Los Angeles herald., 1892-08-25
AUBLE BORED A HOLE,
AND KoNG's SHOOTING AT IT WAS
ASSAULT TO MURDER.
Fortunately for the Policeman He Was
Not in the Line of Fire-The su-
preme Courts Decision in
Lee Kong's Appeal.

court was received yesterday by Su-
preme Court Clerk Ashmore. 1t was in
the case of The People of the State OF
California, respondent, vs. Charlie Lee
Kong, appellant. Charlie Lee Kong
was convicted in Los Angeles last spring
of the crime OF an assault with intent to
commit murder, his intended victim be-
ing Detective Auble of the police force,
and has prosecuted the appeal, insisting
that the evidence is insufficient to sup
port the verdict. His attorneys were q.
@. Stephens and HI. @. Grant. The
court says, in discussing the appeal:
"The facts in the case are novel in the
extreme, and when applied to principles
Of criminal law, a question arises for de-
termination upon which counsel have
cited no precedent.
"a policeman secretly bored hole in
the roof of appellants building for the
purpose of determining, by view from
that point of observation, whether or
not he was conducting therein garnb-
ling or lottery game. This fact came to
the knowledge of appellant, and upon a
certain night, believing that the police
man was upon the roof at the point of
observation, he fred his pistol at the
spot. He shot in no fright, and his aim
was good, for the bullet passed through
the roof at the point intended; but very
fortunately for the officer of the law, at
the moment of attack he was upon the
roof viewing the scene of action at an
opening, some distance from his con-
templated point of observations, and
thus no substantial results followed
from appellants fire.
"The intent to kill is quite apparent
from the evidence, and the single ques-
tion is presented, DO the facts stated
constitute an assault? Our criminal
code defines an assault to be AN un-
lawful attempt, coupled with present
ability, to commit violent injury upon
the person of another 1t will thus be
seen that to constitute an assault, two
elements are necessary, and the absence
of either is fatal to the charge. There
must be an unlawful attempt, and there
must be a present ability to inaict the
injury. In this case it is plain that the
officer. It is equally plain that this at
intent to kill was present in his mind at
had been the result, under the facts as
disclosed, there was no legal justification
to avail him. The fact that the officer
was not at the spot where the attacking
party imagined he was, and where the
bullet pierced the roof, renders it no
less an attempt to kill"
The court then discusses the point as
to whether or not the appellant had the
Oh irxyk IN mi ich hiu
pose, and says, after quoting number
of authorities:
1T is not the purpose of the court to
draw nice distinctions between an at
tempt to commit an offense and an as
sault with intent to commit the offense,
for such distinctions could only have
the effect to favor the escape of crimi-
nails from their Just deseivings. And
in view of the fact that all assaults to
commit felonies can be prosecuted as
attempt, we can see no object in carry
ing the discussion OF the subject to any
greater length.
'In this case the appellant had the
present ability to inflict the injnry. He
knew the officer was upon the roof, and
knowing that fact, he fired through the
roof with the full determination of kill
ing him. The fact that he was mis-
taken in Judgment as to the exact spot
where his intended victim was located,
is immaterial. That the shot did not
fulfill the mission intended was not at
tributable to forbearance or kindness
of heart upon defendants part; neither
did the officer escape by reason of the
fact of his being go far distant that the
deadly missile could not harm him. He
was sufficiently near to be killed from a
bullet from the pistol, and his antag-
onist fred with the intent of killing
him. These acts disclose an assault to
murder as fully as though a person
should fire into house with the inten-
tion of killing the occupants who for
tunately escape the range of the bull
let." M
After referring to several cases the
court concluded as follows:
"The fact of itself that the policeman
was two feet or ten feet from the spot
where the fire was directed, or that he
was at the right hand or at the left
hand, or behind the defendant, at the
time the shot was fired, is immaterial
upon this question. That element OF
| the case does not go to the question OF
present ability, but pertains to the un-
lawful attempt. Let the judgment and
order be affirmed"
The opinion is by Justice Garoutte,
and concurred in by Justice Paterson
and Harrison.
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