
    STATE v. TOM SUEY.
    
    October 23, 1925.
    No. 24,797.
    Conviction for assault sustained by evidence.
    The evidence sustains the verdict finding the defendant guilty of assault in the first degree.
    See Assault and Battery, 5 C. J. p. 788, § 328.
    Upon information of the county attorney for Hennepin county defendant was charged with the crime of assault in the first degree, tried) in the district court before Leary, J., and a jury, and found guilty as charged in the information. Defendant appealed from the judgment and from an order denying his motion for a new trial.
    Judgment and order affirmed.
    
      Hutchinson, Bellew & Seland, for appellant.
    
      Clifford L. Hilton, Attorney General, Jamies E. Marlcham, Deputy Attorney General, Floyd, B. Olson, County Attorney, and WillAam C. Compton, Assistant County Attorney, for respondent.
    
      
       Reported in 205 N. W. 449.
    
   Dibell, J.

The defendant was convicted of assault in the first degree and appeals from the judgment of conviction and from the order denying his motion for a new trial.

In the evening of October 30, 1924, Wong Sai Wing was shot while sitting at a table in his laundry. The state’s claim is that the defendant Tom Suey shot him. Both are Chinamen. They had known each other for several years. Neither had a personal grievance against the other. The two belonged to different tongs. Suey was a Hip Sing and Wing was an On Leong. There is testimony that Suey said to one of his witnesses, who was a detective at times, that there was a tong war on, and inquired of him about watching the club to which he belonged.

Wing assumes to identify Suey positively as his assailant. Immediately upon the shooting he said to those coming to his relief that Suey shot him. He may have been mistaken in his judgment; but if he did not state the fact it seems much more likely that he was testifying falsely wilfully than that he was mistaken. A grocer in a store adjoining the laundry, and his young lady clerk, saw Wing’s assailant. They go no farther than to say that he resembled or was similar in appearance to Suey; not much more than to indicate that he was a Chinaman.

Suey denied that he shot Wing. There is testimony that he was elsewhere when Wing was shot. Some of it came from members of his tong; some from those who were not Chinese. The testimony was not all consistent. There is evidence that Suey was intoxicated.

The issue was to be determined largely upon the assertion of Wing and the denial of Suey supported by his evidence of an alibi, though there were circumstances making against the claim of the defendant. He had been convicted two or three times in connection with the sale of narcotics. His credibility like that of Wing was for the jury. The question of guilt, which was substantially a question of identification, was for the jury subject to the supervision of the trial court. State v. Shansy, 164 Minn. 10, 204 N. W. 467, and cases cited.

There was no error in showing that Wing and Suey belonged to different tongs. The record does not present the defendant’s claim that counsel was guilty of misconduct in his argument to the jury nor that the defendant’s counsel was curtailed in his argument.

Judgment and order affirmed.  