Los Angeles herald., 1892-09-06
WONGARK.AAS ONE MOREcHANCE,
The Murderer Of Guet Cue to
Have a New Trial.
A Cold -Blooded Crime Again Brought
to Public Notice.

The Supreme Court Reverses the ver-
dict of the Jury-A Condensed
Statement of the Opinion Which
Came Yesterday.
The supreme court has granted a new
trial to Wong Ark, who was convicted
before Judge Mckinley, of the superior
court, some months ago, of the murder
of Guet Cue, Chinese woman who was
owned by him. The murder was acold'
blooded and devilish one, and excited
very general interest at the time. The
police department did excellent work in
digging up the evidence which led to
the conviction. 1t was the general
sentiment of the people that Wong Ark,
who had been leader of one OF the FAC
tions in Chinatown, should suffer the
severest penalty for his crime. He was
defended by Jesse Hardesty. The de-
cision of the supreme court was a great
surprise to those who assisted in the
prosecution. The opinion arrived in the
city yesterday, and is very important
one in many respects. While the lead
ing opinion by Justice Paterson dis
claims decision upon the constitution
ality of section ITO of the penal code,
in the concurring opinion by Justice
Garoutte the matter is thoroughly dis
cussed, and he holds it unconstitutional
upon certain points. The opinion is as
| follows:
| People, ETC., respondents, vs.. Wong
Ark, appellant. The appellant was con-
victed of murder and sentenced to inn
prisonment in the state prison for life.
A motion for new trial was made and
denied, and from the order denying the
motion and from the judgment the de-
fendant has appealed.
The appellant schiefcontention is that
the court abused it's discretion in over
ruling the defendants challenge for ac-
tual bias, made to several of the persons
who were examined as to their qualifi-
cations to serve as jurors. Section ITO
of the penal code does not provide for
| the exception to challenge for actual
bias, and it has been held in several
cases that there is no exception. and
that there can be nc review of the hear
| ing upon such challenge. The appel
liant contends, however, that the section
| referred to is unconstitutional and void,
because sit deprives the accused of the
right to except to the decision of the
trial court in disallowing a challenge for
actual bias urged by the accused against
proposed Juror, and takes away from
the accused the safeguard OF trial by
an impartial jury, and deprives him of
his life or liberty without due process
of law" But we are not called
upon to determine the constitutionality
of the act. We have examined
the testimony of each juror given
upon his voir dire, and are satisfied that
the challenges were properly denied. To
establish actual bias there must be
shown ''the existence of a state of mind
on the part of the juror in reference to
| the case, or to either of the parties
which will prevent him from acting
with entire impartiality, and without
prejudice to the substantial rights. of
either party" (Sec. 1910 penal code.)
The testimony fails to show that there
| existed in the mind of any of the Jurors
any prejudice, either with reference to
| the facts in the case, or the parties to
| the action.
| At the trial police officer in the
city of Los Angeles was permitted to
testify, that after the shooting he ran to
| the place where the deceased was lying
on the porch IA distance of about 14O
| yards) and chad conversation with her
for possibly half minute, or little
longer" that when he reached the place
where she was lying there were several
persons present. Against the objection
of the defendant the witness was per-
mitted to state that the deceased de-
clared that the defendant was the man
who shot her. This ruling of the court
was erroneous. The declaration was
not made in the presence of the defend
ant, and it was not admissible as a dy-
ing declaration, because no foundation
therefor was laid. If admissible at all,
it was only as part Of the res gestae.
1t is often difficult to determine what
acts or declarations are part of the res
| gesta. There is an apparent conflict in
the authorities on the subject. Each
case must be determined upon its own
peculiar facts. Wharton says: "The
distinguishing feature of declarations of
this class is that they should be neces-
sary incidents of the litigated act; ne
cessary in this sense, that they are part
| OF Gne lmmoulato COuCCIOlUdulb VI COu-
dltions of said act, and are not pro-
duced by the calculated policy of the
actors" The rule before us,
however, does not permit the introduce
tion, under the guise Of res gest@, of a
narrative OF past events, made after the
events are closed, by either the party
| injured or the bystander. AT the time
the declaration referred to was made,
the shooting had been done and the as
sailant had escaped from the scene of
the shooting. The declaration was not
the fact talking through the party, but
the party's talk about the facts. (Whar-
toms Grim. Ev., Secs. 266, 691.) The
subject under consideration was care
fully considered by Mr.. Justice Sharp
stein, in People vs. All Lee, so CAL, 85,
and the views therein expressed, we
think, are correct and applicable to the
case at bar.
During the impeachment of the jury,
and after nine jurors had been selected
and sworn to try the case, two OF the
jurors were excused on the ground OF
illness. At that time the defendant had
exercised nine Of the twenty peremptory
challenges allowed him by law. The re-
naming seven jurors were retained and
additional men were called to fill the
panel. When eleven jurors had been