People v. Ah Fung
Before: Cope
Synopsis
On the trial upon indictment for murder, the only witness for the prosecution who saw the transaction itself, testified, in substance, that he and Tung Hoy met a large number of their countrymen, Chinese, six of whom took them out into the chapparal, tied him, and then one of the Chinese struck Tnng Hoy on the head with a sword, another pierced him in the back, when he fell, and witness then escaped, and has never since seen him. The Court instructed the jury that if the evidence of this witness were true, defendants were guilty of murder in the first degree: Held, that the Court erred, that such instruction assumes the homicide, which was not proven by the witness.
Cope, J. delivered the opinion of the Court Baldwin, J. concurring.
On the trial of this case, the Court instructed the jury that if the evidence of one of the witnesses was true, the defendants were guilty of murder in the first degree. This witness did not see the deceased after the commission of the offense, and his testimony did not establish the homicide. It is contended that there was no controversy upon that point, and that the Court was correct in assuming the existence of the fact. We do not know, nor can we ascertain, what particular matters were controverted before the jury, but we think the Court had no right to assume the existence of any fact not expressly admitted.
It follows that the judgment must be reversed, and the cause remanded for a new trial.
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