#### The People of the State of New York, Respondent, *v.*Louis Thau, Appellant.

First Department,

July 9, 1915.

Evidence — crime — assault — warning not to work in non-union shop — transactions prior to assault.

In a criminal prosecution for assault in the second degree, it is reversible error to allow the prosecution to prove that two weeks before the assault the defendant with other persons accompanied a “walking delegate ” to the place of business of the complaining witness, where the delegate warned complainant not to work for a non-union shop, there being no evidence that the defendant heard the conversation with the delegate, or that the complaining witness ever worked in a non-union shop.

*843Appeal by the defendant, Louis Thau, from a judgment of the County Court of Bronx county, entered in the office of the clerk of said county on the 24th day of December, 1914, convicting him of the crime of assault in the second degree, and also from an order denying his motion for a new trial and in arrest of judgment.

*Abraham Levy,*for the appellant.

*Edward J. Glennon,*for the respondent.

Scott, J.:

The defendant was tried and convicted in the County Court of Bronx county of the crime of assault in the second degree. According to the testimony of the complaining witness and several members of his family, the defendant was guilty of a brutal and unprovoked assault. His defense was an alibi which was supported by the testimony of his employer and several of his fellow-employees. If this had been the whole case we could not have said that the verdict of guilty was unsupported by the evidence.

Over the objection and exception of the defendant, however, the court allowed the People to prove that about two weeks before the commission of the alleged assault the defendant, with a large number of other persons, accompanied a *“*walking delegate ” to the place of business of the complaining witness, and said delegate uttered a warning to complainant in case he should work for a non-union shop. It does not appear that defendant heard the conversation between the delegate and the complainant, or that the complainant then did or ever had worked for a non-union shop. We are unable to see the competency of this evidence. There was no question of intent in the case, nor of identity. The intent was sufficiently shown by the fact of the assault. As to the identity, it was made quite clear that the witnesses for the People knew defendant well, at least by sight. Furthermore, on the occasion of the visit in the company of the walking delegate the defendant was one of fifteen or twenty young men who were present. The admission of the evidence is sought to be justified on the ground that it *844served to prove a motive for the assault, and its tendency certainly was to impress the jury with the idea that the assault grew out of labor troubles. But there is no evidence that the complaining witness had had any trouble with any labor organ- ■ ization, or had done anything to incite the enmity of defendant or any member of such an Organization. On the contrary, he vigorously denied that he had had any such quarrel. Of course the two occurrences were so dissimilar that the proof had no tendency to establish a common intent. In short, the occurrence two weeks before the commission of the alleged assault was entirely independent of and disconnected with the crime alleged in the indictment, and was not admissible to explain the motive or intent with which the assault was committed. (Pe*ople*v. *Flanigan,*42 App. Div. 318; *People*v. *Romano,*84 id. 318, 320.) There are undoubtedly cases in which evidence of independent happenings is competent to support an indictment for a particular offense *(People*v. *Molineux,*168 N. Y. 264), but they are exceptions to the general rule, which is that it is error to receive in evidence, as proof of the offense charged, a happening or offense other than that charged in the indictment and unrelated thereto. “ Evidence which tends only to prove collateral facts and has not a natural tendency to establish the fact in controversy, should be excluded because (a) it would have a tendency to withdraw and mislead the attention and deliberation of the jury from the real issue under inquiry, and (b) would subject the accused to charges unconnected with that issue and against which he had no reason to prepare a defense.” *(People*v. *Thompson,*212 N. Y. 249, 251.) In our opinion the evidence to which we have referred falls directly within the condemnation of the case from which we have quoted, and its admission constituted reversible error.

The judgment appealed from must be reversed and a new trial granted.

Ingraham, P. J., Dowling and Hotchkiss, JJ., concurred.

Clarke, J.:

The vice of the evidence of the previous visit of the defendant to the complainant’s shop, as it strikes me, is that it was testi*845fied to that he had injured a quantity of material in the shop by pouring ink over it. This act of vandalism was likely to prejudicially affect the jury. For this reason I concur in the reversal.

Judgment reversed and new trial ordered. Order to be settled on notice.