
    [No. 3660.]
    Hung Ah Hang v. The State.
    Murder—Fact Case.— See the statement of the case for evidence held insufficient to support a conviction for murder of the first degree.
    Appeal from the District Court of Tom Green. Tried below before the Hon. William Kennedy.
    The appellant in this case, a Chinaman, was convicted in the first degree for the murder of another Chinaman, one Chan Sing, in Tom Green county, Texas, on the 20th day of July, 1884.
    Doctor Branch was the first witness for the State. He testified that, some time during the year 1884, he was called to Ben Ficklin with the jury of inquest to view a dead body. A part of the dead body of a human being was found at the junction of the South and Middle Concho rivers. Witness had not previously heard of a man being missing. Witness examined the remains. He saw a shirt about the body, but did not now remember whether or not it was on the body. The remains were a part of those of a middle-sized person,— that person, in the opinion of the witness, being a man. He saw nothing about it to indicate the feminine gender. The only part of the body the witness saw was a part of the trunk, the remains of the genital organs being a part of the penis. There were no mammary glands. The arms had been cut or sawed off at the shoulders. The legs had been taken off near the body. He did not remember at what particular point the head had been taken off. Among those present, besides the jury of inquest, when the witness examined the remains, were E. 0. Smith, constable, M. B. Pulliam, Jim Mullins and Louie, the Chinaman. Witness did not go out at any other time during the year 1884 to examine the trunk of any other person. The body spoken of by the witness was found in the Concho river, in Tom Green county, Texas. The witness did not think that water could have severed the legs and head. They must have been cut off, but decomposition had advanced too far for the witness to designate the instrument used. Witness was a practicing physician and surgeon.
    Cross-examined, the witness said that he could only give his opinion as to the sex of the remains. He believed the remains to be those of a man, but could not state it to be a fact.
    Louie, a Chinaman, was the next witness for the State. He testified that he was present when the body of a man was found in the Concho river. It was found at the point where the two rivers, the South and the Middle Conchos, unite. The body was destitute of head and legs when found. Witness went back to the body on the day after the discovery, with the coroner’s jury. A shirt was found on the body, which the witness identified as the shirt of Chan Sing, a Chinaman. Witness knew Ah Hang, the defendant. Chan Sing lived on the place of Jim Spears and the defendant Ah Hang, Ah Ho and Si King lived with him. The witness last saw Sing on July 19, 1884, which was about two weeks before the discovery of the dead body in the river. Sing was then in San Angelo, and went thence back to Spears’s farm, or started to go there. Witness missed Sing on the first Monday after July 19, 1884. When the witness next saw the defendant he asked him where Sing was, and if he was sick. This was on the first Monday after July 19. Defendant did not answer for some minutes, when he said that Sing came to town. Witness disputed that statement, and told defendant that whenever Sing came to town he always called at the laundry to see Sing Kee, or else at witness’s house to see witness. Witness had never seen Chan Sing since July 19, 1884. When the defendant came to town the next Wednesday, witness asked him if Sing was coming to town. He said no. When he, defendant, came to town on the following Saturday, the witness again asked him if Sing was coming to town. He again said no. Witness then took his gun and went out to the farm and stayed all night. Hobody said anything about Sing. Witness then asked those present (Ah Hang, Ah Ho and Si King) about Sing, and where he had gone. In ten minutes the defendant answered that Sing had gone-to town; that he. had taken off $300. Si King said that he did not see Sing any more after he left at 3 o’clock, going to town. Si King made this statement to the witness in the presence of the defendant and Ah Ho. Ah Hang, Ah Ho, Si King and Chan Sing lived together on the Spears farm, and raised vegetables, which they sold in San Angelo. Witness knew the shirt found on the body belonged to Chan Sing, because he owned one just like it, which he bought at the same store at which Chan Sing bought his. Chan Sing was the witness’s best friend.
    Cross-examined, the witness said that Chan Sing left San Angelo for his home about 4 o’clock on Saturday, July 19,1884, since when witness had never seen him. Defendant came to town on regular days afterwards. The full name of the defendant was Hung Ah Hang. The other defendants were named respectively Hung Ah Ho and Si King.
    D. Q. McCarty testified, for the State, that he was a member of the coroner’s jury before which the inquest over the dead body of a man found in the Concho river was held. The body was found near the confluence of the South and the Middle Concho rivers, in Tom Q-reen county. The head, legs and hands were gone. The body was that of a man. Of this the witness was certain, as he saw a part of the penis adhering to the body. The skin was of the color of a Chinaman. It was the body evidently of a small sized man. Witness knew Chan Sing, the Chinaman. He lived at the Spears farm, with this defendant and two other Chinamen. He was a man of small stature,— his height not exceeding five and a half feet. The body was found about a mile and a half from the house occupied by defendant, Chan Sing and the two other Chinamen. If the body had been that of a mulatto or a Mexican, and had lain, as this one had apparently, in the water some weeks, the color of the skin would perhaps have resembled the color of the skin adhering to this body.
    
      J. D. Spears testified, for the State, that he was the sheriff of Tom Green county in July, 1884. Witness went out to his farm to look around for Sing, but failed to find him. He asked the defendant and the other Chinaman where Sing was, but they could or would tell him no more than that Sing went off on Sunday evening. Witness was out at his farm to prosecute this search more than once, and the last time he went out he found Mr. Grigsby and others out there. It was proposed to subscribe a reward for the discovery of Sing if he was alive, or his body if he was dead. The Chinaman Louie said that he would give $40, and the defendant and the two other Chinamen said that they would give $20 each,— upon witness asking them if they would. From the house occupied by the China-men to the forks of the river, where the body was found, it was about a mile and a half. The defendant and two other Chinamen lived with' Chan Sing. When the talk about making up a purse to find Chan Sing was going on, the defendant appeared very nervous. He was then sitting in a chair, and he was so nervous that his feet would rattle on the floor. Witness knew of no person other than Chan Sing being missing at that time. Chan Sing’s trunk was broken open by the witness and those with him. It was found to contain clothing, pictures and papers, and some twelve or thirteen dollars and a nickel. There was a Mexican’s house about fifteen yards from the house in which the Chinamen lived. Mrs. Ohewning lived three or four hundred yards off. Others lived within four or five hundred yards.
    Mr. Grigsby testified, for the State, that he was on Spears’s place on the occasion spoken of by Spears. Nothing was found about the place of importance to the matter under investigation. Some papers, money, clothing, pictures and a cue were found in Sing’s trunk.
    Guadalupe Garcia testified, for the State, that the defendant, whom he knew, lived, in July, 1884, on the Spears place, with three other Chinamen whom he did not know. Witness knew Chan Sine1, if he was the little Chinaman called Sing, who lived on Spears’s place during a part of the year 1884. Witness saw the little Chinaman Sing he alluded to late on one Sunday evening, eating supper with the other three Chinamen. Witness lived about one hundred yards from the Chinamen, and worked for them sometimes in their garden. Witness was at the house of the Chinamen nearly every day. He was there on the Monday after the Sunday on which he saw them eating supper together, as testified to. Witness asked for Sing on that occasion. Defendant seemed to be mad; told witness that Sing was gone, and ordered witness to leave. Witness went there on that morning to get some vegetables. On the Sunday night in question, after the witness saw the Chinamen at supper, he heard a great uproar and noise in the Chinamen’s house. The noise sounded like a general fight was in progress. He heard blows struck, hallooing, screaming and crying. He heard what he took to be little Sing’s voice crying out in great distress. Witness never saw little Sing any more after that night when he saw him eating supper with the other Chinamen. About twro weeks after the witness heard the commotion in the Chinamen’s house, and after he missed the little Chinaman Sing, the body of a man was found in the river. Witness saw that body, and he saw and recognized the shirt on it as Sing’s shirt. Sing had worn that shirt two or three weeks, and witness had often seen it. Sing had on that shirt when he was at supper the last time that witness ever saw him. Defendant was one of the Chinamen who were at supper with Sing when witness last saw him.
    Cross-examined, the witness stated that he was a Mexican. He remembered the trial of this case before the justice of the peace. Witness talked to the lawyers for the State about this case on the day of this trial, but remembers no previous conversation with them about it. If he ever talked with the district attorney he did not remember it. He believed, on reflection, that he had talked with ■ the district attorney. He knew what would be done with him if he lied about this matter. The authorities wTould put him in jail and kill him. Witness was not in the Chinamen’s house when he last saw little Sing eating supper with the other Chinamen, but was then standing about fifty yards distant from the house. Witness did not testify for the State on the examining trial before the justice of the peace that the last he saw of little Sing he was hoeing in the garden.
    Mrs. Chewning was the next witness for the State. She testified that, during the summer of 1884, she lived on what was known as the Spears farm. Little Sing, this defendant and two other China-men lived in a house near the witness. Sing was a small, though comparatively heavy set man. The others were taller aud larger. The witness last saw Sing about 3 or 4 o’clock on Sunday evening, July 20, 1884. He was then going down the road towards his home. The house in which the Chinamen lived was east and south of witness’s house. On the night of Sunday, July 20,1884, witness heard a violent commotion in the Chinese quarters. She heard heavy blows, crying, screaming, etc., and four very loud yells. The blows sounded like some one beating some one else. The last cry died away gradually. Witness could not recognize the voice in distress, but it did not sound like the voice of an American, and did sound like that of a Chinaman. “Chinese don’t make a noise like other folks.” The noises described by witness were made about 10 o’clock at .night. Witness had not seen little Sing since that night.
    Cross-examined, the witness stated that she lived some three or four hundred yards distant from the Chinamen. 'Mo words were uttered during the row described by witness. There were one or two Mexican houses near the house occupied by the Chinamen,— one of them not more than one hundred and fifty yards off. Witness did not see the other three Chinamen with little Sing on that Sunday evening. She had no idea who was in the Chinamen’s house on the night of the row.
    James Mullins testified, for the State, that in July, 1884, he lived with his mother, Mrs. Chewning, on Spears’s place in Tom Green county, Texas. He knew Sing, the Chinaman. He last saw Sing leading his horse from his garden late on the evening of Sunday, July 20, 1884. He heard a violent noise at the Chinamen’s house that night, that indicated great punishment to some one. There was loud crying, hallooing, screaming, etc., and several violent blows were struck by some one upon the person of some one else. Witness was present when the decomposed part of a human body was recovered from the Concho river some time after the fight or fuss at the Chinamen’s house. The body had on two shirts, one of them a shirt which the witness had seen Sing wearing, or at least very like it.
    Cross-examined, the witness said that the shirt found on the body was an ordinary garment. It was a counterpart of the one he had seen Sing wear, though he could not swear positively that it was that identical shirt, since there might be from one to five hundred counterparts of that shirt in the county.
    Cassius Carter, the county attorney, testified for the defense that he was present and wrote down the testimony taken on the examining trial of this defendant. Guadalupe Garcia stated in his testimony on that trial that the last he saw of Sing, the missing Chinaman, he was hoeing in his garden on Sunday evening.
    Sing Kee testified, for the defense, that the defendant, Chan Sing and the other Chinamen were engaged together in the gardening business. He had never heard either say anything against the other. He once heard Si King say that he would leave little Sing in his fence. The attempt of the counsel to explain to the witness the difference between threat and thread was a signal failure, and the cause was closed.
    
      Ho brief for the appellant.
    
      J. H. Burts, Assistant Attorney-General, for the State.
   White, Presiding Judge.

The appellant was indicted, tried and convicted for the murder of one Chan Sing, and his punishment was assessed at imprisonment in the penitentiary for life.

The evidence is wholly insufficient to sustain the conviction, and the judgment is reversed and the cause remanded.

Reversed and remanded.

[Opinion delivered June 27, 1885.]  