#### The People of the State of New York, Respondent, *v.*Anderson D. Gibbs, Appellant.

Upon trial of an indictment for assault with intent to kill, evidence showing the commission by the prisoner of another similar assault, at a different time and place, and upon a different person, is not competent.

(Argued October 1, 1883;

decided October 16, 1883.)

*471Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made May 1, 1883, which affirmed a judgment of the Court of Sessions in and for the county of Tompkins, entered upon a verdict convicting defendant of the crime of assault with intent to do bodily harm.

The material facts are stated in the opinion.

*S. D. Halliday*for appellant.

*Clarence L. Smith*for respondent.

What occurred directly after the affray at the house between defendant, Newman, Johnson and Budd was admissible as part of the *res gestos.*(Wharton’s Cr. Ev. [8th ed.], §§ 262, 263; 1 Wharton’s Am. Cr. Law, § 635; 1 Greenl. on Ev. [Redfield’s ed.], §108; *Commʼrs*v. Harwood, 4 Gray, 41; *Schnicker*v. People, 88 N. Y. 92; 3 Russell on Crimes [9th ed.], 288; *Coleman*v. People, 58 N. Y. 555; 1 Hun, 596; *Pontius*v. People, 21 id. 328; 82 N. Y. 339; *Hope*v. People, 83 id. 418; *Shipply*v. People, 86 id. 375; *Schnicker*v. People, 88 id. 192; *McKee*v. *People,*36 id. 113, 116; *Walters*v. *People,*6 Park. 15; *Rex*v. *Ellis,*6 B. & C. 145; 3 Russell on Crimes, 287, 288; 2 Colby’s Cr. Law, 192; *Jordan*v. *State,*22 Ga. 545,)

Miller, J.

The defendant was indicted for the crime of an assault with intent to kill one Mabee. He was tried at the Tompkins County Sessions and convicted of the crime of an assault with intent to do bodily harm. The evidence upon the trial showed that the alleged assault took place at or near the premises which were then occupied in part by Mabee, between the hours of seven and eight o’clock of the evening of the 20th of May, 1882. Mabee was in possession of the premises, and the defendant claimed the right to enter upon the same; his wife having been in occupation of a portion thereof, which she had left in the charge of Mabee. The defendant fired his pistol in different parts of the house, threatening to kill the people therein, and there was proof showing *472that one or more of the shots came very near the persons of some of the inmates, of- whom Mabee was one, • and that defendant’s intention was to have them do so. After this affray the defendant set fire to a bed, bedstead and slats, which he had thrown out of the window into the yard. The proof shows, that while this fire was burning, Mabee came out on the porch and the defendant fired two shots at him. After this, and at about half-past nine o’clock, one Johnson and two other persons came to this place, while the fire was still burning, and an altercation then ensued between the defendant and Johnson, and the defendant used harsh and violent language in regard to Mabee, and Johnson defended him. Under the objection of defendant’s counsel the prosecution then proved an affray between the defendant and Johnson, in which the defendant drew a pistol and attempted to fire it. The pistol went off in the scuffle, and Johnson knocked the defendant down and with the aid of two other persons tied him fast. The defendant was also indicted for this last offense. The objection made was not to the language which the defendant used in regard to Mabee, but to the evidence showing the affray between him and Johnson, and we think it was well taken. The effect of the evidence was to present to the jury testimony relating to another assault and to an entirely different transaction, which might well tend to prejudice their minds against the defendant in reference to the charge for which he was on trial. The allegation in the indictment was that he intended to kill Mabee, and testimony showing an intent to kill another person instead of Mabee could throw no light upon the question whether in the previous affray he had intended to kill Mabee. Mabee was not present at the time of the last affray and no act of violence of the defendant toward Johnson could possibly affect or injure Mabee. The judge in his charge referred to the transaction as evidence tending to throw light upon the temper or feeling of the defendant toward Mabee. It is difficult to see how the assault upon Johnson could bear upon the question as to defendant’s intention while engaged in an affray some two hours previously with Mabee.

*473The principle upon which evidence is admitted of other offenses to show the intent of the defendant in reference to the one for which he is upon trial has no application to a case of this kind. Evidence may be given, upon an indictment for passing counterfeit money to establish the passing of other bills of a similar character, for the purpose of showing the intent of the defendant in reference to the passing of the bill for which he is upon trial. So also, where guilty knowledge is an ingredient of the offense, evidence may be given of the commission of other acts of a like character where they are necessarily connected with that which is the subject of the prosecution either by some connection of time or place or as furnishing a clue to the motive on the part of the accused, as in the case of receiving stolen goods knowing them to be such. *(Coleman*v. *The*People, 58 N. Y. 555.) But this rule can have no application to two different assaults committed at different times and at different places and upon different persons where the motive in the one case could upon no sound principle be the same as in the other. It is very manifest that the defendant in the assault upon Johnson could not possibly have intended to kill Mabee and the testimony relating to the same could have no bearing whatever upon the offense for which the defendant was upon trial. Mor can the evidence be justified upon the ground that it was a part of the *res gestee.*The assault proven occurred some time after the assault upon Mabee, for which the defendant was upon trial and was at a different place. It did not arise directly from the altercation with Mabee, but originated in a quarrel with another and a different person in Mabee’s absence and without any intent at the moment to injure Mabee. Johnson had offended the defendant and he assaulted him with great violence, attempting to use his pistol, which was taken from him, and his aim and object was to injure Johnson. In the case considered the *res gestee*was the assault made by the defendant upon Mabee, and the assault upon Johnson did not in any form constitute a part of the former act.

IJnder the circumstances it is clear that the evidence was in*474admissible, and it being apparent that it had no relation to the ease upon trial it was erroneously, received.

As the judgment must be. reversed for the error already stated it is not necessary to consider the other questions raised.

The judgment and conviction should be reversed and a new trial granted.

All concur.

Judgment reversed.