State v. Sing

• Decision Date: 21 October 1924
• Citation: 229 P. 921,114 Or. 267
• Parties: STATE v. SING.
• Court: Oregon Supreme Court

229 P. 921

114 Or. 267

STATE v. SING.

Supreme Court of Oregon

October 21, 1924

In banc.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Charlie Sing, also known as Louie Fat, was convicted of manslaughter and appeals. Affirmed.

This is a case of homicide. On June 21, 1922, the defendant, Charlie Sing, also known as Louie Fat, was indicted by the grand jury of Clatsop county, Or., charged with the crime of murder in the first degree, by purposely, and of deliberate and premeditated malice, killing one Seid You by shooting him with a pistol. Upon arraignment, defendant entered a plea of not guilty, and upon trial was convicted of manslaughter. Thereupon he interposed a motion for new trial, which was overruled. A judgment of conviction was entered against him from which he appeals, assigning many errors.

G. C Fulton, of Astoria, and John F. Logan, of Portland (Edward E Gray and G. C. & A. C. Fulton, all of Astoria, on the brief), for appellant.

Collier, Collier & Bernard, of Portland, amicus curiæ.

J. O. Erickson, Dist. Atty., of Astoria (Norblad & Hesse and C. W. Robison, all of Astoria, on the brief), for the State.

BROWN J.

The defendant herein was a stranger in the vicinity of Astoria, having arrived there from Seattle, Wash., only a short time before the homicide. Seid You, the deceased, had been an inhabitant of Astoria for a number of years. He was a Chinese grocer, engaged in business on the corner of Bond and Sixth streets, facing Bond. While in his store at about 8 o'clock on the morning of June 10, 1922, he was shot to death. He fell within five feet of the front door, and, a few minutes after the firing of the fatal shots, was found lying on his left side, in a pool of blood, gasping for breath. After the shooting he never spoke. On his body were found five gunshot wounds.

It is the theory of the state that Seid You was assailed by two of his countrymen, who shot him down and fled, and that the defendant was one of the two. The defendant admits that Seid You, while in his store, was shot to death by two assailants on the morning of June 10, 1922, but denies that he was one of the participants in the homicide. As stated in his brief:

"The defendant put forth but one defense, and one defense only; namely, that he was not one of the two men who committed the crime."

William Moore, a groceryman engaged in business at a point two blocks from the corner of Sixth and Bond streets, testified that a few minutes after 8 o'clock a. m. on June 10th he heard some shots; "sounded like three first, and then two." He further testified to the effect that O. D. Wilson, a salesman for a wholesale grocery company, was in his store at the time, and when they heard the shots they got into Wilson's automobile and hurried to the place whence came the pistol reports. They went to the front of the store, which had double doors constructed of wood and glass. The door was locked. Looking in they saw Seid You lying on his left side, in a pool of blood, near the door. They forced the door, found the Chinaman in the throes of death, gasping for breath and unable to speak. Later other witnesses arrived.

According to the testimony of John H. Reith, a dairyman, who shortly before the commission of the crime, on the morning of June 10th, was delivering milk on his regular route in the city of Astoria at a point in the vicinity of Seid You's store, he saw two Chinamen on the street, one tall and the other short, one of whom was carrying a paper sack. He testified that his attention was attracted to them on account of their movements, and that one of them was the defendant herein.

Oswald Johnson, a youth 15 years of age, was assisting Reith in the delivery of milk on the morning of the homicide. He testified that at about 8 a. m. on June 10th, while in the vicinity of the Seid You store, he saw two Chinamen, a tall and a short one, one of whom was carrying a paper bag, and identified the defendant as one of the two.

Mildred Ringsted, one of the principal witnesses for the state, testified that at the time of the trial she was, and for eight years prior thereto had been, a saleslady for the Donnerberg jewelry store; that she resided between Fourth and Fifth streets, on Bond street, Astoria; that she had been acquainted with Seid You, the deceased; that at about the hour of 8 o'clock a. m. on June 10, 1922, while on her way to work, when she reached a described point between Fifth and Sixth, on Bond street, she saw two men, one tall, the other short, coming down Sixth street, between Commercial and Bond, near the Seid You store and on the same side of the street; that she saw the men step to the front of the store; that the smaller of them held up a paper sack "right against the store door," and that she heard three or four shots fired; that--

"After the little fellow had done his shooting, the tall fellow took his gun from his pocket and fired twice."

She testified that she saw the smaller man throw his gun away; that--

"I told Mr. Entler where, and he found it; * * * and the tall one threw his gun in the alley * * * back of the store."

Witness testified that after the shooting she walked toward the corner on the opposite side of the street from the scene of the homicide and met George Olson; that--

"I told him that a Chinaman had been killed, so he said, 'Get in the car and we will follow them.' * * * We got in the car and followed the Chinaman two blocks up the street."

She testified that as they passed the Chinaman in the machine, he looked at them and she saw his face; that he was the tall one, the defendant on trial, and that she did not know what became of the shorter man.

William Sjoblam, a laborer, residing at 108 Astor street, Astoria, and engaged in piledriving and dock work, testified that about 8 a. m. on June 10, 1922, he was walking uptown; that when he reached a point between Fifth and Sixth streets he saw two Chinamen, one short and one tall, coming North on Sixth street near the Seid You store; that the short man had a parcel in his hand; that--

"The smaller fellow, he went up to the door, and the first thing I hear he started to shoot."

Witness testified that the man fired three shots through the door, and that he saw the defendant there at the same time; that--

"Why, he (defendant) stood close by him there, and when this small fellow got through shooting, why it seemed to me like he made kind of a motion to him, so he stepped up and took two more shots. * * *

"Q. This defendant here? A. That is the one.

"Q. You sure this is the man? A. That's the man.

"Q. How far were you away from him at that time? A. About 80 feet, I should judge. * * * When they were through shooting, why they turned toward us or where we were standing." Witness testified that he had a clear view of the defendant's face.

"Q Was there anybody else around there at the time you saw the shooting? A. Yes, there was Miss Ringsted. * * * He shot through on the right-hand side as you go in. * * * I heard five shots."

He testified that after the shooting the two men walked together a few steps and then separated and ran.

The defendant was arrested on the evening of June 10th, at Warrenton, a few miles from Astoria. When the arresting officers pressed him as to his movements during the day of the 10th he gave conflicting accounts as to his whereabouts on that day and as to where he roomed on the night of the 9th.

The defendant charges error because the jury viewed the premises where the deceased was killed, in the absence of the defendant, and likewise asserts error because a second view was had thereafter, at which time the defendant was ordered to accompany the jury.

Our statute provides:

"Whenever, in the opinion of the court, it is proper that the jury should have a view * * * of the place in which any material fact occurred, it may order the jury to be conducted in a body, in the custody of a proper officer, to the place, which shall be shown to them by the judge or by a person appointed by the court for that purpose. While the jury are thus absent, no person, other than the judge or person so appointed, shall speak to them on any subject connected with the trial." Or. L. § 133.

The purpose of the view, under our statute, is not to take or receive evidence, but only to enable the jury, with the aid of visible objects, better to comprehend the evidence adduced upon the trial and apply the testimony to the issues. State v. Suber, 89 S.C. 100, 71 S.E. 466; State v. Adams, 20 Kan. 311; Sasse v. State, 68 Wis. 530, 32 N.W. 849; Close v. Samm, 27 Iowa, 503; Shular v. State, 105 Ind. 289, 4 N.E. 870, 55 Am. Rep. 211.

In some jurisdictions there is a diversity of opinion concerning the right of the accused to be present at the view of the place where the crime was committed. However, that question is settled in this jurisdiction. The failure of the court to order the defendant to accompany the jury to the place where Seid You was slain does not constitute error. State v. Ah Lee, 8 Or. 214; State v. Moran, 15 Or. 276, 14 P. 419; State v. Chee Gong, 17 Or. 636, 21 P. 882.

"If the purpose of the view is to obtain evidence, the view is a part of the trial and the presence of the accused is indispensable, even where the statute is silent, as he has a constitutional right to confront the witnesses, to hear the evidence, and to observe the actions of the jury" Underhill's Criminal Evidence (3d Ed.) § 365.

In Molalla Elec. Co. v. Wheeler, 79 Or. 478, 154 P. 686, it was held by this court that, where a tract of land in litigation was viewed by the court or jury, a judgment must be rendered not on the view had, but on the evidence introduced as explained by the view.

In the case at bar there was no dispute as...