People v. Eng Hing

• Decision Date: 14 July 1914
• Citation: 106 N.E. 96,212 N.Y. 373
• Parties: PEOPLE v. ENG HING et al.
• Court: New York Court of Appeals Court of Appeals

212 N.Y. 373

106 N.E. 96

PEOPLE

v.ENG HING et al.

Court of Appeals of New York.

July 14, 1914.

Appeal from Court of General Sessions, New York County.

Eng Hing and another were convicted of murder, and, from the conviction and order denying a new trial they appeal. Affirmed.

Terence J. McManus, of New York City, for appellants.

Charles S. Whitman, Dist. Atty., of New York City (Robert C. Taylor, of New York City, of counsel), for the People.

WERNER, J.

The defendants have been convicted of murder in the first degree. The charge is that on the 27th day of February, 1912, between 7 and 8 o'clock, they shot Lee Kay while he was in a small store known as No. 18 Mott street, in the borough of Manhattan, city of New York, and inflicted upon him a wound from which he died on the 10th day of June in the same year. The defendants have been twice tried. On the first trial the jury disagreed, and on the second trial the defendants were convicted . From the judgment entered upon the verdict rendered on the second trial, the defendants have appealed to this court.

The shooting took place in the store of Lee Po Ming, and there were present Lee Po Ming, who was seated behind a counter at the rear end of the store, two Chinamen, named Lai Look and Hom Chung, who sat on a box and stool, respectively, on the southerly side of the store, about opposite the end of the counter, and Lee Kay, the deceased, who sat on a fruit box in front of the counter reading a newspaper. According to the witnesses, Ming, Chung, and Look, the defendants came to the front door of the store, and immediately began to discharge their revolvers, firing four or five shots, two of which lodged in the body of Kay, one penetrating the left arm a little above the elbow, and another the left side of the back below the shoulder blade, going in toward the median line and stopping at the ninth dorsal vertebra. That there were a number of shots fired is amply demonstrated by the physical conditions discovered after the shooting. Two separate bullets had entered the body of Kay. Three bullet holes were found in the fruit box on which he had been sitting. Another bullet lodged in a clock which hung on the rear partition wall of the store. At the opening of the fusilade, Ming got down behind the counter, while Chung and Look ran through a door leading to a room in the rear of the store, where there were four Chinamen, named Li Fong, Frank Yee, Lee You, and Yung Hoy. Two of these, Fong and Yee, seized revolvers and started in pursuit of the defendants, who were then running along Mott street toward an arcade which connects Mott street and Doyers street.

In addition to Ming, Chung, and Look, there were three other persons who witnessed the shooting from the outside of the store . These were Florence Wong, Grace Mack, white women who lived with Chinamen, and a Chinaman named Lai Hay, who resided in Ossining, but was then celebrating the Chiness New Year in the city of New York. The two women were on their way from their apartments to a restaurant in No. 14 Mott street. As they reached the middle of the street they heard shots at No. 18. Looking in that direction they saw the defendants shooting into the store, and then watched them as they ran toward the arcade. According to Florence Wong, both of the defendants had pistols in their hands as they ran, and one of them threw his away. The Chinaman Lai Hay testified that he was standing in front of No. 17 Mott street when he heard shots at No. 18; that he saw the defendants shooting into the store, and that they then ran to the arcade; that when they got to No. 20 Mott street the defendant Eng Hing threw away a pistol. Li Fong and Frank Yee, the two Chinamen who gave chase to the defendants, testified that when they reached the sidewalk they saw two Chinamen, whom they recognized as the defendants, running toward the arcade, and that when the defendants had retreated into the arcade, there was an exchange of shots between the defendants on the one side, and Li Fong and Frank Yee on the other.

Cuneen, a police officer whose post was on Pell and Doyers streets, stood at Mott and Pell streets when he heard a number of pistol shots. He ran in the direction from which the sounds came, and, as he approached No. 20 Mott street, he saw two Chinamen firing into the arcade. The Chinamen stopped shooting when they saw the officer coming and ran into the hallway of No. 18 Mott street, where Frank Yee was found hiding in an area on the further side of a wall which separates No. 18 Mott street from No. 16, and the officer placed him under arrest. Wade, another police officer, was with Cuneen when the shooting was heard. He saw two Chinamen run from the Mott street entrance to the arcade into the hallway of No. 18 Mott street, where he found Li Fong and placed him under arrest. Within the arcade, about midway between Mott street and Doyers street, there was one George Sullivan, who was passing through. He saw two men running; he heard shooting; and he saw the defendant Eng Hing fall after the shooting. That the defendant Eng Hing was in the arcade, and that there he was shot in the thigh, is admitted by him. Supplementing all the testimony for the prosecution, of which the foregoing statement is a bare skeleton there is the ante-mortem statement of Lee Kay, received in evidence by consent of counsel for the defendants, in which the declarant says:

‘On February 27, 1912, at 8:45 p. m., this fellow shot me. Lee Dock and Eng Hing was the two. Lee Dock shot me. Lee Dock was brought here and identified by me as the man who shot me at 18 Mott street. I was sitting in the store and Lee Dock came to the door and shot me.’

The defense is a general denial by both defendants, supplemented by testimony designed to prove an alibi as to each of them. The defendant Lee Dock testified that on the evening of February 27, 1912, between 7 and 9:30 o'clock in the evening, he was in his room on the third floor of No. 33 Allen street; that this was an apartment maintained by William McGann; that McGann and Martin Schauer were present with him during the whole of that time; that shortly before 10 o'clock he left the apartment to go to a restaurant at No. 11 Pell street to get something to eat; and that while he was in this restaurant he was placed under arrest by Detective Kennell. This defendant was corroborated by McGann, who testified that he was in the apartment with Dock and Schauer; that shortly before 8 o'clock he (McGann) went out to get some coffee and cake; that on this trip he went to the arcade, and while there he heard the shooting; that after making his purchases he returned to the apartment and related to Dock and Schauer what he had witnessed in Mott street; and that Dock remained in the apartment until half past 9 o'clock, when he went out. Schauer corroborated Dock and McGann, and stated that he and Dock were constantly in the room together until half past 9, when the latter went out.

The defendant Eng Hing testified that on the evening of February 27, 1912, he lived at No. 12 Pell street with Yow Yue and Eng On; that at about 8 o'clock he left his room for the home of his cousin Wan Wah to get a letter; that on his way he went through the arcade, and as he neared the Mott street entrance he heard shots; that he became frightened, turned, and ran in the direction of Doyers street, and while thus seeking to escape he received a bullet wound in the thigh; that when he became convinced that he was being pursued by two men he turned and said, ‘Brethren, I don't belong to any society, don't strike me;’ that he afterwards identified these two men as Li Fong and Frank Yee; and that when he was discharged from the hospital he was arraigned for the murder of Lee Kay and remanded to the Tombs prison.

Albert Donnelly, a driver who resided at 15 Franklin street, testified that in the evening of the shooting he stood at the corner of Mott and Park streets nearly opposite the Mott street entrance to the arcade, and that he heard shooting; that he saw one Chinaman come down from the arcade to the foot of the stairs and immediately turn back, while, in the same instant, two Chinamen came down the street and began firing into the arcade.

Edward Kadin, in the business of delivering newspapers, testified that at about 8 o'clock in the evening of February 27th he was walking on Mott street from Chatham Square to Pell street; that as he approached 18 Mott street he heard shots; that he saw a Chinaman come out of the arcade and immediately turn back, and at the same time two Chinamen ran into the arcade and fired shots.

Eng Hue Yuen testified that the defendant Eng Hing lived with him at No. 12 Pell street, and that he saw the latter leaving the room at about 8 o'clock, without any pistol on his person.

The foregoing outline presents merely the essential features of a trial singularly free from errors and questions of law. The record, from beginning to end, discloses in greater amplitude of detail an issue of fact upon which the verdict is conclusive unless we can say that it is against the weight of the evidence, or contrary to law, or that justice requires a new trial. We shall first consider the record of the trial, and then separately discuss the merits of the application for a new trial on the ground of newly discovered evidence.

[1][2] The first and most important fact in the consideration of this appeal is that there were six eyewitnesses to the shooting which resulted in the wounding and ultimate death of Lee Kay. There were Lee Po Ming, Hom Chung, and Lai Look, who were inside of the store, and Florence Wong, Grace Mack, and Lai Hay, who were in the street. All of the witnesses positively identified the defendants as the men who did the shooting. Then there is the testimony of Li Fong and Frank Yee, who were in the room back of the store, and who rushed out in pursuit of two Chinamen running toward the arcade and whom they...