People v. Lee Ah Yute

Morrison, C. J.: On the trial of this case in the Superior Court, the defendant offered himself as a witness, and on his cross-examination was asked if he did not, on a former trial of the case, testify “that he (defendant) was, at a time mentioned, in the house of the deceased, talking with the deceased and with a woman named Ah Heong immediately prior to the shooting, and that while there he saw Lee Wing' look through the window?” The defendant denied that he had ever so testified, and for the purpose of contradicting him, the Chinese interpreter, Louis Locke, was called for the prosecution, and he was asked if the defendant did not testify in the manner stated. Objection was made to the question, on the ground that it was leading, and that the proper course was to ask the impeaching witness to state what the defendant did swear to on the former trial. • The Court overruled the objection, and it is claimed before us that the ruling was erroneous.

1. Speaking on this subject, a standard writer on the law of evidence says: “ So, where a witness is called to contradict another, who had stated that such and such expressions were used, or the like, counsel are sometimes permitted to ask whether those particular expressions were used, or those [96]things said, instead of asking the witness to state what was said.” (1 Greenl. on Ev., § 435.) To the same effect is the text of another high authority on this point: “ The witness having been asked on cross-examination if he had not used particular expressions, in order to lay a foundation for contradicting him, upon his denial, the, witness called to prove that he did use them maybe asked as to the particular words used from his brief.” (Stark. Ev. 216.)

In Edwards v. Walter, 3 Stark. 8, “ Scarlett, in cross-examination, asked a witness as to some expressions he had made, for the purpose of laying a foundation for contradicting him; the witness denied having used them. Scarlett afterwards called a person to prove that he had, and read from his brief. Abbott, C. J., held that he was entitled to do so.”

The impeaching witness was the Chinese interpreter, and he was the proper person to call for the purpose of proving what the defendant swore to in the Chinese language on the former trial, as was held by Department One of this Court in the case of The People v. Ah Yute, 56 Cal. 121. “ The interpreter or some other witness who heard and understood the language in which the statements of the defendant were made, should have been called to prove them.” (See also People v. Lee Fat, 54 Id. 527.)