144 N.Y.S. 145 | N.Y. Sup. Ct. | 1913
The information laid before me charges the defendant with the violation of subdivisions 2 and 4 of section 752 of the Penal Law. So much of that section as applies to this case provides as follows: “ Any person who registers or. attempts to register as an elector knowing that he will not be a qualified voter in the district at the election for which such registration
The question presented for determination is whether the evidence presented to me in the depositions submitted establish that this section of the Penal Law has been violated by this defendant.
The defendant registered on October 17, 1913, in the eighth election district, in the second assembly district of the borough of Manhattan. In registering he stated his residence to be 103 Cherry street, and that he “ occupied ” a room on the second floor of that building; he also stated that he resided with a householder of the name of Manning; and that he had resided in said election district ‘ ‘ for nine months; ’ ’ and that when he last voted he “ lived at ” No. 370 Water street.
Under the section of the Penal Law quoted above, it becomes necessary to inquire, first, whether the defendant registered in the eighth election district of the second assembly district knowing that he was not a qualified voter in that district; or, second, whether the defendant knowingly gave a false residence when registering.
In order to be a qualified voter in the said eighth election district and competent to register therein, the defendant must have resided in said district for at least thirty days prior to that time. Election Law, § 162.
The evidence now before me shows beyond question that this defendant resided at the time of registration at 36 Morningside avenue, East. Thus the evidence discloses that the defendant lived at that address with
On June 12,1912, the defendant wrote the New York Telephone Company as follows: “In getting out the next issue of the telephone book I .would kindly ask you to put my residence address directly under my business address.”
During the time the defendant lived at 36 Morning-side, East, all the bills of the telephone company were addressed to the defendant at that address and presumably these bills were paid by him.
These facts, in the absence of contradiction, demonstrate that the defendant lives at 36 Morningside, East, with.his mother and brother, and that he has lived at that place from about April 19, 1912. This address is his permanent, fixed place of abode or home.
I attach little weight to the contention that the fact that the defendant lived at 36 Morningside,East, does not tend to show that he did not have his legal residence at No. 103 Cherry street. Generally speaking, the term ‘‘ residence ’ ’ as used in the Election Law is synonymous with the term “ domicile.” It imports not only an intention to reside at a fixed place, but also personal presence in that place, coupled with conduct indicative of such an intention. It is the fixed and permanent home of the elector from which the Election Law contemplates that the elector shall register and vote. This proposition I deem to be well sustained by authority. State Const., art. 2, § 1; Election Law, § 162; People v. Platt, 117 N. Y. 159; Matter of Collins, 64 How. Pr. 63; People v. Acritelli, 57 Misc. Rep. 574; Matter of Newcomb, 192 N. Y. 238.
A “ voting residence ” as distinguished from the place where one actually and habitually dwells is not recognized by the law.
Upon reflection it must be apparent that such is the meaning of the term ‘ ‘ residence, ’ ’ as that term is used in section 162 of the Election Law.
Suppose an elector owns or leases a dozen pieces of property in as many assembly districts in the county. Can it be contended that he may at each election determine in which assembly district he will register and vote! Is it possible that an elector so situated shall be guided in determining where he shall
If such electors may vote in districts other than those in which they reside, the political control of the next assembly of the state might be entirely different from what it would be if only qualified electors of each district are permitted to vote.
For the reasons given, the motion to dismiss this proceeding is denied.
Motion denied.