defendant was indicted under the name of Louie Hing. It is explicitly commanded by section 1466, L. O. L., that:

"If the defendant allege that another name is his true name, the court must direct the entry thereof to be made in its journal, and the subsequent proceedings on the indictment may be had against him by that name, referring also to the name by which he is indicted." The journal of the court, therefore, is made the judicial record and final memorial of what occurs upon the arraignment of an accused person who alleges that another name is his true name. A judicial record of this state, by the terms of section 752, L. O. L., "may be proved by the production of the original, or by a copy thereof, certified by the clerk or other person having the legal custody thereof, with the seal of the court affixed thereto, if there be a seal." If the journal contained no entry showing the arraignment, then quite a different question would be presented; but, in the absence of evidence to the contrary, it will be presumed that official duty was performed, and that the journal does in fact contain a record of the arraignment; and, furthermore, the evidence tends to show that an entry was actually made in the journal. An entry having been made in the book specified by section 1466, L. O. L., it necessarily follows that the journal is the original judicial record of the name given by the defendant when arraigned. The paper complained of was not competent evidence, because it was neither the original judicial record nor a certified copy of the original, but was only a writing which was used for the convenience of the clerk. Undoubtedly the paper, which pretended to recite what the defendant said when formally accused in open court with the crime of murder, carried more weight with the jury than the oral testimony of witnesses, because the writing had the semblance of an indisputable court record, while the oral statements of the jailer and detectives rested only upon human memory. The state was entitled to show by any available competent evidence that the defendant assumed a name different from his true name. The prosecution could have offered the journal of the court, or a certified copy; but the reception of the paper objected to was, on the record as written in the bill of exceptions, prejudicial to the substantial rights of the defendant.

The next assignment of error involves the testimony of W. E Gray, a clerk in the employ of the Merchants' National Bank, and of J. G. Burness, a teller in Ladd & Tilton's Bank. After telling the jury how long Seid Jan had transacted business with the banks mentioned, these two witnesses were permitted to testify, over the objection of defendant, that the general reputation of Seid Jan for truth and veracity was good. It will be remembered that Seid Jan swore that he saw Louie Hing shoot Lum Fong. The defendant did not offer any evidence concerning the reputation of Seid Jan for truth and veracity. The state contends that the evidence of Lee Gin, who testified that Seid Jan was dealing fan tan in a gambling room and could not have witnessed the homicide, constitutes an assault upon the character of Seid Jan which authorized the evidence objected to. It is provided in section 865, L. O. L., that evidence of the good character of a witness is not admissible in any action, suit, or proceeding, "until the character of such witness has been impeached"; and this statutory provision is only declaratory of the common-law rule which prevailed prior to its enactment. National Bank v. Assurance Co., 33 Or. 43, 52 P. 1052. In the case of Glaze v. Whitley, 5 Or. 165, it was ruled that evidence of good character is admissible whenever a witness has been impeached in any of the ways provided for in sections 863 and 864, L. O. L.; but that case was overruled by the decision in Sheppard v. Yocum, 10 Or. 402. To warrant evidence of the good character of a witness, there must have been evidence tending to impeach the character of that witness, and evidence of contradictory statements will not suffice. Sheppard v. Yocum, supra; Osmun v. Winters, 25 Or. 260, 35 P. 250; National Bank v. Assurance Co., supra. The testimony of Lee Gin directly contradicts Seid Jan; and, while the stories told by the two witnesses cannot both be true, still it is simply a case of one witness contradicting another. To permit the introduction of evidence of good character every time a witness is contradicted by an opposing witness would cause delay and multiply the issues in almost every controversy presented in court. The rule adhered to in most jurisdictions, and the one sustained by the logic of prior...