People v. Wong Sang Lung

HARRISON, P. J.

Appeal from the judgment upon a conviction of the defendant of murder in the second degree.

The main question presented to the jury for its determination was the identity of the defendant with the person who committed the homicide—two witnesses testifying that the defendant was not the person who shot the deceased, and two that he was. . The dying declaration of the deceased, “I went to Spofford alley, and there Wong Lung shot me,” was also given in evidence. It was shown that Wong Lung is a common name among the Chinese, and that there were many Chinese of that name in San Francisco. At the close of the trial the defendant asked the court to give the jury the following instruction: “Identity of person is presumed from identity of name (but where there is evidence that there are in the neighborhood several persons of the same name this presumption does not prevail. In this ease if the evidence shows that there were several persons of the same name, to wit, Wong Lung, the identity of the defendant with the Wong Lung alleged to be referred to in the declaration of the decedent to Dong Tyng at the City and County Hospital is not presumed).” The court declined to give the instruction as asked, but modified it by striking out all included as above in parentheses, and instructed the jury: “Identity of person is presumed from identity of name.”

[223]

Penal Code, section 1127, requires the judge, in charging the jury, to state to them “all matters of law necessary for their information,” and by section 1093 (6) he is required, if requested by either party, to charge them “on any points pertinent to the issue.” Section 1127 authorizes either party to request the court to give any written charge which it may present, and if such charge is correct and pertinent the court is required to give it. If the instruction as requested is not a correct statement of the- law, either in part or as a whole, the court is not required to modify it, but may refuse it entirely. The court may, however, if it chooses, modify the instruction so requested, and give a portion and refuse a portion; but in so doing the instruction which is given must be a correct statement of the law and not misleading to the jury. The modified instruction becomes the court’s instruction, and if erroneous is subject to the same exception as if given without any request therefor.