People v. Lew Fat

THE COURT.

The appellant herein was convicted of murder in the first degree, his crime consisting in the alleged slaying of one Lum Bing, an elderly Chinese, in a building in Chinatown, in the city and county of San Francisco, on the afternoon of May 18, 1921. He appeals from the judgment following such conviction and urges several grounds of error upon his said appeal.

His first ground of alleged error is that the trial court erred in the admission of evidence of certain accusatory declarations made by the dying decedent in the presence of the arresting officers and of the defendant, and of the acts and conduct of the latter at the time such

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accusations were made. The first of these occurred within a few moments after the deceased had been shot and mortally wounded and after the defendant had been arrested within a short distance of the scene of the crime with a discharged and still smoking weapon in his hand. The arresting officer took the defendant into the presence of the wounded man and he testified that when the latter saw the defendant he pointed his finger at him and said in the English language, “That man shot me,” to which accusation the defendant made no • reply. A short time thereafter when the mortally wounded man had been taken to the Harbor Emergency Hospital, the defendant and an alleged accomplice were again brought into his presence and when asked by one of the arresting officers who shot him, the dying man pointed at the defendant and said in English, “That was the man.” To all of this evidence the defendant objected on the ground that it was not shown that the defendant understood the English language. He urges the same objection here, but the record before us does not sustain him in that regard. Prior to the introduction of the evidence thus objected to, a police officer had testified to having held conversations at various times with the defendant in English and to having received replies in that language. Another officer had also testified to numerous occasions in which he had spoken to the defendant in English and received replies from him in that language. There was also some testimony to the effect that during the trial of the cause the defendant and his attorney held conferences in the courtroom in the English language. This evidence brings the case fully within the rule laid down by this court in