
    [No. 10,767.
    In Bank.]
    Sept. 7, 1882.
    PEOPLE v. CHIN AH HONG.
    Assault -with Deadly Weapon—New Trial—Newly Discovered Evidence.—The defendant was convicted of an assault with a deadly weapon, and moved for a new trial on the ground of newly discovered evidence. The affidavit of the proposed witness, was: “Two China-men came behind Lee Wing (the prosecutor); one pulled him down, and the other struck him. * * * Affiant is positive Chin Ah Hong, the defendant, is not the mqn who struck Lee Wing.
    
      Held: The affidavit does not distinctly state that the defendant took no part in the assault.
    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.
   McKlNSTRY, J.:

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.

Morrison, C. J., and Boss, Sharpstein, Myriok, McKee, and Thornton, JJ., concurred.  