119 N.Y.S. 833 | N.Y. App. Div. | 1909
The indictment charged the defendant with the crime of false registration in registering in the fifteenth election district of the thirty-first assembly district of the county of Mew York on the l'2th day of October, 1907, for the general election to be held on the fifth day of November thereafter, he not being at the time a citizen of the United States or a resident of that election district. By a clerical error in the indictment the. number of the assembly district in which the defendant registered was erroneously stated to be the thirty-first when it was the thirty-fifth. On this appearing, shortly after the commencement ■ of the trial, the Attorney-General moved- to amend the ■ indictment by substituting the word “ thirty-fifth ” for the word “ thirty-first ” in the designation of the assembly district. ‘ Counsel for the'defendant objected on the ground that the court Was without authority to allow the amendment, and in answer to questions put by the court also claimed that the amendment would prejudice the rights of the defendant on the merits, and that he was taken by surprise. The court grantéd the motion to amend, and offered to give.the defendant an adjournment to prepárete meet the'indictment as amended. • An exception was duly taken, by the defendant, and his counsel stated that he asked for no adjournment. That exception is urged as ground for reversal, and since it
The amendment related to the descrijition of. the places where the crime was committed, and we are of opinion that it was clearly authorized by this section. * ■
The People presented evidence tending to sustain the false registration upon the issues presented by the indictment and the plea of not guilty both with respect to whether the defendant was a citizen and entitled to register anywhere, and with respect to whether he was a resident of the election district in which he. registered and would be such for the period of thirty days prior to the election. The evidence was sufficient to sustain the conviction on the ground that the defendant was not a resident of the district, but the evidence was conflicting upon that point and both issues were submitted to the jury. It cannot be known, therefore, from the verdict but that the conviction was upon the ground that the defendant was not a citizen of the United States. Upon the issue of citizenship the People offered a deposition made by the defendant before the inspectors of election at the time he registered, in which he stated, among other things, that he was forty-five years of age ; that he was born in England; that he was naturalized at Bridgeport, Conn., in the year 1887 and that he had never before voted. The People then called two deputy superintendents of election to testify to an interview between them and the defendant at the time one of them served a subpoena upon him to attend forthwith before the State Superintendent of .Elections on the twenty-ninth day of the month in which he registered. Their testimony was in substance that he stated that lie had his first papers but not his second papers; that he received his first papers in Bridgeport, and that-he Siiid “something about his papers being burned in a fire,” and that
Eeliance is placed on section 392 of the Code of Criminal Procedure, which provides as follows : “ The rules of evidence in civil cases are applicable also to criminal cases, except as otherwise provided in this Code.”
It is at least doubtful whether the Legislature intended that the provisions of section 921 of the Code of Civil Procedure should apply to certificates made without the jurisdiction of this State. There is room for argument that if the Legislature had intended to allow the use of certificates of this nature, which are not very satisfactory evidence and are open to mistakes if not abuse, made without the State, it would have required that the signature of the elerk and the seal of the court be authenticated. There is no limitation in the provisions of the section, and if they were not intended to apply to certificates made within the State only, then they authorize the use of such certificates made anywhere in the world. Moreover, even if that section were applicable, it is hot entirely clear that these certificates contained evidence of the nature authorized by its provisions, and it is manifest that in some respects the evidence they contain wrould not be authorized, for they relate in part, at least, not to the inability of the clerk to find a record, but to the contents of the records found. If it had been intended that this section should apply to certificates from all over the world, it would seem that the Legislature would have taken the precaution to have required that they be exemplified in a manner that would tend to insure their genuineness and reliability, as was done by the Congress with respect to the public acts, records and judicial proceedings ” of other States, to which each State, by virtue of section 1 of article 4 of the Federal Constitution, is inquired to give full faith and credit. (See Trebilcox v. McAlpine, 46 Hun, 469.) It may be further observed that it is improbable that
In the view we take of the case, ho vs ever, it is not necessary to decide that question on this appeal. Our State Constitution contains no provision similar to the 6th amendment of the Federal Constitution, which provides as follows : “ In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the.crime shall have been committed, which district .shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.”
It has been held by .the Court of Appeals that this provision of the Federal Constitution applies to criminal prosecutions in the Federal courts only, and that a defendant in a criminal prosecution in a State court is not entitled to the benefit thereof. (People v. Fish, 125 N. Y. 136, 151.) The same protection that is afforded-by the Federal.Constitution to a defendant in a criminal prosecution in the Federal courts is afforded by dur Bill -of Eights (R. S. part 1, chap. 4 [1 R. S. 94], § 14; now Consol. Laws, chap. 6. [Laws of 1909, chap. 14], §12) to a defendant in a criminal prosecution in the courts of this State. That provision of our Bill of Eights is as follows: “In all criminal prosecutions,, the accused has a right to a speedy and public trial, by an impartial jury, and is entitled to be
There being no guaranty in this regard in our Constitution, it would be competent for the Legislature, which enacted the Bill of Bights, to maké exceptions thereto, and since the Legislature has provided that the rules of evidence shall be the same in criminal as in civil cases, if the provisions of section 921 of the Code of Civil Procedure authorize the reception in evidence of a certificate made without the State, there might be room for- argument that this should be regarded as an exception to the Bill of Bights. Any doubt there might be on that point is removed by the provisions of section 8 of the Code of Criminal Procedure, which, so far as material, are as follows: “In a criminal action the defendant'is entitled: * * *
“ 3. To produce witnesses in his behalf, and to be confronted with the witnesses against him, in the presence of the court, except that where the charge has been preliminarily examined before a magistrate, and the testimony reduced by him to the form of a deposition in the presence of the defendant, who has either in person or by counsel cross-examined or had an opportunity to cross-examine the witness, or where the testimony of a witness on the part of the people has been taken according to the provisions of section two hundred and nineteen of this Code, the deposition of the witness may be read upon its being satisfactorily shown to the fcourt that he is dead or insane, or cannot with due diligence be found in the State.”
It may be said that this decision.will render it difficult to prove that a person was not naturalized in another State. The answer to that objection is that it will be no more difficult than in other criminal prosecutions in which the issuance of commissions in behalf of the People has not yet been authorized, and moreover the inspectors of election are authorized to require the production of naturalization papers or certified copies, and could not be 'compelled .to register without one or the'other unless other evidence winch satisfies a majority of them of' his right to register is presented to them. (Election Law [Glen. Laws, chap. 6; Laws of 1896, chap. 909], § 34,
. It follows, therefore, that the conviction múst be reversed and a new trial granted.
Patterson, P. J., and Clarke, '«L, concurred; Ingraham and McLaughlin, JJ., concurred in result.
Judgment reversed and new trial granted. Settle order on notice.