People v. Fong Ah Sing
Before: McKinstry
Synopsis
New Trial—Newly Discovered Evidence. —Where the evidence given on the trial is conflicting, newly discovered evidence merely cumulative will not warrant a new trial.
Practice—Juror—Non-residence—General Challenge for Cause—■ Exception. —A challenge to a juror on the ground that he is not qualified to serve by reason of his non-residence in the county in which the trial is had is a general challenge for cause, for the disallowance of which no exception is provided for by the Penal Code,
Criminal Law—Interpreter may be Witness. —A person appointed to act as an interpreter on the trial of a criminal action is not disqualified by reason of the fact that he was a witness for the prosecution.
Id. — Evidence — Question. — On the examination of a witness, counsel cannot insert in a question a statement as having been made by the witness which had not in fact been made by him.
Id. —Leading Question — Discretion. —It is within the discretion of the trial court to allow leading questions to be put to a witness on his examination in chief.
Id.—Murder—Dying Declarations—Written Statement—Parol Evidence. — In a prosecution for murder, where dying declarations of the deceased have been reduced to writing, parol evidence is admissible to show the condition of deceased when the declarations were made. Such evidence does not add to or contradict the written statement.
Id. — Entire Context of Declaration must be Given. —A statement in a dying declaration disconnected from the context, and contradictory to the general import thereof, is inadmissible in evidence unless the whole of the context is given.
Id.—Admissibility of Dying Declarations.—Dying declarations to be admissible must relate to the act of killing or to the circumstances immediately attending it and forming part of the res gestee.
Id. —Evidence—Immaterial Error. —The refusal of the court to permit a proper question to be answered is not a material error if the witness in ano'.her portion of his testimony fully answers the question.
Id. —Impeachment of Witness—Evidence of Hostility. —On a trial for murder, where the defendant is proved to have been previously arrested and charged with arson, a question as to who instigated the arrest is inadmissible in the absence of evidence or the offer of evidence connecting any witness for the prosecution with the arrest.
McKinstry, J. The defendant was found guilty of murder of the first degree, and his motion for a new trial was denied. He has appealed from the judgment and order.
The motion for a new trial was based on the ground, amongst others, of newly discovered evidence. The de[10]fendant has been twice tried and convicted, and the new evidence was discovered, as is alleged, after the ’ second trial. One of the affidavits is to the effect that, the defendant was known to the affiant; that affiant was present when the deceased was shot, and is quite certain the shot was not fired by. the defendant. Another affidavit corroborates many of the principal statements of the first. A third states certain circumstances tending to support the averments contained in the others.
Kwong "Ah Him, Leong Ah Ngow, and Harm Ma Look, witnesses for the prosecution, sworé at the trial that they saw the defendant fire the shot which killed the deceased. Hoong Ah Karng testified to the defendant’s retreat from the place where the shot was fired, and that he threw away a pistol, which the witness picked up. The deceased in her dying declaration identified the defendant as her slayer.
At the trial, Chum Sun, a witness for the defense, testified positively that the defendant was not the person who fired the shot; that such person was dressed differently from the manner in which other evidence tended to show the defendant was dressed on the evening when the killing occurred, and was about a head shorter than defendant. Edward Durham, called by the defense, testified that the person who fired the shot was smaller and shorter than the defendant. Both he and Chum Sun swore that the person who fired the shot fled toward Pacific Street; therein differing from other witnesses for defendant, and from the affidavits of the newly discovered witnesses, which state that he went in another direction. The defendant testified that he was not present when the shot was fired.
The evidence alleged to be newly discovered was strictly cumulative. It is well settled that in cases of conflicting testimony, newly discovered evidence merely cumulative will not furnish ground for new trial. Even if a case can be supposed where, although the evidence [11]
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