gard for decency. The law is not so unreasonable as to exact such a condition.

It conclusively appears that defendant abandoned his wife without adequate support. The magistrate has held in effect that he did not intend in good faith to provide for her; she was bound, therefore, to become a charge upon the public. We think the order adjudging defendant a disorderly person was properly made, and that the order of the County Court must be

affirmed.

WOODWARD, JENKS and GAYNOR, JJ., concurred.

Judgment of the County Court of Kings county affirmed, with,

costs.

SUPREME COURT-SPECIAL TERM-NEW YORK.

May, 1907.

THE PEOPLE v. LOUIE WAY*.

(54 Misc. 488.)

(1). NEW TRIAL-NEWLY DISCOVERED EVIDENCE-CODE CRIM. PRO. §§ 465-7.

A motion for a new trial upon the ground of newly discovered evidence in support of an alibi will not be granted where such evidence is merely cumulative.

(2). SAME.

Where defendant on such a motion does not allege that the newly discovered witnesses upon the occasion of the assault for which he was convicted, discloses no effort to find them, at the trial, and it does not appear that they would testify if a new trial were granted and defendant was positively identified by witnesses at the trial, the motion will be denied. (3). SAME.

A new trial will not be granted because of defendant's attempt to discredit a witness whose motives are unimpeached and not even questioned and whose credibility is attacked only by hearsay.

MOTION for a new trial upon the ground of newly-discovered evidence..

William Travers Jerome, District Attorney (James R. Ely, of counsel), for plaintiff.

Luman A. Spaulding, for defendant.

LEVENTRITT, J. The defendant had been convicted of assault in the first degree. On the trial of the action he attempted to prove two defenses: 1. Justification, and, 2. An alibi. The alleged newly-discovered evidence which he now presents as a basis for a new trial is in support of the latter de*See People v. Way, 119 App. Div. 743-post.

fense. It is, however, of the same character as the evidence previously adduced, and is offered to establish the same fact. It is, therefore, merely cumulative, and, under subdivision 7 of section 465 of the Code of Criminal Procedure, is unavailing on an application for a new trial. Furthermore, if the witnesses now sought to be utilized were with the defendant under the circumstances detailed, his failure to produce them upon the trial has not been explained, and he has not shown the diligence which the law requires and which the exigency of his situation would have prompted. He does not even now allege their presence on the occasion of the assault, although he, of all others, should be cognizant of the fact. No effort to find them at the time of the trial is disclosed, and it does not appear that they would testify if a new trial were granted. The unusual circumstances under which two of the witnesses were discovered are almost conclusive of the improbability of their stories. These facts, viewed in the light of the positive identification of the defendant, not only by police officers, but by disinterested citizens, call for a denial of this application and negative the probability that a different verdict would be returned even if a new trial were to be granted. The only remaining ground urged is in the nature of an attempt to discredit the testimony of a witness whose motives are unimpeached, and not even questioned, and whose credibility is attacked only through the medium of hearsay testimony. A new trial will not be granted upon the basis of such an attack. (People v. Sullivan, 40 Misc. Rep. 308, 315.)

Motion denied.

SUPREME COURT-APP. DIVISION-FIRST DEPARTMENT,

May 10, 1907.

THE PEOPLE v. LOUIE WAY.

(119 App Div. 344.)

(1). EVIDENCE-ASSAULT-FIRST DEGREE.

In identifying the person shot and killed by the defendant it is not essential for the prosecution to show by the best evidence that they designated such person by his right name Evidence is admissible to show that he was known by that name. Such evidence is not directly hearsay

nor within the rule excluding hearsay.

(2). SAME.

The jawbone of the decedent, which was fractured by a bullet, is admissible to corroborate evidence that the defendant shot at decedent's chin, and to identify decedent.

(3). SAME.

The trial court may permit leading questions within reasonable discretion.

(4). SAME.

The disposition made by the court and grand jury of the cases of other persons arrested at the same time as the defendant is inadmissible to show that the officer making the arrest did not know who was guilty.

APPEAL by the defendant, Louie Way, from a judgment of the Supreme Court, rendered on the 28th day of May, 1906, at the New York Trial Term, convicting the defendant of the crime of assault in the first degree, and also from two orders denying, respectively, the defendant's motions for a new trial and in arrest of judgment.

Lyman A. Spalding [Forbes J. Hennessy, Daniel O'Reilly and George S. Scofield, Jr., with him on the brief], for the. appellant.

Robert S. Johnstone, Deputy Assistant District Attorney, for the respondent.

LAUGHLIN, J.:

The defendant was jointly indicted with two others for mur

der in the first degree, in feloniously causing the death of one Chin Yen, by shooting with a loaded pistol. Upon the trial the evidence tended to show that other pistols were fired at about the same time; and it being doubtful whether the defendant fired the shot which caused the death, the district attorney withdrew the charge of homicide. The court, in charging the jury, read and defined the provisions of the Penal Code with respect to the crime of assault in the different degrees.*

The People presented evidence tending to show, and which justified the jury in finding, not only that the defendant fired a pistol shot at the decedent, but that the bullet struck his chin. The defendant had a fair trial and the charge of the learned justice met with the approbation of counsel for the defendant, who volunteered the statement at the close thereof as follows: "The charge is eminently satisfactory to the defendant. I have no requests."

The appellant contends that the body of the decedent was identified as that of Chin Yen specified in the indictment, in whole or in part by hearsay testimony. It was clearly established that the man at whom the defendant shot, died as the result of a bullet wound inflicted at or about that time. It was only incumbent on the People to show that the defendant assaulted the individual named in the indictment. It was not essential for the People to show by the best evidence that they designated the person assaulted by his right name. It is sufficient to show that he was known by that name. Of course, evidence of the name by which a person is known is not the best evidence as to his true name, and in a sense it is hearsay; but it is not strictly hearsay or within the rule excluding hearsay evidence. (Wigmore Ev. § 667; Willis v. Quimby, 11 Fost. [N. H.] 487.) There is no evidence in the record tending to show that the name by which the decedent was spoken of by those who apparently knew him, was not his name or that there was any one

* See Penal Code, § 217 et seq.-[REP.