Citation Numbers: 191 Iowa 144
Judges: Evans, Ladd, Preston, Salinger, Stevens
Filed Date: 11/29/1920
Status: Precedential
Modified Date: 7/24/2022
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
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
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
“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
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
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 busi
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.*153 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.
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
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.