Judgment unanimously reversed on the law and facts and a new trial granted. Memorandum: There was clear proof that defendant entered the home of his common-law wife, made repeated threats to kill her and eventually aimed and discharged a riñe at her. The bullet missed its mark, the wife fell to the floor and was injured by blows to the head from the rifle in the hands of appellant. In this state of the proof the wife and two daughters were permitted to testify over objections of prior threats made by defendant and prior assaults committed by him on the spouse over a period of five years. This was error. (People v. Dales, 309 N. Y. 97, 101.) Here there was no claim that the assault was the result of any accident or mistake. Its probative value to show intent or motive with which appellant acted was merely cumulative. The proof on this subject from the eyewitnesses was overwhelming. The only purpose the evidence could have served was to inflame the minds of the jurors. (Appeal from judgment of Wayne County Court convicting defendant of assault first degree.)
Present — Williams, P'. J., Bastow, Goldman, Henry and Marsh, JJ.