99 N.Y.S. 897 | N.Y. App. Div. | 1906
On the 10th day of October, 1905, Barnet Mendelsohn and his son Jacob appeared before the inspectors of election sitting as a registration board for the eighteenth election district of the second Assembly district of the county of New York and registered for the purpose of voting at the next ensuing general election as residing with one Block on the first floor of No. 55 Mott street, which was within such election district. On the twenty-eighth of October following the State Superintendent of Elections for the metropolitan elections district, through his deputies, had under investigation the correctness of this registration and whether or not the Mendelsohns actually resided at that place and were entitled to vote therefrom. In the course of such investigation the Mendelsohns had been sum
At the trial the People were required to elect upon which count of the indictment they would go to the jury and they thereupon selected the first. The jury rendered a verdict of guilty and from the judgment of conviction entered thereon and an order denying a ■ motion for a new trial the defendant appeals.
Since the argument of this appeal this court has decided that the law creating the office of State Superintendent of Elections for the metropolitan elections district is constitutional and a valid exercise of legislative power (Matter of Morgan [In re Furey], 114 App. Div. 127) — hence it is unnecessary to farther discuss this question. The enforcement of it by the Superintendent or his deputies does not involve the exercise of judicial power. (People ex rel. Bender v. Milliken, 185 N. Y. 35.) The defendant proved by the cross-examination of Fuchs that he had been a Deputy State Superintendent of Elections for seven years. Section 7 of the Metropolitan Elections District Law (Laws of 1898, chap. 676), as amended by chapter 689_ of the Laws of 1905, provides that: “The Superintendent, his chief deputy, and not more than ten deputies duly designated by the Superintendent for that purpose under his hand and seal" of office are hereby authorized and empowered to administer oaths and affirmations in the usual appropriate forms to any person in any matter or proceedings authorized as aforesaid and in all matters pertaining or relating to the elective franchise and to take and administer oaths and affirmations in the usual appropriate forms in taking any affidavit or deposition which may be necessary or required by law or by any order, rule or regulations of the Superintendent for or in connection with the official purposes, affairs, powers, duties or proceedings of said Superintendent or deputies or any official purpose lawfully authorized by said Superintendent.”
The original designation by the Superintendent of Fuchs as one of the deputies authorized and empowered to administer oaths was lost and a letter-press copy was introduced in evidence by the People. The loss of the original and the inability of Fuchs to find it was
Nor do I think it was incumbent upon the People to prove that the State Superintendent and Fuchs had taken and filed their respective oaths of office. Proof, however, was given to the effect that Morgan was acting as State Superintendent and also that Fuchs was acting as a deputy and administering oaths in connection with his duties as such. Hence, both were at least officers defacto.
In People v. Cook (8 N. Y. 67) the court held that a. challenged voter swearing falsely before a de facto board of inspectors was liable to the same punishment as if the oath had been administéred by inspectors de jure. The same rule was, in effect, reiterated in Lambert v. People (76 N. Y. 220); in People v. Hopson (1 Den. 574) and in Schiff v. Leipziger Bank (65 App. Div. 33). In State v. Hascall (6 N. H. 352) the court held that it was sufficient prima facie, on an indictment for perjury, to show that the person by whom the oath was administered was an acting magistrate and that the evidence of the individual himself was admissible for that purpose.
In Morrell v. People (32 Ill. 499) it wás held that proof that the person before whom the oath was taken habitually acted in the capacity of a particular officer was only prima facie evidence of the fact, but until rebutted by competent proof it was sufficient without proving the appointment or commission.
In Keator v. People (32 Mich. 484) it was held that evidence that the oath was administered in open court by one who was acting as deputy clerk was sufficient proof of his official character and in a collateral proceeding it was enough that he was- shown to be an officer de facto.
The most liberal view that could be taken under the rule laid down in the cases cited would be to hold that it was for the defendant to prove, if he could, that Fuchs had not been legally appointed or had not qualified so that he could administer an oath. Having received his appointment from the acting Superintendent this prima facie authorized him to administer the oath. The defendant, however, did not offer any affirmative proof to the effect that no oath of office had in fact been taken either by the Superintendent himself or by Fuchs, and he cannot now be heard to say that the deputy had no power to administer the oath to him or that the
It is also urged that the Mendelsohns were accomplices and, therefore, their testimony should have been corroborated.- They were guilty of the crime of false registration, and had the defendant been indicted for aiding them in the commission of that crime, there might be some force in the suggestion, but they were in no sense accomplices with the defendant in making the false statement. But even if the defendant’s contention in this respect were true, there was sufficient corroboration of their testimony that they did not live at the place from which they registered and that the defendant made the false affidavit.
The defendant proved his previous good character and requested the court to charge that good character created a doubt of defendant’s guilt. The court charged that it might create a doubt and the defendant was entitled to the benefit of it, but added, in determining how good the character was, and how much weight should be given to it, the jury might take into consideration the defendant’s testimony in his own behalf and the impression which he created while testifying. To this modification the defendant excepted. It was proper and incumbent upon the jury to weigh the defendant’s testimony, and they had a right, in doing so, to take into consideration his appearance upon the witness stand. It is true, in a
The court properly refused to charge that the Mendelsohns’ residence', for the purpose of registration and voting, was one of choice and that upon the evidence they had a right to register from the place they did. Their right to register and vote depended upon an actual, and not an imaginary residence. The court did charge, however, that it was immaterial where the Mendelsohns really lived if the defendant did, in fact, believe when he made the statement that they lived at Mo. 55 Mott street. This instruction was certainly as favorable to the defendant as he could claim.
After a careful consideration of the record I am of the opinion that the defendant had a fair trial; that the evidence sustains the verdict of the jury; and that no errors were committed which call for a reversal of the judgment.
The judgment and order appealed from, therefore, should be affirmed.
O’Bbibn, P. J., ■ Patteeson, Laughlin and Claeke, JJ., concurred.
Judgment and order affirmed. Order filed.