People v. Un Dong

Van Fleet, J. Defendant (a Chinese) was convicted of an assault with a deadly weapon upon a fellow-countryman, and sentenced to the state prison for the term of two years. He appeals from the judgment and an order denying him a new trial.

1. It is strongly urged that the evidence is insufficient to sustain the verdict, but we do not think this contention can be sustained. The evidence of the prosecution tended to show that the alleged assault was committed between 11 and 12 o’clock at night, upon a public street, in a quarter of the city of San Jose known as “ Chinatown.” That defendant and an associate, one Ah Wei, lay in wait at a street corner, outside a restan[85]rant, until the prosecuting witness, one Ah Bong, came out, when defendant pointed out Ah Bong to Ah Wei and told the latter to shoot; that Ah Wei immediately fired two shots at Ah Bong, one of which hit the latter in the back. That immediately following the shots by Ah Wei several other shots were fired by a party or parties from across the street, but by whom the latter shots were fired or whom they were fired at was not disclosed. These facts in substance were testified to by a number of Chinese witnesses, several of whom positively identified defendant as one of the assailants. On the part of defendant a large number of Chinese witnesses, and some white witnesses, gave testimony tending strongly to show that defendant was not present at the time of the assault, and did not participate therein. One Wheeler, a peace officer, or watchman, in Chinatown, testified that he was in a restaurant near the place of the shooting, and ran out on the sidewalk where he could see the parties before the second shot was fired. That he saw Ah Bong’s assailants and recognized them, and that defendant was not one of them» but that one Toi Soon did the shooting. Another white witness, Jones, who was the doorkeeper at the Chinese theater, testified that he had seen defendant enter the theater earlier in the evening, and that defendant was still in the theater when the shooting occurred. Other witnesses, including some police officers, testified that the prosecuting witness immediately after the shooting accused another party than defendant of doing the shooting. There was also evidence tending to show that the trouble grew out of differences between members of rival tongs or societies; that the arrest and prosecution of defendant, who it appeared was the grand master or headman of one of the rival tongs, was an afterthought prompted by a desire on the part "of the wounded man and his friends to make defendant suffer vicariously for the wrong of the real assailant, who had escaped and could not be apprehended.