State v. Park
| Decision Date | 02 July 1930 |
| Docket Number | 6682. |
| Citation | 289 P. 1037,88 Mont. 21 |
| Parties | STATE v. PARK. |
| Court | Montana Supreme Court |
Appeal from District Court, Madison County; Lyman H. Bennett, Judge.
Harry Park was convicted of murder in the second degree, and he appeals.
Affirmed.
Ike E O. Pace, of Whitehall, and M. M. Duncan, of Virginia City for appellant.
L. A Foot, Atty. Gen., S. R. Foot, Asst. Atty. Gen., and Frank E. Blair, Co. Atty., of Virginia City, for the State.
The defendant, Harry Park, has appealed from a judgment of conviction of murder in the second degree on which he was sentenced to a term of twenty years and a day in the state penitentiary, and from an order denying him a new trial.
Harry Park, a Korean, shot and killed a fellow countryman, K. S. Paik, on October 29, 1929, in the presence of a third Korean. H. D. Hong, on a ranch near Whitehall, in Madison county. It is contended that he shot in self-defense and that the evidence most unfavorable to defendant, at most, warranted a verdict of manslaughter.
Paik and Hong were partners in the operation of a ten-acre truck garden on a ranch owned by the Whitehall State Bank. They held a long term lease on the ten acres, but in 1929 made a poor showing and the bank had notified them that they would not be permitted to operate in 1930; the cashier had made tentative arrangements with Park to put in the garden in the spring, and had authorized him to commence plowing at that time. Up to the latter part of October, Park's wife had been employed by Paik and Hong as cook, and the Parks lived in a three-room house on the ten-acre tract with Paik and Hong, but the partners then dispensed with Mrs. Park's services and the Parks moved to another house on the ranch.
All of the parties had been acquainted and on friendly terms for four or five years and their relations remained friendly throughout the financial troubles of the partners and during the negotiations for the change in the operation of the truck garden. Two or three days prior to October 29, Paik packed up all of his belongings and went to Butte to seek employment. On the morning of October 29, Park and Hong hauled a load of potatoes to Whitehall. They were absent from the ranch several hours, returning by way of Piedmont where Park purchased a half gallon, and Hong a pint, of moonshine whisky. While Park and Hong were absent, Paik returned to the ranch bringing with him a half gallon of moonshine whisky. On his arrival at the Park residence, Mrs. Park told her husband of Paik's return and that he had made threats to kill Park and his wife, according to Park's testimony. Mrs. Park warned defendant not to go down to the other place. Shortly thereafter Paik and Hong came to the Park house and were invited in to dinner; the men all drank together in a friendly companionship and the partners returned to their house. Some hours later defendant placed a pistol in his belt, buttoned his coat over it and went down to the ten-acre tract for the purpose of removing the harness from his horses kept in a barn near the house in which Paik and Hong lived.
Defendant testified that, as he passed the window of this house, he saw Paik seated and heard him threatening to kill some one that night, but, on seeing him, Paik called to him to come in and have a drink. He accepted the invitation, entering the dining room; it was cold there and the others passed into the kitchen and invited defendant into that room, but he remained standing at the door. He testified that when he started to drink with them his wife appeared and attempted to dissuade him, repeating her warning that Paik wanted to kill him. Testifying as to what thereafter transpired, defendant stated that Hong made some complaint of his having started plowing before the partners had their crops out of the ground, and, applving a vile epithet to him, accused him of causing trouble for them, whereupon Paik, whom the defendant described as "too drunk," drew a gun, but, he says, Hong took the gun and put it in his pocket. He then states: "Then I just takeum gun-just I shootum; I don't want to kill either one, just make them scare." Defendant shot three times, the first high into the wall, the second struck Paik in the face, killing him instantly, the third struck the wall at a point two feet nine and three-fourths inches above the floor. Defendant's statement is that he was attempting to intimidate Hong who had a gun, although in his pocket, when Paik came forward after the first shot and sought to grab him; he then shot Paik. Defendant stated that at that time he forgot that Paik no longer had a gun. After shooting Paik, defendant told Hong, "If you move a hand I will kill you too," and backed out of the room and house.
Hong's testimony varied materially from that of the defendant. His statement is that Paik came up to the Park house just as he and Park arrived; everything was friendly; they all had dinner together and then he and Paik went to their house; Paik was not mad and made no threats that he heard; later Park came to the house and came in without invitation, accepted a drink offered by Paik, but remained standing by the back door through which he had entered. He testified that Park asked Paik whether he had made threats to kill him and told him that Mrs. Park had told him of the threats. Paik's reply, according to the witness, was: Hong testified that he then went into the kitchen but heard Paik say, "Look at that in my pocket, even I ain't got any knife, no gun at all; what you tell me that kind of talking all the time." He testified further that Paik had neither knife nor gun. After the above conversation Paik and Park entered the kitchen and, while Paik was standing by the table, without further conversation, Park drew his gun and fired the first shot, whereupon the witness fainted. He "woke up" a moment later as Paik fell to the floor. Park threatened him and he begged for his life, finally escaping from the house. He met Mrs. Park who asked him what had happened and why her husband had kicked her; he told her of the killing and went for the sheriff. Later this witness discovered two bullet holes in the top of his cap and an effort was made to show that they were made by the bullet that entered the wall near the floor and that Hong was lying in a position during his faint to have permitted this to have happened.
1. Whether defendant's version of what took place at the time of the killing would warrant the verdict returned, or not, is immaterial; the jury was entitled to disbelieve his testimony and accept that of Hong, if it saw fit, and that evidence was amply sufficient to warrant the verdict and judgment. On this conflicting evidence the court was justified in instructing the jury on murder in the first degree and murder in the second degree, as well as manslaughter.
2. The defendant predicates error upon the action of the court in permitting one of the state's witnesses to answer, over objection, the question: "Immediately after he [the defendant] informed you and the deputy that he had shot a man, he led you to the house you have described and to the dead body you describe?" Had this question been asked for the purpose of eliciting information, it would clearly have been objectionable as leading and suggestive, but the witness had already testified to the facts embodied in the question and it was in effect merely an observation by the county attorney in the course of questioning the witness on another matter. If the action of the court was error, it was nonprejudicial error, as the question elicited no new information.
3. While counsel for defendant was interrogating an expert witness on the effect of bullets fired into fabric, for the purpose of discrediting the theory that the defendant had shot at Hong, he asked the witness if he could account for the difference in the size of the two holes appearing in Hong's cap, whereupon the judge declared from the bench, "The court knows of his own knowledge that those holes have been tampered with, from the time that got into the possession of the officers until now." Apparently the fact revealed was what counsel was seeking to establish, for, without a suggestion of exception to the conduct of the court, counsel replied, "I would like to show that from this expert witness," and then reframed his question to include the statement made by the court. The county attorney intervened to question the judge as to the source of his knowledge, and the judge offered to give his statement under oath, but counsel for defendant was satisfied to have it "incorporated in the record" as it was given. As no objection was made or exception taken to the remarks of the court, we will not consider the propriety of the court's action.
4. Error is predicated upon the exclusion of evidence that Mrs. Park had certain bad scratches on her arms the day after the shooting. Counsel assert that Mrs. Park had an "encounter" with Hong just after the shooting, and that her arms were not scratched prior thereto, and that this evidence would have tended to show animosity on the part of Paik and Hong to Park and Mrs. Park. Mrs. Park died a few days after the shooting; from what cause is not revealed.
This was not a case where an attempt was made to prove other acts of the defendant at the time of the killing, as a part of the res gestæ, as in State v. Schlaps, 78...
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