State v. Quan Sue , 191 Iowa 144 ( 1920 )

Stevens, J.

The body of Sing Lee, a Chinese laundryman, was found, shortly after noon on .the 22d of February, 1917, in a basement occupied by him for a laundry and living apartments, under a two-story brick" business block at Story City, Iowa, with a bullet wound in his left temple. Death had ensued some time during the night preceding. The defendant, Quan Sue, who is the cousin of deceased, arrived in Story City on the morning of February 24th, and later was charged with the murder of Sing Lee, and early in March was apprehended in Butte City, Montana, brought back to Iowa, and tried, the trial resulting in a conviction of murder in the second degree.

The vital questions presented by appellant upon this appeal make an extended statement and analysis of the evidence necessary. The basement, which had been occupied by Sing Lee for a number of years, was entered from the north by a stairway leading into a small hall, and from the rear by a stairway opening into the furnace- and coal-room of the Pioneer Store Company, which occupied the main floor of the building. A vacant room extended the full length of the building on the east side of the basement, and the furnace- and coal-room of the Store Company was located in the southwest corner. The portion of the basement occupied by Sing Lee is situated immediately north of this coal-room and west of the vacant room, and consisted of an office and workroom combined, washroom, drying-room, bedroom and coal-room. There was a door opening from the furnace- and coal-room of the Store Company into the coal-room of Sing Lee, and from the latter room into the drying-room and bedroom, and from the bedroom into the office and workroom, and from the latter to the west into the washroom. There was also a door leading directly from the hall, entered from the north stairway, into the office and workroom.

The witnesses who discovered the body testified that they entered the bedroom from the rear of the basement. The bed on which the body was lying was in the southeast corner of the room, with the east side and head against the wall. There was also a table standing against the south wall, immediately west of the bed, and within reach of a person lying thereon. The body was lying with the head to the south, turned slightly to the- east; the bed covers were neatly tucked around the chin, and extended over the shoulders. His arms and hands were lying across his body, underneath the covers. The bullet entered on the left side, near the temple, and pursued a slightly downward course through the head and out on the right side. Blood had flowed from the wound on the right side over the face and down onto the bed comforter. The bed was not disturbed. A cigar box sitting on the table contained a sack, in which there was a quantity of silver coin, and a roll of bills, wrapped in a piece of yellow paper bearing Chinese characters, was found on top of the covers near the foot of the bed. There were also some cartridges on the table, and a blue steel pistol, with one empty chamber, lying on the cement floor between the bed and the table. All of the doors leading into the bedroom were closed, but not latched, and the door leading from the hall at the north end of the basement into the workroom was locked, as was also the door leading from the same hall into the vacant room.

No evidence showing that defendant was in Story City on the night of February 21st, or that he had visited Sing Lee since in January preceding, was introduced. Defendant visited Sing Lee for about three weeks in December, 1916, and again for about two weeks in January, 1917, during which time he roomed at the home of Mrs. Swenson, in Story City. Shortly' before defendant left Story City at the end of his first visit, he left an addressed envelope with A. C. Larson, proprietor of the Pioneer Store Company, with the request that, if Sing Lee got sick, or if anything was the matter with him, Larson would let him know at San Francisco, using the addressed envelope. Either at the time of this conversation or later, the defendant also gave Larson an envelope addressed to a Chinaman in Chicago, and requested that, if Sing Lee got sick, or anything happened to him, Larson would telegraph and write to both addresses. The defendant, at the time of the above conversation, stated to Larson that Sing Lee had a bad cough and was sick, and requested Larson to say nothing to Sing Lee about his condition, or about the request for information, should anything happen to him. The evidence tended to show that Sing Lee was a hard worker, and that he was generally in apparently good health. On the afternoon of February 22d, Larson sent telegrams and also letters, which he inclosed in the addressed envelopes furnished him by defendant, to San Francisco and Chicago. Upon his arrival in Story City on the morning of February 24th, the defendant went to the Pioneer Store and inquired of Larson concerning the death of Sing Lee, and during the day, stated to the mayor, in the presence of other citizens, that he received Larson’s telegram at Chicago, about 10:30 P. M., February 22d; and at the coroner’s inquest, that he received it at 9.o’clock; and to the county attorney, that he received it at 3 :30 P. M., February 22d. He also explained his delay in coming to Story City by saying that he desired to conclude negotiations which he had pending for the purchase of a chop suey restaurant in Chicago.

The proprietor of the Douglas Hotel at Ames, Iowa, testified that a Chinaman registered at his hotel on the evening of February 12th, under the name of Moy Y. Fong, and was assigned a room. Both the proprietor and his wife testified that they saw him register. The same witness further testified that the same Chinaman registered at his hotel on the 20th of February, under the name of Mock Y. Fong. The proprietor of the Ames' Hotel testified that a Chinaman registered on the 22d and 23d of February, under the name of Moy Y. Fong. The leaves of the hotel registers showing the signatures referred to were offered in evidence. Shortly before he left Story City on bis second visit to Sing Lee, be wrote bis Chicago address in a memorandum book banded bim by tbe janitor of tbe building for that purpose, as follows: “Quan Sue, No. 261 W. 22d St., Chicago.” On tbe evening of February 23d, with tbe assistance of tbe telegraph operator at Nevada, be prepared and filed tbe following telegram for transmission to Chicago:

“Feb. 23, Nevada, 1917: Dea Sing Pon, C/o Chee Wo Fong, No. 261 W. 22nd St., Chicago, Ill. If letter telegram for me don’t send by mail. I arrive Chicago tomorrow 7 o’clock A. M. From Quan Sue.”

Tbe memorandum book and original telegram were offered in evidence, and tbe signatures bear a close resemblance.

Tbe proprietor of tbe Douglas Hotel identified tbe defendant as tbe Cbinaman wbo registered at bis hotel on tbe evening of February 12tb and February 20th. Tbe clerk at tbe hotel testified, however, that, in his opinion, tbe defendant is not tbe Cbinaman who registered on February 12th. Tbe proprietor of tbe Ames Hotel testified that tbe defendant was tbe Cbina-man wbo registered at bis hotel on tbe dates given above. Tbe baggageman at tbe Northwestern Station at Ames, the keeper of a cafe, tbe station master, and tbe station agent wbo sold bim a ticket on February 21st for Randall, identified tbe defendant as a Cbinaman they saw in Ames on that date. Mrs. Pulus, wbo kept tbe cafe, testified that she also saw bim at her place of business on tbe morning of February 22d. He was further identified by tbe conductor and brakeman on tbe Northwestern train that left Ames on tbe evening of February 21st at 7:32, as a passenger from Ames to Randall, at which place be left tbe train. Tbe baggageman at Ames testified that be bad a package done up in black oilcloth, tied with a small rope, which was checked to Story City. Other witnesses testified to seeing bim in Nevada on February 23d, and one witness, that be saw bim alight from an east-bound Northwestern train at Nevada at 8:28 on tbe morning of February 22d. Tbe station agent and bis wife at tbe Rock Island station at Nevada testified that a Cbinaman whom they identified as tbe defendant, purchased a ticket on tbe morning of February 23d for Des Moines. Tbe housekeeper at tbe Ames Hotel and another witness identified tbe defendant as the .Cbinaman whom they saw at the hotel on February 23d and 24th. Nothing is shown of the whereabouts or movements of the defendant after he left the train at Randall, which is a small town a short distance north of Story City, on the evening of February 21st, until he appeared at the cafe in Ames on the morning -of the 22d and asked for a cup of coffee. The defendant remained, and received his meals, in his room in a rooming house in Story City on the 25th of February, and, on the evening of the 26th, paid room rent for a week in advance, but left on the same day. He left a suit ease and an oilcloth bundle in his room when he went away.

Frank Kirk, hotel clerk at Jewell, Iowa, identified the defendant as a Chinaman who came to the hotel on the morning of the 27th, and slept in a chair until about 6:30. He was further identified by different trainmen as a passenger from Jewell to Rolfe on February 27th, and on to Butte, Montana. This testimony is fully corroborated by statements made later by the defendant to the agent who apprehended and brought him back from Montana. The following circumstances are important, and should be mentioned in this connection. During his second visit to Story City, the defendant took an old, rusty spring lock to a hardware store, and asked to have it fitted with a key. A key was given him, but in a few days he returned, saying that the key was too short; whereupon one was made from a piece of iron. This key was found in the basement, following the murder, and was identified by the tinsmith' who made it. The lock had been fastened to the basement hall door leading into the vacant room. He told the dealer he wanted the lock fixed, as he was fixing up the basement for Sing Lee.

Mrs. Charles Armstrong testified that she had a conversation with the defendant in the county jail, in which he said that, in 1913, he had a half interest with Quong Wah in a store at 807 Washington Street, Oakland, California. It was also stipulated by counsel that Baker & Hamilton, hardware merchants at San Francisco, on November 25, 1914, sold a 38 Smith & Wesson revolver, giving factory number, to a Chinaman under the name of Quong Wah, of 807 Washington Street, Oakland, California, and that the revolver found on the floor near the bed of Sing Lee answered the above description.

George Quan Gay testified, through, an interpreter, to a conversation with defendant at the jail, from which the inference may be drawn that he practically admitted guilt; but the meaning of the witness is not quite clear.

í homicide • in-unjuestiflS>eieSe: chance for verdict. I. We come now to a discussion of the matters relied upon by counsel for appellant for reversal. The court instructed the jury upon the two degrees of murder, but did not submit manslaughter. Was it error for the court, upon the record made, to (a) submit murder in the sec-on(j degree, and if so, was it prejudicial to the defendant; and (b), if the two degrees of murder were properly submitted, was it error for the court not to submit manslaughter 1

Section 4728 of the Code defines murder in the first degree as follows:

“All murder which, is perpetrated by means of poison, or lying in wait, or any other kind of willful, deliberate and premeditated killing, or which is committed in the perpetration or attempt to perpetrate any arson, rape, robbery, mayhem or burglary, is murder in the first degree, * * * ”

Whoever commits murder otherwise than as set forth in the foregoing section is guilty of murder in the second degree.

It is not claimed by the State that the defendant was seen at Story City on the evening of February 21st, or nearer the scene of the crime than Randall. The distance from Randall to Story City is about 4 miles, and from Ames to Story City, where he appeared early on the morning of the 22d, about 14 miles. Nothing is known of his whereabouts after he arrived at Randall, until the morning of the 22d. When he last bade good-by to the janitor of the building in which the laundry was located, he told him he was going to Chicago, from which city Larson later received a letter from him. Except for the confidential conversation had with Larson, and the request made of Mm that, if anything should happen to Sing Lee, notice inclosed in addressed envelopes furnished him by the defendant be mailed at once, and his false statements as to his whereabouts at the time of and immediately after the tragedy, the evidence would be utterly insufficient to sustain a conviction of the defendant. While Sing Lee, upon one occasion, said to the janitor, “Me sick, me no good, ’ ’ there was no evidence that he was not generally in good health. He was industrious, and took care of a good business. This is material, however, only as throwing light upon the motive of the defendant in requesting that he be notified if anything should happen to Sing Lee. This transaction must be interpreted in the light of what followed. Something did happen to Sing Lee that was not foreshadowed by his illness, if he were, in fact, ill. Upon his arrival at Story City on the morning of the 24th, the defendant proceeded at once to excuse his seeming delay in returning from Chicago, and at the same time announced that the telegram sent by Larson was delivered to him there. He was not in Chicago on the 22d, when the telegram was sent, and when he claims it was delivered to him. He was in Ames on the 21st and 22d, and at Nevada on the evening of the 23d. Instead of receiving the telegram at Chicago, as claimed, he sent a message from Nevada to Chicago, requesting that telegrams and mail be held until his arrival, the following morning, evidently to prevent same from falling into the hands of someone who might use it against him. No witness was called to testify that he was in Chicago, as claimed, or that he was not at Ames or Randall, as shown by the testimony of the trainmen, although it would seem manifest that witnesses could have been produced who knew his whereabouts during the time in question. The revolver found on the floor and previously seen in the possession of the defendant was identified as one purchased by a Chinaman with whom the defendant claimed to have been in partnership in San Francisco. When the bedroom of deceased was first entered, on the afternoon of February 22d, his body was lying upon the bed, completely covered. The comforter was tucked in closely around his neck, his arms and hands lying underneath the same. There had been no struggle, resistance, or combat of any kind. The bed clothing was in perfect condition, and the blood had flowed from the wound on the right side of the head, over the face and onto the covers. The evidence is conclusive that a murder was committed. The defendant was at Ames, Randall, and Nevada when he represented that he was in Chicago. Instead of receiving at Chicago the telegram sent by Larson on the 22d, he wired Dea Sing Pon from Nevada, on the evening of the 23d, not to forward telegrams or mail, as he would arrive in Chicago on the following morning. Instead of going to Chicago, he went to Story City, and immediately inquired of Larson as to what was known concerning 'the tragedy.

The only reasonable inference to be drawn from his conduct before and after the crime was committed, is that, at the time of the conversation with Larson, he was deliberately planning to take the life of Sing Lee, and seeking to lay the foundation for an alibi. After his arrest, he stated to the conductor in charge of the train on which he rode from Ames to Randall on the evening of February 21st that he did not go to Randall; that he was in Chicago; that he had an alibi; that the witness should be careful, as all Chinamen looked alike. None of the matters above referred to were explained by the defendant. After laying the foundation, as he must have thought, for an alibi, he deliberately falsified as to his whereabouts at the time the crime was committed. The evidence shows deliberation and premeditation, and it is the deliberation and premeditation thus shown that proves the defendant’s guilt. The fear expressed to Larson that something might happen to Sing Lee evidently had its origin in his own deliberate purpose to do him violence. Eliminate the evidence which shows premeditation and singles out the defendant as the slayer, and the record becomes entirely barren of facts or circumstances justifying the conviction of murder in the second degree, or of any other offense.

If, in a given case, the evidence shows conclusively that the crime committed was murder in the first degree or nothing, the court is not required to submit the lower degree. State v. Sigg, 86 Iowa 746, 750; State v. Stanley, 109 Iowa 142; State v. Stevens, 133 Iowa 684; State v. King, 117 Iowa 484, 492; State v. Luther, 150 Iowa 158; State v. Burns, 124 Iowa 207; State v. Bertoch, 112 Iowa 195; State v. Thomas, 135 Iowa 717. But is it prejudicial error to do so ?

The court in State v. Bertoch, supra, divided equally upon the question whether the submission of murder in the second degree, in a poison case, was prejudicial, and in State v. Cody, 94 Iowa 169, said:

“Now, a defendant has no just grounds of complaint if the court, in such a case, shall limit the action of the jury to a conviction of the higher degree or an acquittal. But we think it cannot be said to be error prejudicial to the defendant if. in such, a case, the court should permit the jury to find as to the lower degree, if the testimony sustains the finding, which, of course, it must do to sustain a finding in the higher degree. It amounts to simply this: -A defendant who has committed an offense of a higher or the highest degree charged is convicted of a lower degree, of which he is guilty. By such a course he is not prejudiced. ’ ’

And in numerous cases, we have held that it does not lie in the mouth of the defendant to complain that he has been convicted of a lower degree of crime than that shown by the evidence. State v. Haugh, 156 Iowa 639; State v. Cessna, 170 Iowa 726; State v. Whitbeck, 145 Iowa 29; State v. Dimmitt, 184 Iowa 870. Murder in the first and second degrees is not distinguished as separate and distinct crimes, but as different grades of one offense. State v. Phillips, 118 Iowa 660. Murder in the first degree is the willful, deliberate, and premeditated killing of a human being, with malice; whereas the elements of premeditation and a specific intent to kill are not essential to constitute murder in the second degree. Both degrees, however, involve the taking of a human life, with malice. State v. Baldes, 133 Iowa 158; State v. Keasling, 74 Iowa 528.

It is possible that, if murder in the first degree alone had been submitted, the defendant would have been acquitted. Such an acquittal would, however, under the circumstances shown in evidence, have been inexcusable. No evidence was offered on behalf of the defendant tending to rebut the presumption of malice arising from the taking of human life in the manner shown, with a deadly weapon. No technicality making it possible for one accused of crime to escape punishment because the court, in the haste and confusion of a trial, made a mistake, and submitted a lower degree of the offense than that shown by the evidence, should find a place in our jurisprudence. If the court erroneously submitted murder in the second degree, the defendant could not have been prejudiced thereby.

2. homicide: m-submission of ’ witbout^OTidence. II. If, on the other hand, the court was justified, upon the record, in submitting murder in the second degree, was it error not to submit manslaughter? We have repeatedly held that it is not error to fail to submit an included offense of which there is no evidence. State v. King, supra; State v. Ockij, 165 Iowa 237; State v. Dean, 148 Iowa 566.

As already pointed out, tlie physical facts shown to exist at the time the body was discovered, negative the possibility of a justifiable homicide, or a homicide committed under circumstances to sustain a conviction of manslaughter. Manslaughter is the killing of a human being without malice, and may be the result of anger, passion, or the reckless handling of a dangerous instrumentality. Sing Lee’s eyes were closed. Death was probably instantaneous. In any event, there was no struggle or movement of the body sufficient to disturb the bed covering which he had tucked about his neck. There were no powder burns on the face; but one of the witnesses testified that, if 'the pistol were placed' close enough, the powder burn would be found on the inside of the head. Just where the murderer stood, and how the weapon was held when discharged, no one definitely knows. The fact that there was no struggle or other circumstances shown to indicate a quarrel or that death was due to the accidental or careless handling of a pistol, might tend to indicate some other motive for the crime than robbery, but still a deliberately executed purpose to kill. Every circumstance, so far as shown, immediately surrounding the tragedy, negatives the idea of manslaughter. Whatever weakness, if any, may appear in the evidence of the State, goes to the question of defendant’s guilt or innocence, rather than to the degree of the offense committed. To have submitted manslaughter to the jury would have invited it to enter a field of speculation without-a starting place in the evidence, and a conviction thereof could have been sustained 02ily, if at all, upon the theory that the jury had returned a verdict for an included offense, instead of the one proven. Manslaughter is a distinct crime, and not a mere degree of a higher offense, although included therein. In the absence of evidence tending to prove the crime of manslaughter, it was not error for the court to refuse to submit the same, although submitting both degrees of murder. State v. Brown, 152 Iowa 427; State v. White, 45 Iowa 325. The above eases are decisive of the question here presented.

It therefore follows that, if the court properly submitted murder in the second degree, it was not error, under the facts disclosed, not to submit manslaughter, and on the other hand, if the court erroneously submitted murder in the second degree, the error was not prejudicial. Upon either theory, the conviction of the defendant must stand.

3' iackMofAmoti^r: Perhaps something should be said in this connection on the question of motive. Motive need not be shown. State v. Whitbeck, 145 Iowa 29. But the absence thereof is a circumstance to be given weight. What motive other than robbery prompted the killing of Sing Lee, we can _ only conjecture; but the instrument used and the circumstances revealed in the evidence leave no doubt that the act was intentional, and the consummation of a settled purpose to slay. It may have been hatred, or the hope of some advantage not revealed in the evidence. Sing Lee had been prosperous in business, and had frequently deposited with Larson sums of money varying in amount. Two canceled checks were offered in evidence, one for $4,300 and one for $500, given by Larson to the deceased, both of which bore the stamps of banks in San Francisco. This may all have been known to the defendant. Another check for $400 had not, at the time of the trial, been presented for payment. It was stipulated that Sing Lee had $4,900 on deposit in a San Francisco bank. The money found in his room after his death amounted to about $200. What other money he may have had, if any, is not shown. Apparently, a robber could have taken the change found in the cigar bos on the table, and the roll of bills on the bed, if discovered. On the other hand, the murderer may, in his flight, have dropped the package, or left it for the purpose of concealing the real motive of the crime; but this, of course, is mere conjecture. It is hardly probable that deceased placed the roll of bills on the bed where it was found on the day following his death. It is much more probable that someone who knew where deceased kept his money abstracted it and dropped it on the bed. The absence of a motive for taking the life of deceased is not necessarily shown by the fact that not all of his money was taken.

4' Sae^S^drfense. III. The theory of suicide is also advance<^ by counsel for appellant. The bullet entered the head near the left temple, pursuing a course somewhat downward. The evidence shows that Sing Lee was right-handed, and it would have been difficult, if not impossible, for him to have inflicted the injury upon himself. The medical testimony offered was to the effect that death instantaneously followed the infliction of the wound. It would have been a physical impossibility for deceased, after discharging the contents of the pistol into his left temple, to have drawn the covers over his shoulders and tucked them under his chin. Both arms were lying on his body, underneath the bed covering. There is no plausible theory upon which the claim of suicide can rest. Every reasonable inference to be drawn from the circumstances surrounding the tragedy goes to sustain the charge of murder.

IV. From what is said above, it is unnecessary to give separate consideration to appellant’s contention that the verdict is not sustained by the evidence, even if it were conceded that we can, upon the record before us, review the facts for the purpose of passing upon the sufficiency thereof.

We therefore arrive at the conclusion that defendant had a fair trial, and that no reversible error is shown; and the judgment of the court below is — Affirmed.

Ladd, Evans, and Preston) JJ., concur.