I dissent. It is conceded by the majority opinion that a conclusion of accidental death follows from the disputable presumption that the killing was not criminal, but holds such conclusion was dispelled by the evidence for respondent that decedent was shot twice in the back — this constituting a "proved fact" within the meaning of the rule adopted by the opinion. It may be assumed on appeal that a fact is proved and such a presumption dispelled within the meaning of the rule when, for instance, a witness for the party claiming the presumption testified directly to the contrary, or when the uncontradicted testimony offered by such a party is irreconcilably opposed to the presumption. But such an assumption is not to be indulged if in determining whether a fact has been proved it is necessary to consider the probative force of the evidence. In every case the presumption and the other evidence must be considered together. In either of the instances I have suggested, only one inference could be drawn from the evidence and that would be in favor of the other party. Of course, where opposing inferences may be drawn the one found by the trial court will not be disturbed on appeal.
The main opinion proceeds on the theory that, as matter of law, only one inference is deducible from the evidence offered by respondent and that therefore the presumption *Page 11 has been overcome. In my opinion the evidence is susceptible of two inferences — either that the killing was not intentional or that it was murder.
The circumstances are these: Suddenly several shots were heard and two bullets were found in different portions of decedent's back. Wong Ming Yin went immediately to the scene. He saw no other person in the vicinity. No smoke was visible, no weapons were found and no one was seen or heard running away. The only statement made by the wounded man was to give his name. It may be remarked that if we were considering whether the foregoing evidence established the corpus delicti it could hardly be claimed we would not be bound to uphold a finding either that the death was or was not caused by criminal means.
In appellant's third amended answer it is alleged that Fong Wing's death was directly caused by highbinder acts or by other unlawful acts and personal disputes and tong wars which resulted in his murder. The finding is a negation of this defense. Concerning the evidence admitted under the above allegations of the answer as tending to establish a motive for the killing it may be pointed out that several settlements had been made by the officers of the steamship company, of whom the deceased was one, with the dissatisfied stockholders; that six months intervened between the request for police protection and the shooting; that deceased was not a member of a fighting tong. One Fong Fat testified as follows: "Q. When you first heard the first shot, that is when the sound came to your ear, did you look out? A. I looked out as much as I could but I don't care to go out. Q. Why didn't you care to go out? A. There was more or less trouble going on you know. Q. In Chinatown? A. Among the tongs. The chances if I would go out I might get in the way, there is so much flying bullets anyways, and one is liable to catch it, so I did not care to go out." Man Quong Fong, general manager of the steamship company, testified that "After the death of Mr. Fong Wing we at that time and even up to the present time did not know the reason for his death." There is no evidence that the deceased took an active part in the affairs of the steamship company which led to the trouble between the officers and the stockholders, although *Page 12 he joined in the request for police protection. It was testified that no weapons were taken from Fong Wing.
In weighing the probabilities of the evidence it is conceivable to me that the trial court could have concluded, as against the circumstance upon which the prevailing opinion relies — that two bullets were found in Fong Wing's back — that it was more likely he came to his death as a result of a shooting affray between other Chinese than that he was the object of assassination. Upon the face of the evidence one theory would be no more speculative than the other. The fact that Fong Wing was unarmed and that there was an interval after the second shot might have indicated to the trial court that the shooting was between other persons. Under either theory those responsible for the shooting would naturally disappear and take their weapons with them.
Evidence of the presence or absence of motive is always admissible in such cases and often is of a most persuasive character. It must be presumed from the record in this case and in favor of the finding that the court decided there was no motive for the killing. It may also have reasoned that if the shooting was intentional Fong Wing would have said more to his fellow countryman than to merely mention his name and that more than two of the bullets would have found lodgment in his body.
In the summary of the evidence I have not attempted to determine its probative value but have only considered the effect which the court below might have given to it. I cannot avoid the conclusion that the evidence would support either theory and that for this court to hold it could not have the effect stated in the findings is to invade the province of the trial court. It seems plain to me beyond controversy that in arriving at the conclusion that only one inference could be drawn from the evidence the majority opinion must of necessity have passed on its probative effect, for there is no presumpton or other rule of law that the presence of two bullets in a person's back is sufficient proof of murder. I do not think it can be held on appeal that this circumstance avails as matter of law against all the other facts and circumstances which the trial court may have inferred from the evidence, for before it can be said that such a circumstance is irreconcilably *Page 13 opposed to the presumption its probative effect must be determined.
Rehearing denied.
Lawlor, J., and Sloane J., dissented.
Waste, J., was absent.