184 A.D. 93 | N.Y. App. Div. | 1918
This is an appeal by the defendant, Harry Ullman, from a judgment convicting him of the crime of willfully making a false statement of the result of a canvass of ballots cast at a primary election held in the twenty-eighth election district of the seventeenth Assembly district in the city and
The defendant was chairman of the board of inspectors in said district, and is charged in the first count of the indictment upon which he was tried with a violation of section 766 of the Penal Law, in that the defendant, with three others, intentionally made a false statement of the result of their canvass of the ballots cast at said primary election, and that by said statement the defendant and his fellow-inspectors of election certified that John Purroy Mitchel had received fifteen votes for the Bepublican nomination for mayor of the city of New York, and that William M. Bennett had received three votes for such nomination, and that there were no void or blank votes cast thereat, whereas, in fact, there were actually cast for said Mitchel at said primary election eight votes, for said Bennett five votes, and there were four void ballots and one blank ballot cast.
By the second count of the indictment the defendant is accused upon the same facts under section 751 of the Penal Law of the crime of willfully making a false statement of the canvass of the ballots cast at said primary election.
The charge under the first count was a felony, but defendant was not convicted thereon. Defendant was convicted under the second count of the crime of willfully making a false statement of the result of the canvass made by said board of election inspectors of the ballots cast at said primary election, which is by section 751 made a misdemeanor.
Section 751 of the Penal Law, under which defendant was convicted, so far as pertinent, provides (Subd. 12) that any person who “ being an * * * election inspector * * * wilfully * * * makes * * * at a * * * primary election ” a false statement of the result of the canvass of the ballots cast thereat “ is guilty of a misdemeanor.”
Defendant asks that the judgment of conviction be reversed upon several grounds. He first urges that the trial judge was disqualified from presiding upon the trial by reason of the fact that an action had been brought by defendant against the judge to recover damages for false imprisonment and abuse of legal process.
This point raised by the defendant does not appeal to me. Surely the defendant in a criminal prosecution should not be permitted to prevent his trial by merely accusing the judge designated to hold the term of prejudice or by bringing action against the judge for damages for some real or fancied wrong. If such an effort to disqualify a judge were to be successful, it would be a very convenient way by which a defendant might get rid of a judge before whom he did not wish to be tried, and avoid or, at least, delay his trial.
The defendant, with much ingenuity, attempts to seize upon certain occurrences during the progress of the trial, which he urges as showing prejudice against him on the part of the trial judge, and upon which he attempts to build up a case showing that he was unfairly treated and denied an impartial hearing. Counsel for the defendant has been most diligent in searching the record in an effort to build up a structure showing such prejudice on the part of the trial judge, which he asserts created a hostile atmosphere prejudicial to his rights. A careful examination of the record of the trial convinces me that there is no real merit in defendant’s complaint. Throughout the trial the conduct of defendant’s trial counsel was most annoying and at times unprofessional, and undoubtedly the patience of the trial judge was sorely tried.
The trial judge should not be criticised for holding counsel for the defendant to strict procedure upon the trial of a case
Many technical objections are urged by counsel for defendant concerning alleged irregularities in the drawing of the special panel of jurors for the term, and relative to the examination of such jurors as to their qualifications, and in the reception of evidence, but none of said criticisms seem to me to possess merit, or to direct our attention to anything prejudicial to the rights of the defendant. They are more numerous than meritorious, and no sufficient reason is presented for disturbing the verdict of the jury. Defendant, in his brief, as ground for reversal, urges that the extraordinary trial term at which he was tried was improperly appointed, and that his trial thereat was, therefore, improper. There is no merit in this position. It is not shown to possess any substance. It was not raised by defendant upon the trial, and it is not claimed that any harm or prejudice resulted to the defendant by reason of the claimed irregularity. His objections in this respect, as are many others which he urges as ground for reversal, are extremely technical, and will not be sustained for the purpose of reversing the judgment rendered. (People v. Duffy, 212 N. Y. 57.) Under the evidence the defendant could well have been convicted of a felony. The jury was extremely lenient toward the defendant in finding him guilty of the lesser offense charged in the indictment.
The judgment of conviction should be affirmed.
Dowling, Smith, Page and Shearn, JJ., concurred.
Judgment affirmed.