People v. Ah Wee

By the Court, Niles. J.:

The defendant, having been indicted for the crime of murder, and convicted of murder in the second degree, appeals from the judgment and from the order overruling his motion for a new trial. The bill of exceptions presents many points, of which we shall consider only those urged by the counsel for the defendant in their brief.

1. The evidence of the declaration of the deceased, AhQuong, made in the presence and hearing of the defendant, and of the defendant’s reply, was properly admitted. Both were Chinamen, and both understood the English language. The declaration of the deceased, that Ah Wee shot him, was made in English, and in reply to a question addressed to him in that language, and was testified to by several bystanders. The answer of the defendant that he was “not Ah Wee,” was given in Chinese, and was testified to by a Chinaman who understood both languages. It is evident that the admission of this testimony was not liable to the dangers suggested in the case of People v. Gelabert (39 Cal. 664). In that case the confession of the prisoner was made in a language which the witness did not understand •sufficiently to enable him to testify to all that was said, and the part not understood might have explained the apparent contradictions of his declarations as testified to. But here the evidence sufficiently showed that the- deceased and the defendant understood each other, and that, the declarations of - each were correctly and fully stated, although by different witnesses.

2.. At the close of the testimony the Court, against the objection of the defendant, permitted three counsel for the prosecution to address the jury. The defendant had but two counsel, who each addressed the jury. No objection is made to the order of the several arguments, but it is urged that it was error to allow more than two arguments upon the part of the People. Section one thousand and ninety-five of the Penal Code provides that “if the indictment be for an offense punishable with death, two counsel on each side, may argue the cause to the jury. If it is for any other offense, the Court may, in its discretion, restrict the argument to one counsel on each side.” As we construe this section, its object was to give to both the prosecution and the defense, in a capital case, the right'to have the case presented to the jury by at least two counsel; and to distinguish the case in this respect from the inferior grades of crime in which the argument may, in the discretion of the Court, be restricted to one counsel on each side. But it was not intended to limit the power of the Court in any criminal case to allow as many counsel as in its discretion should seem proper, to address the jury, whether upon the part of the people or of the defendant.

3. It is claimed that the Court erred in its charge in omitting to instruct the jury in reference to the law of manslaughter. The entire evidence is not before us, and there is nothing in the evidence presented tending to show that such an instruction would have been applicable. Moreover, a specific instruction upon this point should have been asked by the counsel for the defendant, if they deemed it appropriate. (People v. Haun, 44 Cal. 100.)

4. We do not deem it necessary to review in detail the several instructions asked by the counsel for the defendant and refused by the Court. We discover in none of them any principle of law, correct in itself, and applicable to the case, that is not as well, and usually better, stated in other instructions asked and given.

Judgment and order affirmed,