State v. Yee Guck

• Decision Date: 08 February 1921
• Parties: STATE v. YEE GUCK.
• Court: Oregon Supreme Court

195 P. 363

99 Or. 231

STATE v. YEE GUCK.

Supreme Court of Oregon

February 8, 1921

Department 1.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Yee Guck, the defendant, with others, was indicted in Multnomah county for the crime of murder in the second degree committed by killing Chin Hong. Having been tried separately from his codefendants, he was convicted, and, being aggrieved at the result, appeals. Affirmed.

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

George Mowry and Samuel H. Pierce, Deputy Dist. Attys., and Dan J Malarkey, special prosecutor, all of Portland (Walter H Evans, Dist. Atty., and Samuel H. Pierce, Deputy Dist. Atty both of Portland, on the brief), for the State.

BURNETT C.J.

The affray resulting in the death of the deceased was part of a tong war between rival Chinese factions and was staged in the streets surrounding a city block in Portland bounded on the south by Flanders street, on the east by Sixth, on the north by Glisan, and on the west by Broadway. According to the story of the defendant, he and one of his codefendants known as Shee Fong were walking west on Flanders street when they came to the northeast corner of the intersection of Flanders and Sixth streets. About that time they saw members of a rival Chinese tong on the opposite side of the street. The defendant here claims that those on the west side of Sixth street began firing at him and his companion, Shee Fong. They immediately returned the fire, and during the ensuing fusillade they crossed Sixth street, where the defendant stopped and reloaded his pistol. He claims that at that moment he saw his companion, Shee Fong, running north on the west side of Sixth street, pursued by the decedent, and he himself immediately took up the pursuit of the deceased to prevent him from hurting Shee Fong. The three, according to his story, ran in that order west on the south side of Glisan street, Shee Fong in the lead, pursued by the decedent, and Yee Guck bringing up the rear. He claims that the deceased was shooting at Shee Fong. The race continued to Broadway, where there was a street car standing. According to the defendant's story, his companion, Shee Fong, ran to the right and west of the street car, while the decedent turned to the left or east of the car and ran south on Broadway. From the street car, south, the decedent was running away from the two defendants, Yee Guck and Shee Fong, but they continued in pursuit of him, shooting at him until they arrived at the southwest corner of the intersection of Broadway and Flanders streets, where the decedent fell dead.

There was testimony given to the effect that immediately afterwards Yee Guck ran111 west a short distance on Flanders street, but was arrested by a police officer about 30 feet away from the body of Chin Hong, and that his codefendant, Shee Fong, fled north on Broadway, retracing his steps, until he came to Glisan street, turned west to West Park street, and thence north, and was captured by a pursuing crowd of white men and brought back to where the policeman had Yee Guck in custody, all within a few minutes. It is also in evidence that several Chinamen were engaged in the fusillade on Sixth street near Flanders, but that only the three mentioned joined in the race west on Glisan street and thence south on Broadway to the spot where Chin Hong fell.

At the trial the state called Mr. and Mrs. Libby, husband and wife, who were eyewitnesses of the death of Chin Hong, and they described the occurrence and the actions of the defendant. On cross-examination it was developed that these witnesses had been interviewed by the district attorney, whose stenographer took notes of their statements and afterwards transcribed them. At a subsequent interview in the prosecutor's office, before the trial, this transcription was read to the witnesses. When this was ascertained on cross-examination the defendant's counsel demanded of the district attorney the production of the transcript for the use of the defense in cross-examination. Counsel for the state offered to produce it, provided the defendant would consent that it be read in evidence in full. The defendant excepted to the conduct of the counsel in making the offer, conditioned, as it was, that the whole document should be read to the jury. The court directed the jury to disregard the offer of counsel for the state and give it no effect.

The defendant further objected to the refusal of the court to compel the production of the writing for the defendant's use in cross-examination. Among the contentions of the state on this point is one based on the last clause in section 733, Or. L., reading thus:

"A public officer shall not be examined as to communications made to him in official confidence when the public interest would suffer by the disclosure."

Assuming, without deciding, that the conversation between the witnesses and the district attorney was privileged, it is a privilege of the officer--in this case the one in control of the prosecution. It is within his prerogative to waive the exemption embodied in the clause quoted. In offering the whole document for the jury's consideration he waived the exemption, and, moreover, was clearly of the opinion that the public interest would not suffer by submitting the transcription to the jury. This section therefore must be laid out of the case.

A proper conception of the situation is essential. The court was engaged in taking evidence at the trial. If the document in question had any evidentiary value, the defendant could have compelled its production by a subp na duces tecum served upon the individual having custody of it. It would seem also that section 533, Or. L., would be applicable in a proper case to the matter in hand:

"The court or judge thereof, while an action or suit is pending, may order either party to give the other, within a specified time, an inspection and copy, or permission to take a copy of any book, document, or paper in his possession, or under his control, containing evidence or matters relating to the merits of the action or suit, or the defense therein. * * *"

The power of the court under this section is clearly discretionary. The language is not mandatory. Moreover, the paper or document must contain evidence or matters relating to the merits of the action or suit, before the court even in its discretion can compel an inspection thereof by the adverse party. Discovery cannot be used as a mere exploring expedition. The paper here involved was not admissible as evidence in the case. The utmost that can be claimed for it is that it is a hearsay, unverified declaration of what the witnesses said in conversation with the prosecuting officer. The only possible way that those witnesses could be affected by the conversation would be to impeach them by asking if they had made declarations on that occasion in the presence of the officer and the stenographer inconsistent with their testimony at the trial. If they denied the statements appearing in the transcript in possession of the district attorney, that paper would not be competent in itself to impeach them. They had not subscribed it, nor, so far as appears in the testimony, had they authorized its making. In order to impeach them, the stenographer or some one else who heard the statements would have to be called. The stenographer heard what the witnesses said in the interview with the prosecutor. It is plain that the attorneys for the defendant could not compel the stenographer to converse with them and inform them about what the witnesses had said in that interview. By a parity of reasoning they cannot compel the officer to furnish them a transcript of what was said.

The only case cited by the defendant in support of his contention in this matter is People v. Becker, 210 N.Y. 274 104 N.E. 396. In that case an avowed accomplice of the defendant was called as a witness by the people. On cross-examination it was developed that he had entered into a written contract with the prosecuting officer for immunity from prosecution, provided he would testify in support of the indictment. It appears from the report of the case that he had also prepared and placed in the possession of the district attorney a written confession of his connection with the crime. He proved a reluctant witness in his statements about the terms of the contract, and there, as here, the defendant demanded an inspection of the contract and the confession, for use in cross-examination. But the court refused at first to compel their production. Later on in the same case, while another accomplice was on the stand under cross-examination, the defendant moved the court to direct the opening of certain depositions that had been taken in Arkansas, by which he proposed to contradict the witness after having called attention to his contrary statements; but this was refused. The Becker Case is not parallel with the present issue. Those depositions were original evidence in the case, while the memorandum made by the unsworn stenographer here does not come within that category. The contract for immunity signed by the witness and his own prepared statement possibly might be contradictory of his declarations on the witness stand, and so in certain conditions could be used in evidence. The unverified notes of the stenographer in the instant case would not, of themselves, be contradictory of the witnesses, and if the latter were to be impeached those who heard their contrary statements would, of necessity, be called to testify. The mere hearsay, unsigned, unverified transcript made by a private individual would not, of itself, be competent for...