The record-union., 1891-03-16
Filled March 7, 1s91.]
IN BANK.

IN BANK.
THE PEOPLE, Respondent,
VS.. No. &c, COL.
CHEW SING WING, Appellant
The defendant was by information
charged with the murder of one Leuy
Jing. He was tried and convicted of
murder in the first degree and sentenced
to be imprisoned for life. He appeals
from the Judgment and order refusing
him new trial.
Upon the trial one Chang Fool1,
witness for the people, testified: II was
going up Bakers alley on the night of
the 18th of July, 1889, in San Francisco.
/ saw Levy Jing coming down
the alley and the defendant coming seven
or eight steps behind him. / saw the de
fendant fire pistol at Leuy Jing. After
the defendant fired the shot he ran back
up the alley, while Leuy ling kind of
hurried off down towards Dupont street.
When ] saw Leuy Jing shot he
ran down the alley. & He said,
save life and he said Sun Wing has
shot me-"
There WAS also introduced the dying
declarations Of the deceased, which were
in substance that the defendant shot him:
that he turned and saw him; that defend
ant followed him out of his room. He
further said: "He accused me OF asi1in
Gum Moon for money. Gid not attempt
TO huft niial or any Gne."
| This was all of the evidence III the case
tending to show the circumstances of the
shooting, and the coitrt gave the follow
ing instruction to the jury:
''If the testimony bearing upon the
question of the killing, so far simply is
the deceased Is concerned, and the means
by which he came to his end, are believed
by you, it would undoubtedly make out
q case by the prosecution OF murder in
| the first degree, under the statutes. The
testimony tends to show under the cir
cumstances that the killing - whoever
committed it-must have been deliberate.
must have been premedit3tcd. must have
been unlawful, and must have been ma
liciOus. All the elements of murder in
the first degree occur upon the testimony,
If believed, as given in the case, and by
the conversation of certain persons. The
only question would be as to who COM
mitted the murder. The testimony is, I
believe, uncontradicted, that this man,
the deceased, was shot in that alley, in
what is called Chinatown in this city, in
the night, in the back, that he ran short
distance, fell and was picked up, and
died of that wound, and that the mur-
deref-so far as the immediate evidence
is concerned, as to the act of killing
escaped from the spot without any fur
ther detection than this given by the tes-
timony Of one witness who processes to
have seen the transaction"
This instruction contTaVenes Section 10
of Article VI. of the Constitution of this
State, which declares: Judges Shall not
charge jures with respect to matters of
fact, but may state the testimony and de-
clare the law.n People VS.. Ybarra. IL
Cal. III People VS.. Ah Lee, 60 Cal. S5.
In People VS.. Ybarra, supra, the court,
speaking through Cope, j., say: This
provision is violated Whenever Judge
so instructs as to force the jury to a par
ticular conclusion upon the aOhoIe or aay
part Of tie case, or to take away their ex-
elusive right To weigh the evidence and
determine the facts. The meaning of the
provision is that the,eJudge shall decide
upon the law, and the jury upon the
facts, and that the former shall not invade
the province nor usurp the powers of the
latter. The Judge has no more right to
control the opinion Of the jury upon
matter of fact, than the jury have to
disregard the directions of the Judge
upon matter of law"
There is no question arising in trial
for murder, more peculiarly or purely
one of fact, than the one whether the kill
| ing was done with. deliberation and pre-
meditation, or in the decision of which
so much is necessarily left TO the sound
sense, discretion and experience of the
jury who, under the Constitution, are
made the exclusive trierS of that issue.
In People VS.. All Lee go Cal. S6), this
court said: And we think it to be well set
tied in this State, that it was error to in
struct the jury that there were no circum-
stances III the case to reduce the offense
below that of murder in the first degree.
The question whether the killing was
perpetrated with the deliberation and
premeditation necessary to constitute it
murder in the first degree, was one
which it was peculiarly the province of
the jury to Determines
hn trl..C in n lte- 1nI
| fed to taking of the life of deceased,
under any of the circumstances enumer-
ated by Section 1S9 of the Penal Code as
| conclusive evidence of murder in the
first degree, such as by means of poison,
lying in wait or torture, it may be that
an instruction in the form given by the
| court below could be upheld, as in that
case, if the evidence were true, it could
be said as a matter of law, that the
crime committed was murder in the first
degree because the act itself is made con-
elusive evidence of the fact that it was
wlllful, deliberate and premeditated.
But the question arising upon the evil
| dence here is far different, and whether
the shooting of Leuy Jing was willful,
| deliberate and premeditated was purely
question OF fact to be determined as an in
ference from all the circumstances sur
rounding the act, and was solely matter
for the jury to find and declare for them
sc1N0S. ANO HOW ClcdTiy III may
have appeared to the court that the cir
cumstances or manner of the killing, as
given by the witness, would, if truly
given, furnish sufficient evidence of
everything essential to make the killing
murder in the first degree, still the Consti-
tuition forbade the Judge to announce his
conclusion to the jury, and the defendant
| was entitled to have that question sub
mitted for decision to the jury alone, as
being the only persons authorized to pass
upon it, and was entitled to verdict,
based upon their own judgment, entirely
| uninfiuenced by the opinion of the court
as to what differences of fact should be
| drawn from the evidence relating to this
particular fact.
2. Nor are we permitted here to weigh
the testimony for the purpose of de-
termining whether the verdict of the jury
is not right upon the evidence. What
was said by the court in People VS.. Va
lencia (43 Cal. $3.50 is in point here: 1--WE
are not justified in saying that the error
was productive of no injury to the de-
PENDANTS, because we may be satisfied
that the jury ought to have found from
the evidence, as they did, that the de-
PENDANTS are guilty of murder in the first
degree. The question as to the delibera-
ton and premeditation of the defendants
is one which is peculiarly the province of
the jury to determine; and should we
sustain the charge of the court, because of
the apparently satisfactory character of
the evidence, that question would vir-
tually be withdrawn from the jury
z Tho error in this fhar0a ,I,ac not