People v. Thau

• Decision Date: 11 July 1916
• Citation: 113 N.E. 556,219 N.Y. 39
• Parties: PEOPLE v. THAU.
• Court: New York Court of Appeals Court of Appeals

219 N.Y. 39

113 N.E. 556

PEOPLE

v.THAU.

Court of Appeals of New York.

July 11, 1916.

Appeal from Supreme Court, Appellate Division, First Department.

Louis Thau was convicted of assault in the second degree. From a judgment of the Appellate Division (168 App. Div. 842,154 N. Y. Supp. 470) reversing solely for errors of law the judgment of the County Court of Bronx County convicting accused, the People appeal. Judgment of the Appellate Division reversed, and judgment of the County Court affirmed.

Hogan, J., dissenting.

Francis Martin, Dist. Atty., of New York City, for the People.

Abraham Levy and Max S. Levine, both of New York City, for respondent.

WILLARD BARTLETT, C. J.

The indictment charged the defendant with having assaulted one Samuel Schaletsky (whose true name appears to have been Samuel Skiletsky) in the borough of the Bronx on the 15th day of September, 1914, by striking him with a bottle. The defense was an alibi. The people were permitted to introduce testimony, over the objection and exception of the defendant, tending to prove that he had visited the complainant's place of business about two weeks before (to wit, on the 2d day of September, 1914) with a large number of other persons accompanied by a walking delegate, so called, who warned the complainant against working for a nonunion shop, and that on this occasion the defendant destroyed about $50 worth of garments belonging to the complainant by pouring ink upon the goods out of a bottle which he had brought with him. The Appellate Division has reversed the judgment of the County Court upon the conviction of the defendant on the ground that it was error to admit evidence of this occurrence on September 2, 1914. In the opinion it is said that there was no question of identity in the case, that the evidence was not admissible as bearing upon the motive with which the assault was committed, and that the two occurrences were so dissimilar that the proof had no tendency to establish a common intent. We are unable to agree with the learned court below on any of these points.

[1][2] The defense of an alibi raised in the most direct manner possible an issue as to the identity of the person who assaulted the complainant on the 15th of September. Any fact tending to show that the complainant was not mistaken in alleging that that person was the defendant was relevant to that issue. If the defendant to the knowledge of the complainant had visited his shop within a fortnight and had then criminally destroyed some of his goods, that fact would be likely so to impress the mind of the complainant as to lessen the probability that he was mistaken concerning the identity of his assailant on the 15th of September.

[3][4] While it may not have been necessary for the prosecution to establish a motive for the assault alleged in the indictment, it was entirely proper for the people to prove a motive if they could; and it seems quite clear to us that the occurrences of the 2d of September had a tendency to show that such a motive existed in the objection on the part of the defendant and his associates to the conduct of the complainant in working for a nounion shop. The learned judge who wrote for the Appellate Division says that it does not appear that the complainant did work or ever had worked for a nonunion shop. The testimony of the complainant, however, indicates clearly that the delegate who came to his place of business with the defendant on the 2d of September believed that the complainant was working for nonunion shops and justifies the inference that the defendant shared that belief. Otherwise it is difficult to account for his action in pouring ink upon the complainant's goods. It seems to us that the occurrences on both occasions as narrated by the witnesses for the prosecution were so similar that they tended to establish a common intent, and hence that the evidence as to the occurrences of September 2d was admissible on that ground also.

[5] The rule which excludes evidence of other crimes than that which is charged in the indictment unless the evidence is relevant to the issue or issues on trial should be strictly enforced. On the other hand, where the evidence is relevant, the trial court should not hesitate to receive it notwithstanding the fact that it tends to prove the defendant guilty of another...