People v. Boas , 36 N.Y. Sup. Ct. 377 ( 1883 )

Brady, J.

[After stating the facts as above.]—There is no doubt that the defendant, as one of the inspectors, committed a grave error in refusing to accept the vote of G-erdes, and that it resulted in depriving the voter of the highest privilege he can exercise under our form of government. But the statute requires that the exclusion shall be willful, and to be willful there must exist, if not malice, a decided intention designedly and purposely to exclude the vote. To do an act willfully is to do it willingly by design—“ on purpose.” Worcester’s Dictionary. Such was not this case. The inspectors assigned the reason. It was not sufficient in law, it is true, but they were evidently impressed and sought advice from the chief of the bureau of elections, who suggested what he considered to be the proper mode of disposing of the controversy. He was in error, it is true, but being persons uneducated in law and perhaps not sufficiently advised of their duties as to understand them perfectly, they placed reliance upon the advice thus given, and by a person connected with the bureau of elections. This deprives the case of the essential element under the statute, of malice or deliberate design and intent, and renders it necessary to reverse the judgment pronounced against the appellant.

The learned recorder charged the jury that if they came to the conclusion that Mr. Gerdes was a legal voter, and had the legal right to vote, and that the defendant willfully excluded his vote, knowing at the time that he was duly and legally authorized to vote at that election, it was a felonious act on his part and within the meaning of that term, and that lie would be guilty of the offense charged in the indictment. This was excepted to, and the exception seems to have been well taken, because the proposition declared is that if the defendant knew that the voter was legally authorized to vote and his vote was excluded, it was willfully done. This is not justified by the evidence in the case.

The learned Recorder also charged the jury that if a majority of the board, acting as a board, the defendant being one of the majority, willfully and knowingly, all being actuated with the same common intent and motive, feloniously did exclude the vote of Gerdes, the act of one would be the act of all, or the act of the majority who concurred in excluding the vote, and that they, that is, the persons composing the majority of the board, would be jointly and severally liable, and should be convicted. This was stating the law of the case accurately, because it presented the necessary elements to justify a conviction, namely, that the defendant should be actuated by a common intent and motive feloniously to exclude the vote of Gerdes. If the intention feloniously existed, then the vote would be willfully excluded, and the appellant would be within the provisions of the statutes and liable to conviction and punishment.

The proposition which runs through the charge seems to be that if the vote was excluded, the defendant knowing that Gerdes was entitled to vote, he having the necessary qualifications and the right to do so, it was a willful act to exclude the vote, and one, therefore, which came within the provisions of the statute. This is not the law of this case, although the general proposition is correct, because it is evident that the exclusion of the vote by the appellant rested upon the proposition that some person had voted in his name, and that the inspectors thought they had no power to receive another vote, such vote having been received, although erroneously. The suggestion emanating from the inspectors to Mr. Gerdes that he should procure a mandamus seems to rest upon no other proposition than that they should be thus protected in doing what they considered would be an erroneous exercise of their duty, viz.: the receipt of the vote when one had already been given in the name of the voter presenting his ballot.

If the construction of the statute be that the mere presentation of a vote, by a person who is known to be qualified as a voter, is sufficient, under circumstances such as presented themselves in this case, to justify the conviction as an act willfully done, then there must be a departure from rules which govern cases of a kindred character and which seem to have been well settled by the adjudged cases. For example, in the case of Jenkins v. Waldron, 11 Johns. 114, it was held that an action on the case would not lie against inspectors of an election for refusing to receive the vote of a person legally qualified, without proving malice express or implied. The court said in that case: “ It is not alleged or proved that the inspectors fraudulently or maliciously refused to receive the vote. This we consider absolutely necessary to the maintenance of an action against the inspectors of an election.” And in Bishop on Statutory Crimes, § 806, it is stated-as a proposition in reference to the persons intrusted by law to pass upon the qualification of voters, that they are not answerable to an indictment when what they do, is done through mistake either of law or fact, being honestly done.

It must be further said that the section “under which the defendant was indicted makes the exclusion of the vote a felony, and the general rule of law in regard to a felony is that there must be an intent to do wrong, and the intent must be proved beyond reasonable doubt. It is true that the inspectors are not invested with any discretion as to the rejection or acceptance of a vote, when the person offering it has the necessary qualifications authorizing him to express it; but the language of the statute is “ willful.” It is not that if they reject the vote of a person duly qualified they may be convicted, but they must do it willfully, and that means with knowledge aforethought and with a wicked design. If this be not so, then the word willful has no force in the statute and might just as well be expunged.

For these reasons it is thought, as already suggested, that the judgment must be reversed and a new trial ordered, upon which the people may be able to show from facts and circumstances, the existence of a deliberate intent or design to do wrong.

It is the determination of this court, and must be of every tribunal in the state, to preserve unconditionally and absolutely the right of a qualified voter to exercise his franchise, and to punish, whenever the facts justify it within the provisions of the statute, any departure from the strict duty of the inspectors, who in reference to the vote are the depositaries of a great public trust; and this suggests what has frequently been stated both in and out of the courts of justice, that inspectors of election should be educated and intelligent men, thoroughly instructed in the duties that they are to perform, so that when the voter presents himself they shall understand precisely the duties incumbent upon them, and thus preserve the absolute right of the voter, without interference and without impediment to express his vote, if he possesses the qualifications of the statute and is willing to take the oath required by law. It may be troublesome to make selections of such persons, but the importance of doing it results from the character of the duties to be performed as illustrated by this case, in which it is quite clear that if the inspectors had thoroughly understood their duties the vote of Gerdes would not have been excluded.

Judgment reversed and new trial ordered.

• Davis, P, J., and Daniels, J., concur.