People v. Ye Park

Sharpstein, J.: The first ground upon which it is contended that this judgment should be reversed is, that the Court erred in instructing the jury that if they found that the defendant and one Toy Ping were living together “as man and wife in meretricious union, that such union as a matter of law would not be sufficient to give defendant the right or power to control or restrain the acts and liberty or power of locomotion of said Toy Ping; that in such a union either the man or woman has a perfect right to go and come as he or she pleases, unrestrained by the other.” As an abstract proposition the correctness of what the Court said is not disputed. But the defendant’s counsel insists that there was no evidence that the defendant and said Toy Ping were living together “in a meretricious union,” and, therefore, it was error for the Court to state what their relative rights would be in case the jury should find that they were so living together. And it is claimed that the defendant’s case might have been prejudiced by instructions which were apparently based upon the assumption that there was evidence which, at least, tended to prove that such a union had existed between the defendant and said Toy Ping. As there was no such evidence, it is urged that the instructions were calculated to mislead the jury.

If the defendant would have had “the right or power to control or restrain the acts and liberty or power of locomotion of said Toy Ping,” if they had not been living together in a meretricious union, we could readily see that the jury might have been misled by the instructions referred to in this connection. But we do not understand that if the parties had not been living together in a meretricious union, that either would have had the right or power “to control or restrain the acts and liberty or power of locomotion” of the other, and, therefore, can not see that the jury could have been misled by said instructions.

The Court, doubtless, erred in charging the jury “that the Supreme Court of this State” had said “that assault to commit murder is the attempt to kill a person, coupled with the present ability to do so.” That instruction does not contain a full definition of the crime with which the defendant was [207]charged, but the Court, in another instruction given at the request of the defendant’s counsel, did give a correct and full definition of that crime. We think that the latter supplemented the former, and cured the error complained of.

The instruction “that a conflict of testimony on immaterial questions should not be considered ” by them without telling the jury what questions were immaterial, is objected to on the ground that it “left to the jury the question as to what was or was not an immaterial issue or question,” which was a question of law for the Court and not for the jury to determine. Conceding that the question was one of law, we are not prepared to say that the Court submitted such question to the jury.