State v. Louie Moon

• Decision Date: 20 September 1911
• Parties: STATE, Respondent, v. LOUIE MOON, Appellant
• Court: Idaho Supreme Court

117 P. 757

20 Idaho 202

STATE, Respondent, v. LOUIE MOON, Appellant

Supreme Court of Idaho

September 20, 1911

DEFENSE-CORROBORATORY STATEMENTS - TRANSLATIONS - REASONABLE DOUBT-VIEW BY JURY-ABSENCE OF TRIAL JUDGE-INSTRUCTIONS.

(Syllabus by the court.)

1. A defendant in a criminal trial is not permitted by way of defense to show by conjectural inferences that some other person might have committed the offense for which he is on trial, or that some person other than himself is more probably guilty.

2. If it be charged that the testimony of a witness is a recent fabrication, and impeaching testimony is admitted for the purpose of showing statements contradictory to those given as a witness, the party calling such witness against whom such contradictory statements were proved may show by further testimony, other than the witness testifying that such witness had made statements consistent with those given as a witness, if such were made prior to the time fixed when it is claimed the testimony was fabricated.

3. An objection made that a witness making a translation of a foreign language into English is not competent and that his translation is not proper, is not well taken in the absence of any affirmative showing so indicating.

4. In defining the words "reasonable doubt," as used in the court's instructions, it is not error as a part of such definition to use the following language: "You are not at liberty to disbelieve as jurors, if from the evidence you believe as men. The oath which you have taken imposes upon you no obligation to doubt when no doubt would exist, if no oath had been administered."

5. Instructions given and refused examined and no error found therein.

6. When, after a criminal action has been submitted to a jury to consider their verdict, they are returned into open court and request to be permitted to view the premises in which the offense charged is said to have occurred, and the state and defendant consent that the court may at such time make an order as requested, held, that such defendant so consenting cannot be heard to assign the making of such order as error.

7. When, upon a view of the locus in quo being taken by the jury, they are not accompanied by the trial judge, the failure of the defendant to object in time to such fact thereby defeats his right to complain.

8. The following portion of an instruction given to the jury by the court held to be incorrect: "And if a large majority of your number are on one side or the other of this case, the minority should consider whether their doubts are reasonable or whether they may not reasonably be mistaken."

9. Held, that the verdict is not contrary to the evidence.

APPEAL from the District Court of the Third Judicial District for the County of Ada. Hon. Fremont Wood, Judge.

Defendant was charged with crime of assault with intent to commit murder and from a conviction of assault with a deadly weapon appeals. Affirmed.

Affirmed.

Chas F. Koelsch, and E. J. Frawley, for Appellant.

It is always permissible for the defendant to show, if he can, that some third person did in fact commit the crime charged against him. (1 Wigmore, Ev., sec. 140, note 1; State v McLain, 43 Wash. 267, 86 P. 390.)

Instruction No. 12, given by the court to the jury, practically relieves the jury from the obligation of their oaths. (Siberry v. State, 133 Ind. 677, 33 N.E. 681.)

By instruction No. 14 the court, in effect, told the jury that the defendant's testimony should be weighed in the balance with the fact of the great interest he had at stake in the case. An instruction like this nullifies the object sought by constitutional and statutory provisions permitting a defendant to be a witness in his own behalf. (State v. Webb, 6 Idaho 428, 55 P. 892.)

Sec. 7878, Rev. Codes, prescribes the method of a view of the premises by the jury, but this is part of the trial, and is the taking of evidence. (State v. McGinnis, 12 Idaho 336, (342, 343), 85 P. 1089.)

Sec. 1119 of the Penal Code of California is almost identical with sec. 7878, Rev. Codes, and the supreme court of California has frequently held that proceedings had thereunder were part of the trial and constituted the taking of evidence. (People v. Bush, 68 Cal. 623, 10 P. 169; People v. Lowrey, 70 Cal. 193, 11 P. 605; People v. Yut Ling, 74 Cal. 569, 16 P. 489; People v. White, 5 Cal.App. 329, 90 P. 475.)

Other courts have held that a view of the premises is the taking of evidence. (Foster v. State, 70 Miss. 755, 12 So. 822; State v. Bertin, 24 La. Ann. 46; Nelson v. State (Tex. Cr.), 58 S.W. 107.)

If viewing the premises is receiving evidence, and is part of the trial of the case, it was error to permit the jury to view the premises after the case had been closed and in the absence of a motion to reopen the same, and no showing that the premises at the time of the view were in the same condition that they were in at the time of the alleged crime. (Mitchell v. Rowley, 63 Misc. 643, 118 N.Y.S. 751.)

If viewing the premises is part of the trial, and is receiving evidence, the judge of the court ought to have been present, and his absence is such error as alone entitles the defendant to a new trial. (People v. White, 5 Cal.App. 329, 90 P. 475; 17 Ency. of Law, 2d ed., 720; O'Brien v. People, 17 Colo. 561, 31 P. 230; Bateson v. State, 46 Tex. Cr. 34, 80 S.W. 88; Slaughter v. United States, 5 Ind. Ter. 234, 82 S.W. 732.)

The failure of defendant to object was practically extorted from him. (17 Ency. of Law, 2d ed., 721, note 4.)

Even though it could be shown that the defendant had positively consented to the absence of the judge during that part of the trial, such consent in a felony case is not binding on the defendant. (O'Brien v. People, 17 Colo. 561, 31 P. 230; Graves v. People, 32 Colo. 127, 75 P. 412, 2 Ann. Cas. 6; Slaughter v. United States, 5 Ind. Ter. 234, 82 S.W. 732.)

The giving of instruction specified as error No. 46 was urging the minority to give up their honest convictions as to the question of the defendant's guilt, and to agree with the majority. It urged an agreement and brought it about, against law and evidence. (People v. Engle, 118 Mich. 287, 76 N.W. 502; O'Neal v. Richardson, 78 Ark. 132, 92 S.W. 1117; St. Louis v. Bishard, 147 F. 496, 78 C. C. A. 62.)

D. C. McDougall, Attorney General, Chas. P. McCarthy, Prosecuting Attorney for Ada County, J. H. Peterson and O. M. Van Duyn, Assistants to the Attorney General, K. I. Perky and J. R. Smead, for Respondent.

The evidence of the threatening letters was properly excluded. It was too remote, under all the authorities, to be permitted to go in. (Greenfield v. People, 85 N.Y. 75, 39 Am. Rep. 636; State v. Fletcher, 24 Ore. 295, 33 P. 575; 12 Cyc. 399; Buel v. State, 104 Wis. 132, 80 N.W. 78; Crookham v. State, 5 W.Va. 510.)

Instructions Nos. 12 and 14 were proper. (2 Brickwood's Sackett on Instructions, secs. 2553, 2705; Barney v. State, 49 Neb. 515, 68 N.W. 636.)

No precise time for the view is fixed by the statute. It may be held even after the case has been submitted to the jury, if the defendant consents. (People v. Hawley, 111 Cal. 78, 43 P. 404; 13 Ency. of Ev. 969, note 62.)

Even in the absence of a waiver on the part of the defendant to the presence of the judge during the view, the presence of the judge is not necessary during the view, (State v. Hartley, 22 Nev. 342, 40 P. 372, 28 L. R. A. 33; 13 Ency. of Ev. 975, note 73.)

If it be the law that the judge should be present at the view, still that right may be waived, and was waived in this case, by the defendant's failure to request the judge to accompany the jury or to object to his absence or take any exceptions whatsoever thereto. (State v. Mortensen, 26 Utah 312, 73 P. 562; 13 Ency. of Ev. 975, note 95; People v. White, 5 Cal.App. 329, 90 P. 472; State v. Reed, 3 Idaho 754, 35 P. 706; Sasse v. State, 68 Wis. 530, 32 N.W. 849.)

WALTERS, District J. Sullivan, J., concurs. Ailshie, J., dissents.

OPINION

WALTERS, District J.

The defendant, Louie Moon, was charged jointly with two others by an indictment returned by the grand jury of Ada county of an assault with intent to commit murder, on or about the 16th day of January, 1910, in Boise City, upon the person of one Fong Sue. Upon trial the defendant Louie Moon, was convicted of an assault with a deadly weapon, and from a judgment of the court thereon he prosecutes this appeal.

It appears that said assault was committed between the hours of 6 and 7 in the morning of January 16, 1910, and by some person or persons who had secreted themselves in the home of said Fong Sue. The prosecuting witness testified that he had been absent during the night at a lodge meeting with certain of his countrymen, and upon returning to his residence at about the hour indicated, upon entering his home he was attacked and assaulted. He ran from the building to the police station and from there was taken to a local hospital for treatment. The defendant, under his plea of not guilty, offered testimony tending to prove an alibi and to account for his whereabouts other than at or in the proximity of the residence of the prosecuting witness at the time it is alleged the assault was committed.

Such other testimony as is necessary to an understanding of this decision is set forth hereinafter.

1. Defendant sought to show that there had been dissension and a division in a local Chinese colony, a Chinese woman being the promoting cause, said to be the wife of one Wong Gow, who appeared to have difficulty in maintaining possession of his wife, and that by reason of the interest and act of the prosecuting witness taken against Wong Gow, he had incurred his bitter enmity. Certain questions were propounded to the prosecuting...