State v. Lu Sing

• Decision Date: 19 March 1906
• Citation: 85 P. 521,34 Mont. 31
• Parties: STATE v. LU SING.
• Court: Montana Supreme Court

85 P. 521

34 Mont. 31

STATE v. LU SING.

Supreme Court of Montana

March 19, 1906

Appeal from District Court, Gallatin County; W. R. C. Stewart Judge.

Lu Sing was convicted of murder, and he appeals. Affirmed.

J. L Staats, for appellant.

Albert J. Galen, Atty. Gen., and E. M. Hall, Asst. Atty. Gen., for the State.

HOLLOWAY J.

Lu Sing was convicted of murder of the first degree, and appeals from the judgment and from an order denying him a new trial.

1. It is contended by appellant that the information does not charge any higher offense than murder of the second degree and therefore does not support the judgment. The information charges that the acts by which the homicide were committed were done "feloniously, willfully, and of his [defendant's] deliberatedly premeditated malice aforethought." The word "deliberatedly" is used repeatedly instead of "deliberate," as employed in the Code. Pen. Code, § 352. It is urged that the word "deliberatedly" is wholly meaningless, and without some appropriate word importing deliberation the information does not charge murder of the first degree, and that this question may be raised in the Supreme Court for the first time. So far as the question of procedure is concerned, we think appellant is correct. Territory v. Young, 5 Mont. 242, 5 P. 248; Territory v. Duncan, 5 Mont. 478, 6 P. 353. But we are not satisfied that by reason of the poor spelling-the mere insertion of the letter "d" between the letter "e" and the letters "ly" of what was evidently intended to be the word "deliberately"-the information is rendered fatally defective as one charging murder of the first degree; for, even assuming that it is necessary to allege the facts which distinguish murder of the first degree from murder of the second degree, in order to sustain a conviction of murder of the first degree, still we think that no one could have been misled as to the meaning of this information. The authorities are practically unanimous in holding that an error of this character will not vitiate the information. Lefler v. State, 122 Ind. 206, 23 N.E. 154; Terrell v. State, 41 Tex. 463; State v. Williamson, 43 Tex. 500; State v. Smith, 63 N.C. 234; State v. Myers, 85 Tenn. 203, 5 S.W. 377; 12 Cyc. 761. Furthermore, sections 1842 and 2600 of the Penal Code provide:

"Sec. 1842. No information or indictment is insufficient, nor can the trial, judgment, or other proceedings thereon be affected by reason of any defect or imperfection in matter of form which does not tend to the prejudice of a substantial right of the defendant upon its merits."

"Sec. 2600. Neither a departure from the form or more prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right."

If the word "deliberately" had been used, the information would not have been couched in the most elegant English, but the objection now made could not have been urged seriously; and, while the evident purpose of the pleader was to use the word "deliberately," we think the mere misspelling of it does not render the information defective. "When the context and subject-matter are taken into consideration, the word intended to be used cannot be misunderstood." State v. Williamson, above. Under a statute similar to the one now in force it has been held by this court that it is not necessary to allege that the acts done were done deliberately in order that the information may be sufficient to sustain a conviction of murder of the first degree. It is still held that allegations sufficient for a common-law indictment will be sufficient for an information. Territory v. Stears, 2 Mont. 324, approved in Territory v. McAndrews, 3 Mont. 158, and in State v. Metcalf, 17 Mont. 417, 43 P. 182. The same rule is also announced in People v. De La Cour Soto, 63 Cal. 165.

2. One Mar Quong, a Chinaman, was called as a witness on behalf of the state, but before testifying was tested as to his competency as a witness by defendant's counsel. It is now contended that upon the showing made, defendant's objection to the witness testifying should have been sustained. The examination of the witness related principally to his religious belief. He testified in the first instance that he knew the nature of the oath he had taken, but, after being cross-examined at some length, said that he did not. He said he could tell what he knew, and that what he would say would be true. He testified that he believed in the Christian religion and knew that the Christian God is a supreme being. He also stated that he did not know what kind of an oath is administered in the courts in China. Section 3161 of the Code of Civil Procedure provides: "All persons, without exception, otherwise than as specified in the next two sections, who, having organs of sense, can perceive, and perceiving, can make known their perceptions to others, may be witnesses. Therefore, neither parties nor other persons who have an interest in the event of an action or proceeding are excluded; nor those who have been convicted of crime; nor persons on accourt of their opinions on matters of religious belief; although, in every case, the credibility of the witness may be drawn in question, as provided in section 3123." The witness does not come within any of the exceptions noted in section 3162 as amended, or in section 3163, and was apparently competent under section 3161. We do not find any authority for applying the test sought to be applied in this case, namely, the ability of the person offered as a witness, to "tell the nature" of the oath administered to witnesses in the courts of this state. So far as this record discloses, there was not any attempt to show that the witness did not understand the obligation of his oath or the penalty for perjury.

3. E H. Williams, a policeman in the city of Bozeman, who arrested the defendant soon after the homicide was committed, testified for the state, over the objection of the defendant, to a part of a conversation which took place between himself and the defendant on their way to and at the city jail. The witness testified that the defendant spoke English very poorly, and that he could not understand all that defendant said, but did understand the defendant's statement: "If I kill him, me good man. If I no kill him, no good." And again: "If me no kill him, me no good man; and if Tom Sing dead, me die happy." Defendant moved to strike out the testimony of the witness, on the ground that he had not understood all that the defendant said to him and ought not to be permitted to testify to a portion only. The motion was denied, and error is predicated on this ruling. In support of his contention counsel for appellant cites People v. Gelabert, 39 Cal. 663, decided in 1870, and State v. Buster, 23 Nev. 346, 47 P. 194, decided in 1896. The opinion in People v. Gelabert is very brief and cites no authorities in support of the conclusion reached. The reason given for the conclusion goes to the weight, rather than to the competency, of the evidence. 1 Greenleaf on Evidence, § 214, is cited, not, however, in support of the conclusion reached by the court, but in support of the oft-repeated declaration of courts and text-writers that evidence of extra judicial confessions should be received with great caution, because of the danger of mistake of the witness arising from his misapprehending what the defendant said, his unintentional misuse of a particular word; or, if the witness does not remember the exact words used by the defendant, his failure to express in his own language the meaning intended to be conveyed by the defendant; and, finally, because of the infirmity of memory. But all of this is directed to the weight, rather than the competency, of the evidence, and it is well for the trial court to warn the jury as to the caution to be exercised respecting this character of evidence (Code Civ. Proc.§ 3390, subd. 4) as indicated above, as was fully done by the trial court in this case. The case of State v. Buster is of no weight as a precedent, for the reason that, while the Supreme Court of Nevada holds that the evidence given by the witness Cozzens, who could not understand all the defendant said, was incompetent, the error in receiving it was, nevertheless, cured by the fact that other witnesses, who did fully understand what the defendant said, corroborated the testimony of Cozzens, apparently overlooking the fact that the jury might have believed the witness Cozzens, and refused absolutely to believe...