
    SUPREME COURT — APPELLATE DIVISION — SECOND DEPARTMENT.
    May 26, I9I6.
    THE PEOPLE v. MOY HE.
    (173 App. Div. 396.)
    (1.) Perjury committed on trial for murder —Sufficiency of evidence —Appeal.
    Prosecution of a defendant for the crime of perjury committed as a "witness for the People in a trial for murder. Evidence examined, and held, sufficient to sustain the conviction.
    (2.) Same.
    In such an action it was competent for the district attorney to ask a witness for the defendant if he had not been indicted for perjury committed upon the murder trial in order to show the interest of the witness and possible prejudice or bias in giving his testimony.
    (3.) Same—Keview of discretion of trial court in refusing to strike OUT TESTIMONY.
    The discretion1 of the trial court in refusing to strike out testimony received without objection is not reviewable.
    (4.) Same.
    Testimony of the defendant as to his motive in endeavoring to secure the conviction of the defendant in the murder trial examined and stricken out.
    Appeal by the defendant, Moy He, from a judgment of the Supreme Court, rendered against him on the 13th day of October, 1915, convicting him of the crime of perjury, with notice of an intention to bring up for review certain orders made in the action severally denying his motions to dismiss the indictment, to direct a verdict in his favor, and for a new trial.
    
      
      James W. Osborne, for the appellant.
    
      Harry G. Anderson, Assistant District Attorney (James C. Cropsey. District Attorney, with him on the brief), for the respondent.
    
      
       See Notes, Vols. 12, p. 256; 16, p. 491; 17, p. 408; 26, p. 273.
    
   Rich, J.:

The defendant was convicted of the crime of perjury, and from the judgment accordingly entered appeals, bringing up for review additional orders denying several motions, among them one for a new trial.

On April 19, 1912, a laundryman named Fong Glow was murdered in his laundry at Coney Island. One Yee Quong was indicted and placed on trial for the murder. The appellant was the principal witness for the People upon the trial, and testified among other things that he was a customer of Fong Glow, whom he had known for five or six years; that on the evening of the 19th of April, 1912, at about seven or eight o’clock, he went to his place of business to get his laundry; that as he approached the front door he heard shots; that the front door of the laundry was open and there was a light inside; that he looked in and saw Yee Quong shoot Fong Glow; that he ran into an adjoining alleyway; that Yee Quong fired a second shot; that he looked through the window into the laundry and saw Fong Glow fall to the floor, and that Yee Quong then ran out of the front door and away from the building; that he then returned to the restaurant where he worked, reaching there at about half-past eight; that he told no one what he had seen until about three months after, when he told Ah Xiang, a cousin of Fong Glow. He further testified that he had known Yee Quong a little more than four years and that he had seen him several times at Coney Island and met him in Chinatown in Hew York on Sundays more than a hundred times; that he met him on Sundays in February, 1912, in Chinatown. The jury acquitted Tee Quong, and thereafter the appellant was indicted for perjury, alleged to have been committed by him at said trial. The People, after putting the testimony of the appellant upon the trial of Tee Quong in evidence, swore Tee Quong, who testified that for about two years prior to April, 1912, he resided in Lawrence, Mass., where he carried on the laundry business; that in 1912 he was an attendant at the Sunday schools of the Second Baptist and South Congregational churches of that place; that he never knew any one by the name of Fong Gow and had never been to Coney Island or to Chinatown in ¡New Tork, or to ¡New Tork City; that after taking up his residence in Lawrence he had never been away from such place until after April 19, 19Í2; that on April 18r 1912, between five and six o’clock in the evening, and on April twentieth between eight and nine o’clock in the morning, a friend and customer of his by the name of Edward Cantilion called at his laundry; that he did not kill Fong Gow, and on the night of April nineteenth, at the hour when defendant testified to having seen him in Coney Island, he was sleeping in his store at Lawrence; that he never saw Moy He (the appellant) until he came to Ms laundry in Lawrence with two detectives at the time when the witness was arrested. The superintendent of the Chinese Sunday school in Lawrence, who testified from an attendance book personally kept by her, said that Tee Guong was present at the Sunday school in Lawrence on each and every Sunday from January 1 to July 1, 1912; that such Sunday school met and was in session from half-past two to half-past four o’clock in the afternoon of each of said Sundays; that prior to April 19, 1912, she frequently, and at times as often as once a week, called at the laundry of Tee Quong and always found him there, and, so far as she observed, he was never, prior to said April nineteenth, away from Lawrence. A teacher in a Baptist Sunday school in Lawrence testified that the school met and was in session every Sunday between half-past five and seven o’clock in the afternoon; that a report of individual attendance was kept, and that in the month of February, 1912, Yee Quong was present at the sessions of said Sunday school held on February fourth, eleventh and eighteenth. Edward A. Cantillon testified that on April 18, 1912 — which was a legal holiday in Massachusetts-—-at nine o’clock in the evening, and on April twentieth at about ten o’clock in the forenoon, he called at the laundry of Yee Quong in Lawrence and found him there at work on both occasions; that prior to April nineteenth of that year he visited said laundry every week and invariably found Yee Quong therein on such occasions; that the railroad running time of the through trains from Lawrence to ¡New York City was about nine hours. Samuel Blakeman testified that between ten and eleven o’clock on the night of the murder he passed the laundry of Fong Gow and saw him there at work. Charles Allen testified that he lived directly across the street from the Fong Gow laundry, and about 100 feet from it; that while sitting on the porch of his house, between eleven and twelve o’clock on the night of April 19, 1912, he heard two or three shots fired; that he paid no particular attention to them then, but the following morning he went to the laundry and found the gas burning and Fong Gow dead on the fioor. Maria Miggins testified that her house was next to the laundry; that she was at a motion picture show on the evening of April 19, 1912, and on her way home noticed by a clock at Culver depot that it was a quarter after eleven o’clock; that after she had retired, and between eleven and twelve o’clock, she heard two shots fired in the vicinity of her home.

It was proven by the physician who performed an autopsy on Fong Gow that he found two bullet wounds in the body.

Moy He testified substantially as he did on the trial of the indictment against Yee Quong, reiterating the story of the shooting and of his acquaintance with Yee Quong. Ah Kiang testified that he was a cousin 'of Fong Gow; knew Tee Quong and had seen the latter in 1911; and in April, 1912, at the laundry of Fong Gow two or three times, on which occasions the latter gave Tee Quong money; that the last time he came he wanted thirty dollars, and on that occasion there was a good deal of talk between him and Fong Gow, and when the former left the laundry he told Fong Gow to look out; ” that one Wu Chung (who was not sworn) had told him that Tee Quong, on one occasion when drunk, had confessed to him that he killed Fong Gow. Wong Tang, who was employed in a chop suey restaurant in Coney Island, testified that while standing by a telegraph pole across the street from the laundry of Fong Gow between seven and eight o’clock on the evening of April 19, 1912, he saw Tee Quong run along the car track away from the laundry; he heard no shots fired, and told Ah Bhang, when questioned by him several times, that he knew nothing about the matter, but finally told him what he had seen. Wong Quong testified that he knew Tee Quong and had seen him two or three times in 1912 on Pell street in Chinatown. Lee Hong testified that he kWw Tee Quong and had seen him in Chinatown once in 1911 and once in 1912.

The testimony of each of the Chinese witnesses sworn for the defendant was contradictory and unsatisfactory. The case was submitted to the jury by the learned trial court in a charge which was so fair, impartial and free from error, and in which the rights of the appellant were so fully guarded and protected that no exception was taken by either party. The jury found the defendant to be guilty, and the finding is amply sustained by the evidence, and unless some error prejudicial to the defendant is presented the verdict must be sustained.

When the witness Ah Kiang was on the stand the district attorney asked him if he had not been indicted for perjury commited on the trial of Tee Quong, This was objected to as incompetent, irrelevant and immaterial. The objection was sustained and, at the request of defendant’s counsel, the court directed the jury to disregard the question and incident entirely. It is now contended that the asking of the question was for the sole purpose of prejudicing the defendant with the jury and presents reversible error. I think the evidence was competent to show the interest of the witness and possible prejudice or bias in giving his testimony, which was a proper subject for the jury to consider in determining the weight to be given his evidence. (Ryan v. People, 79 N. Y. 593, 600.) In any even, the defendant was not prejudiced; the objection was sustained and the jury directed to disregard the incident in its entirety.

It is further contended that prejudicial error is presented by the exception to the refusal of the court to strike out the testimony of the witness Cantillon because the fact that Yee Quong was seen in Lawrence on April eighteenth and twentieth was immaterial, it being possible, notwithstanding such fact, for him to have been in Coney Island on the night of the nineteenth. I think the evidence was proper in view of the distance between Lawrence and Coney Island and the time it would take to travel from the one place to the other, and in view of the evidence that 'Fong Grow was alive and working in his laundry until after ten o’clock on the night of the nineteenth. While not at all conclusive it was a circumstance to be considered by the jury and was properly received for what it was worth. Furthermore, the testimony was received without objection, and no claim of error can be predicated upon the refusal to strike it out. It was in the discretion of the trial court, and is not reviewable. (People v. Chacon, 102 N. Y. 669, 671, 4 N. Y. Crim. 173.)

In reference to the exception to the refusal to strike out the evidence of the witnesses Allen and Miggins, this evidence was also- received without objection. In addition, it was a circumstance proper to be considered by the jury in determining the time the murder was committed. It had probative force and value, as tending to establish the falsity of defendant’s testimony that the killing was between seven and eight o’clock.

On the cross-examination of the witness Yee Quong, counsel for the defendant asked him if he knew of his own knowledge of any object .Moy He would have in sending him to the electric chair. The witness answered: “ On account of the laundry, 251 South Union street. * * * On account of his tong, they wouldn’t allow other Ohinamen to go there and' open a laundry.” Counsel for the defendant moved to strike this answer out on the ground that the witness was not speaking from his own knowledge. In answer to a question by the court, “ Do you know that of your own knowledge,” the witness answered, “ It is my own knowledge,” the court stated: “ I will let it stand for what it is worth. He simply makes that statement.” On his redirect examination the witness said that the answer was his “ conclusion,” and on defendant’s again moving to strike it out the court ruled, “ I strike it out.” The record shows the following to have then taken place: “ Mr. Osborne:. May all of that incident be stricken out ? The Court: Yes. Mr. Warbasse: I do not understand your Honor to strike out what-came out on cross-examination. The Court: Ho, just this last, that you asked. Mr. Osborne: Well, I want that part, then, to stay, that it was his conclusion, if your Honor please, because, you see, I claim the whole incident ought to go out. The Court: It was practically shown by your cross-examination, that it was his conclusion as to why he had committed perjury to deprive him of his life. Mr. Osborne: But he does not base it on anything but hearsay. Mr. Warbasse: He is not asked for hearsay at all. Mr. Osborne: I beg your pardon. He stated that it is.his conclusion; .that is just my point. If your Honor please, I admit that I trusted to this man answering my question responsively, which it is perfectly palpable that he has not done. I asked him, ‘What do you know, of your own knowledge ? ’ How, he said it was because of the laundry, and your Honor puts a question to him and he states that that was his conclusion. The Court: Why don’t you let it stand at that, then, and let the whole testimony stand, including the statement that that was his conslusion? Mr. Osborne: I know, but it is hearsay. The Court: It explains his cross-examination. Mr. Osborne: That is what I say. I would rather have this last part stand, too. The Court: That is what I would suggest, then, letting it all stand. Mr. Osborne: I would like to have the whole incident go out, though, if I may. The Court: I will deny the motion to strike it all out. I will let it stand, that it was his conclusion. Mr. Osborne: I respectfully except, not to the ruling of your Honor in not striking out that it was his conclusion, because I do not move for that, but I do move that the whole incident, in toto, go out. The Court: I will let it stand. It was brought out on cross-examination. That is why I let it stand.”

At the close of the evidence the court said to counsel for defendant: “ There is one point that I am going to take up now. You made a motion to strike out that testimony, but you really brought it out yourself, on cross-examination, as to whether or not he knew of a motive. Mr. Osborne: Yes. The Court: I am going to strike out that testimony, including that part of your cross-examination. Mr. Osborne: Yes, I requested it to go out. The Court: I will strike it all out, and I will strike it out on the ground that it was proved afterward that it was his conclusion, and, further, on the ground that the question of motive is not involved in a perjury case> anyhow. It is out, and I will instruct the jury that the testimony of Yee Quong as to any motive on the part of the defendant to testify falsely against him is stricken out.”

The error in the first ruling, if there was any, was cured by the subsequent reversal of the ruling. (People v. Koerner, 117 App. Div. 40, 12 N. Y. Crim. 503; affd. without opinion, 191 N. Y. 528; People v. Barnes, 202 id. 77.)

Justice does not require a reversal of this judgment of conviction, and it must he affirmed.

Jenks, P. J., Carr,«Stapleton and Putnam, JJ., concurred.

Judgment of conviction affirmed.  