State v. Yee Gueng

• Decision Date: 31 December 1910
• Citation: 112 P. 424,57 Or. 509
• Parties: STATE v. YEE GUENG.
• Court: Oregon Supreme Court

112 P. 424

57 Or. 509

STATE v. YEE GUENG.

Supreme Court of Oregon

December 31, 1910

Appeal from Circuit Court, Multnomah County; Earl C. Bronaugh Judge.

Yee Gueng was convicted of murder, and he appeals. Reversed and new trial ordered.

In April, 1908, defendant, Yee Gueng, with Lem Woon, was jointly charged with the murder of Lee Tai Hoy. The homicide occurred as the decedent was ascending a stairway on the outside of the building where he lived, at the corner of Fourth and Pine streets, in Portland. The accused and Lem Woon, together with nine others of their race, lived in an apartment on the third floor of a building at the corner of Second and Oak streets about three blocks easterly from the scene of the crime. In April, 1909, defendant was separately tried, denying any participation in the affair and attempting to prove an alibi found guilty of murder in the first degree, and from a judgment sentencing him to death appeals.

Ralph E. Moody and Henry E. McGinn (John F. Logan and Frank M Freeman, on the brief), for appellant.

Dan J. Malarkey (George J. Cameron, Dist. Atty., and Joseph J. Fitzgerald, Deputy Dist. Atty., on the brief), for the State.

KING J. (after stating the facts as above).

The first assignment, requiring our attention, relates to the admission in evidence of the 41-caliber Colt's revolver, found about two hours after the shooting in a toilet where the accused and Joe Bong, at the time of their arrest, were found hiding. It is unquestioned that the only shots fired, and which caused the death of Lee Tai Hoy, were from a 38-caliber revolver. Testimony also tends to show that two Chinamen accompanied the one who did the killing, and that they were present when the assailant fired the fatal shots. The 41-caliber revolver objected to was practically found in the possession of the accused at the time he appeared to be eluding the officers, and was offered in evidence in connection with and as an incident thereto. Since the circumstances tend to show an effort to escape, or to resist arrest, less doubt exists as to the admissibility of this evidence than in the case against Lem Woon (107 P. 974), who, when arrested, was in a room adjoining that in which defendant was found, and who was not shown to have owned a weapon, or to have had one in his possession at or near the time of his arrest. We are of the opinion, therefore, that under the rule announced in State v. Wintzingerode, 9 Or. 153, the weapon found at the time of the arrest of the accused was properly admitted in evidence.

No error was committed in refusing the requested instruction, to the effect that the jury could take into consideration, as affecting his credibility, the fact, if established to its satisfaction, that the decedent did not believe in future rewards and punishments at the time of making his dying statement. Had declarant lived and taken the witness stand, this objection would not have been tenable, and, since dying declarations are admitted only on account of the exigencies of the occasion, so often discussed and so well understood, no reason exists in such a case for relying on any certain belief with reference to a future life, its rewards or punishments, any more than could be urged against a witness testifying in the presence of a jury. Every witness is presumed to speak the truth, and, under the law, the statements of a person made with full knowledge of impending death are entitled to the same presumption. The natural inclination of every sane person is to speak the truth on all occasions; exceptions thereto existing only by reason of some motive therefor. Testimony, relative to dying declarations, is admissible to show a motive for false statements; for example, such circumstances and incidents surrounding the last statements as may indicate a spirit of revenge or otherwise, a lack of ability to distinguish between persons or things, or incidents or statements tending to disclose doubts in the mind of the declarant, as to whether death is near at hand, etc., are admissible ( State v. Doris, 51 Or. 136, 94 P. 44, 16 L.R.A. [N.S.] 660), but a religious belief or want thereof, or lack of confidence in future rewards or punishments, as the case may be, is not an adequate basis for that purpose.

Error is also predicated upon the attempt to impeach the testimony of Lem Woon, who was called by the state, by the introduction in evidence of his statements made at his trial. The witness testified that on the night of March 7, 1908, he was arrested in the apartments where he, with Yee Gueng, was living; that he (Lem Woon) had been a member of the Bo On Tong for "7 or 8 years" in all; that 11 Chinamen made their headquarters in the same apartments where he had been stopping; and that he was acquainted with Lee Tai Hoy who was a member of the Bo On Tong. The witness was then asked by counsel for the state: "Now, was there prior to the day you were arrested a split or division in the district Bo On Tong of which you and Lee Tai Hoy were members?" This question was objected to as incompetent, irrelevant, and immaterial, and after some discussion and a ruling of the court to the effect that the witness could not be required to incriminate himself, but could otherwise answer, the response was: "I don't know. Q. Was there not shortly before the time you were arrested trouble in the Bo On Tong, causing two factions of the Bo On Tong? A. I don't know. I was at the canneries. I don't know about that. I am a laborer. Q. Is it not a fact that shortly prior to this day when you were arrested there was trouble in the Bo On Tong, causing its division into two factions, and that you belonged to what was known as the old party or the old faction, and Lee Tai Hoy belonged to what was known as the new party or the new faction? A. I don't know anything about it." The witness was then asked whether he remembered the circumstances of his testifying in his own behalf "when he was tried in this court last June," to which he answered in the affirmative. For...