State v. Wong Wen Teung

• Decision Date: 25 January 1921
• Citation: 99 Or. 95,195 P. 349
• Parties: STATE v. WONG WEN TEUNG.
• Court: Oregon Supreme Court

195 P. 349

99 Or. 95

STATE v. WONG WEN TEUNG.

Supreme Court of Oregon

January 25, 1921

Department 1.

Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

Wong Wen Teung was convicted of murder in the second degree, and he appeals. Affirmed.

Defendant Wong Wen Teung, was indicted for the crime of murder in the second degree for shooting and killing one Joseph Gue on March 27, 1917, in Multnomah county. He was tried by the court and a jury, resulting in a judgment of conviction on June 27, 1917, and appeals.

The evidence produced at the trial indicated that Joseph Gue was the proprietor of an oyster house located on the south side of Madison street, between Second and Third streets, in the city of Portland, the premises being known as No. 250 Madison street. Madison street runs in an easterly and westerly direction, and is crossed by both Second and Third streets the latter being one block west of the former. Jefferson street runs parallel to, and one block south of, Madison street, and is likewise crossed by Second and Third streets. At approximately 8 o'clock on the evening of March 27 1917, Joseph Gue and one of his employés, Tony Maravitch left the oyster house before mentioned, and while Joseph Gue locked the door thereof Maravitch proceeded to crank a twoseated Ford automobile belonging to Gue and which for some time previous thereto had been standing in front of the oyster house, facing in an easterly direction. Maravitch thereupon took his place on the left side of the front seat of the automobile, preparing to drive the same, and Joseph Gue seated himself beside Maravitch. As the latter started the automobile in motion an exclamation from Joseph Gue caused Maravitch to look towards the sidewalk alongside the automobile, and at that time he saw defendant take a gun from his pocket and discharge the same into the automobile. A number of shots were fired from the south side of the automobile, and after a brief interval a number from the north side. Maravitch brought the automobile to a stop near the southwest corner of Second and Madison streets. The shooting resulted in the death of Joseph Gue and in the wounding of Maravitch.

The evidence adduced further purported to disclose that prior to the shooting a small runabout automobile had been standing on the south side of Madison street near the intersection of Third street, and defendant was seated therein apparently awaiting an opportunity to carry out his purpose; that when Joseph Gue came out of his place of business, as heretofore related, the runabout automobile was driven easterly on Madison street to a point near where the automobile of the deceased was standing; and that defendant then jumped from the running board of the runabout and committed the crime for which he stands convicted. After the shooting defendant ran south on Second street to Jefferson street, then ran up Jefferson street to Third street, and after running south on Third street some two blocks was captured by Ray C. Blackmar who had closely followed, and had not lost sight of defendant, from near the scene of the shooting.

The defense offered was that of mistaken identity.

Robt. F. Maguire, of Portland (Winter & Maguire and John F. Logan, all of Portland, on the brief), for appellant.

Dan J. Malarkey and E. F. Bernard, Deputy Dist. Atty., both of Portland (Walter H. Evans, Dist. Atty., of Portland, on the brief), for the State.

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

Upon the trial Mrs. Etta C. Parrish, a witness for the state, testified on direct examination that she saw a man, who in height, build, and movement resembled the defendant, shoot the deceased and then run around the corner. She did not positively identify the defendant. She did not see the face of the man who did the shooting. On cross-examination she was asked numerous questions tending to elicit testimony to show that most other Chinamen were of the size and build attributed by the witness to the man who did the killing. She was asked if it was not true that most Chinamen whom the witness had seen were of the size and build described by her, to which interrogatory she answered in the affirmative. Over the objection and exception of defendant, on redirect examination, after directing her attention to her former testimony, she was interrogated and answered as follows:

"Q. * * * As bearing upon that phase of your testimony, I want to ask you if it is not the fact that you looked at a number of Chinamen together very recently and for the purpose of seeing if you could pick out of them the one who corresponded in size and build and you knew him? A. Yes, sir. * * *

"Q. When and where was it you were exhibited a number of Chinamen together to see whether or not you could pick the one out of the number all together that corresponded in size and build and general appearance with the man who did the shooting? A. I saw a number together upstairs, but I simply picked him out as the one I saw, the first time, in jail when the detective brought him in."

The admission of this testimony is the first error assigned. It is clear from the testimony that the witness Mrs. Parrish only attempted to identify the defendant, not as the man who did the shooting, but as corresponding in size and build to that person. The plain purpose of the questions was to enable the witness Mrs. Parrish, by giving antecedent circumstances, to remove the inference left by the cross-examination. This is one of the very important purposes for which a redirect examination is permitted. State v. McGahey, 3 N. D. 293, 298, 55 N.W. 753. It appears from the testimony elicited upon cross-examination that the defense examined the witness Mrs. Parrish as to the size and build of Chinamen in general, and as to their comparison with the man whom the witness saw doing the shooting. The witness indicated that the description which she had given would fit most other Chinamen. This subject was a branching off from the direct examination and tended to leave the jury to draw an inference that there was nothing in the size and build and general characteristics of the man who did the shooting to identify him with the defendant more than with other Chinamen. It is difficult for a witness to particularly describe a person. In view of the nature and extent of the cross-examination, it was not error on redirect examination to show that when Mrs. Parrish saw a number of Chinese together she was able to pick out the one who corresponded in size and build to the man she had previously seen doing the shooting, in order to rebut the inference that all Chinamen fitted the description of the one who committed the crime. O.-W. R. & N. Co. v. S. P. & S. Ry. Co., 83 Or. 528, 163 P. 600, 989, Ann. Cas. 1918C, 991; Farmers' Bank v. Saling, 33 Or. 394, 397, 54 P. 190; Willis v. Horticultural Fire Relief, 77 Or. 621, 625, 152 P. 259; 40 Cyc. 2520 et seq.; 5 Jones on Evidence, § 871 et seq.; Com. v. Hughes, 183 Mass. 221, 225, 66 N.E. 716; Walker v. State, 136 Ind. 663, 667, 36 N.E. 356; Underhill on Criminal Evidence, p. 68, § 55.

2 Wharton's Crim. Ev. (10th Ed.) § 939, p. 1807, upholds the identification by a witness after arrest of accused as the person whom he saw commit the crime. The text is based upon Yarbrough v. State, 105 Ala. 43, 16 So. 758, and Beavers v. State, 103 Ala. 36, 38, 15 So. 616. In the latter case, which is similar to the one at bar, the identity of the defendant with the assassin was the matter in issue; his defense being an alleged alibi. After the witness Crowder had testified to the facts of the killing and the presence and flight of the man whom he saw run from near the scene of the murder and his recognition of the defendant as the man, he further testified, on interrogation by the state, that he saw the defendant the next morning after the killing, when he was in custody of the officers. Witness was then asked by the prosecution, "Did you recognize the man then under arrest as the man who had done the assassination and run off the evening before?" Over the objection of the defendant the witness answered in the affirmative. It was held there was no error in this ruling.

The authorities are somewhat conflicting in regard to the identification of the accused from an inspection of the person. Mr. Wharton says that--

"The prevailing weight of authority favors the relevancy of testimony obtained either by bodily exhibition or examination of accused." 2 Wharton's Crim. Ev. § 937, p. 1800.

It seems to us that the real objection to the testimony is as to its weight,

and not to its competency, although the challenge is not in that form. The defendant was positively identified as the man who committed the crime by Tony Maravitch, witness on behalf of the state, who was in the automobile with Joseph Gue when he was shot. The defendant was positively identified by Fred E. Folds, witness for the state, who was an eye-witness of the killing, as the person who did the shooting. The witness Folds also identified the defendant after he was arrested and brought back to the scene of the crime. The testimony tended to show that after the shooting the perpetrator ran south on Second street. Ray Blackmar, a witness for the state, testified that at the time of hearing the shots fired he was a short distance away in an automobile, and upon approaching the scene saw a man running on Second street; that he followed the man in his automobile for some little distance, keeping in sight of him, and apprehended him and brought him back to the place where the shooting occurred and turned him over to an officer.

The counsel for defendant cites and relies upon the case of State v. Houghton, 43 Or. 125, 71 P. 982, where the witness, who was an officer, was erroneously...