Opinion
Appeal from a judgment of conviction, and from an order denying a new trial, in the Superior Court of the City and County of San Francisco. Freelon, J.
JUDGES: McKinstry, J. Morrison, C. J., and Ross, Sharpstein, Myrick, McKee, and Thornton, JJ., concurred.
OPINION
McKINSTRY, Judge
In Bank. The defendant attempted to establish an alibi; he himself and his principal witness swearing that he was not at the scene of the assault.
The affidavit of McFadden, used on the motion for a new trial, if it be considered as averring that defendant was not present when the prosecuting witness was beaten, is merely cumulative evidence. But the affidavit does not distinctly state that defendant took no part in the assault. McFadden says: " Two Chinamen came behind Lee Wing (prosecutor), one pulled him back, and the other struck him." Further: " Affiant is positive Chin Ah Hong is not the man who struck Lee Wing."
If both took part in the assault, it is immaterial whether defendant " pulled him back" or struck him.
Judgment and order affirmed.