
    Supreme Court—Appellate Division, First Department.
    November, 1902.
    THE PEOPLE v. HOCHSTIM.
    (76 App. Div. 25.)
    1. Election—Assisting Registered Elector to Escape From Deputy Superintendent oe Election—Arrest Before Voting Unauthorized.
    In the absence of proof, to the effect that a person attempting to vote was guilty of the felony of false registration, or that he, at the time, had no right to vote, or had committed some crime against the elective franchise, no duty is imposed upon a deputy superintendent of elections, and he has no right to arrest him without a warrant, and in attempting to do so he is not acting in the line of his duty, and a conviction on an indictment for assisting in the escape of such registered elector from such officer will not be sustained.
    2. Same—Metropolitan Election District Act—Laws 1898, ch. 676.
    The Metropolitan Election District Act does not require or authorize a deputy superintendent of election to arrest without a warrant any person unless he, in the presence of such officer, violates or attempts to violate a provision of the Election Law or the Penal Code relating to crimes against the elective franchise.
    3. Same—Constitution of New York, Art. 2, Sec. 1.
    
      Semble (per Ingraham and Hatch, JJ.), that the Metropolitan Election District Law does not authorize the arrest of a registered elector while he is attempting to vote, upon a charge that he has illegally registered, and that if such law assumed to authorize an arrest under such circumstances it would violate the citizen’s eonstitional right to vote.
    Appeal by the defendant, Max Hoehstim, from a judgment of the Court of General Sessions of the Peace in and for the city and county of Hew York, entered on the 6th day of December, 1901, convicting the defendant of the crime of willfully and feloniously hindering a deputy superintendent of elections in the performance of his1 duty, and releasing and assisting in the escape of a prisoner from the custody of such officer.
    William D. Guthrie and Ira Leo Bamberger, for the appellant.
    Job E. Hedges, for the respondent.
   McLaughlin, J.:

This appeal is from a judgment convicting the defendant of a felony for which he was sentenced to be imprisoned for a term of not less than one, nor more than three years. (Laws of 1901, chap. 425, adding Penal Code sec. 687a.) The facts set forth in the indictment as constituting the crime were, in substance, that on the 7th day of November, 1899, one William M. Chapman, a deputy superintendent of elections in and for the metropolitan election district, lawfully had in his custody and under arrest one James Bassett, who was guilty of a felony, in that he had falsely registered as a qualified voter in a certain district of the city of New York, and that the defendant, having knowledge of such facts, hindered and delayed Chapman in the performance of his duties as such officer, in violation of the provisions of section 7 of chapter 676 of the Laws: of 1898, as amended by chapter 499 of the Laws of 1899, by acting with others in releasing Bassett and aiding him to escape.

At the trial it appeared, or evidence was adduced from which the jury might have found, that Chapman was a duly appointed deputy superintendent of elections and at the time stated in the indictment and for some time prior thereto had been acting as such; that on the 20th of October, 1899, Basset* claimed the right to register as an elector in a certain election district of the city of New York for the purpose of qualifying himself to vote in such district at the general election to be held on the 7th of November following; that his right to register was challenged by Chapman, but, notwithstanding that fact, he took the oath required by statute and was duly registered; that thereafter Chapman instituted an investigation for the purpose1 of ascertaining whether Bassett resided at the place given by him in his application for registration, and as a. part of such investigation took him to the office of the superintendent of elections for examination, but what there transpired does not appear in the record before us. It is, however, fairly to be inferred, inasmuch as no proceedings were taken to strike Bassett’s name from the roll of qualified voters prior to the election, that facts were not established which justified action being taken for that purpose. This inference must necessarily be drawn, in view of the fact that no evidence whatever was offered at the trial that Bassett did not have the legal right to register in the district in which he did, or to' vote therein at the general election held on November 7, 1899. On the day of election Bassett presented himself at the polling place ,in the district where he had registered, and as he approached the ballot clerk he gave his name and address and asked for ballots', whereupon Chapman, who had previously gone to the polling place, stepped forward, placed his hand upon Bassett’s shoulder, at the same time saying that he arrested him for illegal registration, and what followed such announcement is described by Chapman. He testified that: “A dispute immediately arose as to whether he should be arrested before he voted or after he voted. I said my orders were to place him under arrest before he voted. The crowd then, among whom was Hoehstim, said that he should vote first and then afterwards I could arrest him.” A disturbance immediately followed, in which several persons, including the defendant, took part, and the result of which was that Chapman was pushed into a comer of the room, and there kept until Bassett had voted and escaped from the room.

At the close of the People’s ease, and again at the close of the whole case, motions were made by the defendant’s counsel to direct the jury to acquit the defendant, upon the ground that the People had failed to establish facts sufficient to sustain the indictment, in that they had failed to prove that Bassett was guilty of the felony of false registration. Both motions were denied and an exception in each instance duly taken. These exceptions present one of the1 grounds upon which a reversal of the judgment of conviction is asked.

We are of the opinion that the exceptions- were well taken and that they necessitate a. reversal of the judgment. The crime, for the commission of which'the defendant was convicted, was that he, at the time stated in the indictment, hindered and delayed Chapman, a deputy superintendent of elections, in the performance' of his duty, in violation of section 7 of the statute of 1898, as amended, hereinbefore referred to1, which provides that any person who- shall willfully hinder or delay a deputy superintendent of elections in the performance of his duty shall be guilty of a felony. That the evidence1 justified the jury in finding that the defendant did, in fact, hinder and delay Chap- ■ man in attempting to arrest Bassett, cannot, we think, be seriously questioned. It is conceded that the arrest was attempted to be made without a warrant. The Metropolitan Election District Act imposes certain duties upon deputy superintendents of elections, and among others, to' arrest without a warrant any person who, in the presence of such officer, violates or attempts to violate any provision of the Election Law or the Penal Code relating to crimes against the elective franchise (Laws of 1898, chap. 676, sec. 6, s-ubd. 2). It does not require such officer to arrest without a warrant in any other case, nor has he any authority to do so- under the act. Here, absolutely no proof whatever was offered to' the effect that Bassett had violated or attempted to violate any provision of the Election Law or committed any crime. It is true that Chapman had previously challenged Bassett’s right to register, but the challenge was of no avail, inasmuch as evidence was furnished sufficient to- satisfy the officers having the registry in charge, nor did the People upon the trial, notwithstanding the fact was alleged in the indictment, attempt to- prove that Bassett did not, in fact-, have a legal right to register, or to- vote at the time the attempt was made to- arrest him. In the absence, therefore, of proof to- the effect that Bassett was guilty of the fe-lony of false registration, as alleged in the indictment, or that he, at the time, had no- right to- vote> or had committed some crime against the elective franchise, no duty was imposed on Chapman, and he had no right to arrest him, and in attempting to do- so he was-not acting in the line of his duty. Under the statute (sec. 3), Chapman was a peace officer, but this did not give him a right to arrest without a warrant, any more than did the act under which he was appointed. An arrest can be made under section 177 of the Code of Criminal Procedure, by a' peace officer, without a warrant, only when a crime has been committed, or attempted, in his presence, or where the person arrested has committed a felony, although not in his presence, or where a felony has, in fact, been committed and the officer making the arrest reasonably believes the person arrested to have committed it. (Craven v. Bloomingdale, 54 App. Div. 266.) Here, as already indicated, the People failed to establish any of the facts which justified Chapman, as a peace officer, in making an arrest without a warrant, and in attempting to do so he had no more authority than he did as deputy superintendent of elections. Under the facts established, Chapman’s act was unauthorized and an unjustifiable interference with an elector’s right to vote. There was, therefore, at the close of the People’s case, as well as at the close of the whole case, a failure to prove the fact alleged in the indictment which would have justified Chapman in arresting Bassett without a warrant, viz., that he was guilty of the felony of false registration,” and for this failure the jury should have been directed to acquit.

The judgment of conviction appealed from must be reversed and a new trial granted.

O’Brien and Ingraham, JJ., concurred; Laughlin, J., concurred in result.

Ingraham, J. (concurring) :

I concur in the reversal of this judgment, as I think that Chapman, the deputy superintendent of elections, in attempting to arrest Bassett as he was about to vote, not only was not engaged in performing a duty imposed upon him by law, but was acting in direct violation of the Constitution of this State. The Metropolitan Election District Act does not authorize, either directly or indirectly, an arrest so as to prevent a duly registered elector from casting his ballot. That Chapman had a right to arrest Bassett if he had reasonable ground for believing that Bassett was guilty of a felony in illegally registering, and if a felony of that character had been in fact committed, provided he did not exercise that right under such circumstances as would prevent Bassett from casting his vote, is conceded. Bassett’s right to vote, however, was secured to him by section 1 of article 2 of the Constitution, and neither the Legislature nor any officer acting, under legislative authority had the power to prevent him, when duly registered according to law, from casting his vote at the election. Bassett had presented himself for registration, his right to register had been challenged, and the question as to his right to vote had been passed upon by the inspectors of election, and he had been duly registered, whereby he became a qualified voter and entitled to cast his vote. When he demanded his right to vote his right could be challenged, but if he made the -necessary oath as to- his qualifications as- a voter the inspectors were- bound to accept his vote (People ex rel. Stapleton v. Bell, 119 N. Y. 175), and any one, whether a deputy superintendent of elections or one holding any other office, who deliberately and intentionally interfered to prevent the exercise- of that right violated section 41k of the-Penal 'Code. The right of a. citizen of this State to vote is protected by most careful provisions- of the Constitution and the statutes:. The Legislature has no power to enact a law by which a person thus qualified can be deprived of his vote-, and no person can lawfully exercise- power conferred upon him in such a way as to- prevent a duly registered citizen from exercising that right. The attempt of Chapman to arrest Bassett so as to- prevent him from voting, and his refusal to allow Bassett to vote when he demanded that he be allowed to exercise that right notwithstanding the arrest, was. a distinct violation of his (Chapman’s) duty to obey the Constitution and laws of this State; and assuming that there was evidence to-justify the jury in finding that this defendant took part in a proceeding which had for its- purpose the enforcement of the right by Bassett to cast his vote; he thereby violated no law of this State, and is not liable to be punished. I think that the act of Chapman was a direct, violation of law, and that the defendant’s, act in insisting that Bassett should be allowed to vote was not a violation of the provision of the statute- (Laws of 1898, chap. 676, sec. 7, as amd. by Laws of 1899, chap. 499) which makes: it a crime- for one who- shall willfully hinder or delay, or attempt to hinder or delay, such superintendent or deputy in the performance of his duty.

Hatch, J. (concurring) :

I am of the opinion that, under the Constitution of this State, the Legislature has- no power, by act or otherwise, to authorize the arrest of an elector for an offense committed against the Election Laws of the State, when such elector has prima facia complied with the laws which entitle him to vote, so as to prevent him from voting when he presents: himself for such purpose, or to otherwise authorize interference with the free, full and untrammeled exercise of such right. The right to vote is guaranteed to- the citizen by the Constitution of the State; this right is unqualified, when compliance is had with the law sufficient to- evidence the same, i. a., when he is properly registered as required by law. This being done-, there can be no lawful interference with the exercise of the right under any pretense- or by any authority whatever, except to- challenge the elector’s right to vote. If, when challenged, the elector takes the prescribed oath, he must then be permitted to- cast his vote without further interference by any person, officer or otherwise. It is evidently the scheme of the Constitution and the Election Laws, auxiliary thereto- to secure to- the citizen the absolute right to exercise the elective franchise. For the purpose of preventing frauds and crimes by individuals not authorized to exercise this right laws have been passed safeguarding the same, and penalties, have been provided for a violation of such laws-. Thereunder prosecutions may be had o-f the fraudulent voter in the inception of evidencing his right to vote and may follow the full consummation of his act after his ballot has been cast. When the voter has complied with the Election Laws so- far as to evidence his right to vote, then he must be permitted to cast the same, subject alone to the single right of challenge. The citizen who has registered, if charged with false registration, may be proceeded against before he presents himself to1 vote or after he has performed that act. The act of voting embraces not alone the citizen’s presence in the voting booth, but every step in the process of going to the election booth with intent to vote, until the final consummation of casting the ballot. ISTo interference with the citizen after he has registered, except to- challenge his right to vote, either by threats- of arrest or by any other form of intimidation, or by interference when exercising the right, is--permitted. Each and all such acts are unlawful no matter by whom perpetrated. °

If the statute in question in this action be construed as authorizing the arrest of an elector, duly registered, while in the act of proceeding to vote or voting, it invades the constitutional requirement and is; invalid. As I view the act, however, such is not its necessary construction. The authority to arrest is found in subdivision 2 of section 6 of the act (Laws of 1898, chap. 616). This provision authorizes all deputies to- “ arrest any person without warrant who in his presence violates or attempts to violate any of the provisions of the Election Law or the Penal Code relating to crimes against the elective franchise'.” There is nothing in the terms of this provision which authorizes an arrest when the voter is exempted therefrom by virtue of any provision of law, constitutional or otherwise. The statute does not pretend to authorize the deputy to make an arrest of the- person of the elector during the time when he- is in the act of voting. If it did, the authority would be invalid. It is clearly permissible-, therefore, to- construe this provision as authorizing an arrest without a warrant in the manner and form as prescribed by law and so bring it in harmony with the constitutional right of the voter by making it obedient and subordinate to such constitutional right. Such a construction is not only authorized, but is compelled in order that force and effect may be given to the constitutional requirement and at the same time preserve the legislative enactment. (People ex rel. Kingsley v. Pratt, 22 Hun, 300.) Such construction preserves and upholds the authority of the deputy to make an arrest for infringement of the Election Law, subject, however, to the right of the elector to cast his vote.

The defendant, by insisting that the elector should be permitted to vote before he could be placed under arrest and deprived of his right, was not guilty of any unlawful act, for the reason that no authority was conferred upon the officer to make the arrest and thereby deprive the elector of his right to vote. That act being unlawful, the defendant was justified in resisting it. The defendant was not justified, however, in interfering with the officer after the elector had cast his vote. He then became subject to arrest, and that without a warrant, if he had committed a felony, or if a felony had been committed and the officer had reasonable ground to believe him to be the person who committed it. Hnder such circumstances, the authority of the deputy was ample to make the arrest; and the defendant, if he in any wise interfered with or prevented the officer from performing his duty, became guilty of a felony, for which he could be properly tried, convicted and punished. There is some evidence in the present record which would authorize a jury tO' find that the defendant did interfere with the deputy after the elector had voted; and if it be made to- appear that he had committed a felony, then such interference by the defendant would constitute an offense for which] he could be properly indicted, tried and convicted. The difficulty, however, with the present situation is that no sufficient proof has been offered to show that Bassett committed any offense against the Election Laws; or otherwise; and such fact is required to be established by competent and sufficient proof before the defendant can be adjudged guilty of any offense1, for without such fact being established thei deputy had no1 authority whatever to. make the arrest at any time.

I concur with Hr. Justice HcLaughlin and with Hr. Justice Ingraham in their opinions. As no1 right of arrest,of Bassett by the deputy in the present case has been shown, the conviction cannot be upheld. It should, therefore, be reversed and' a new trial granted.

Laughlin, J. (concurring) :

It not having been shown that a felony was committed of which there was reasonable ground to believe the defendant guilty, there was no authority to make the arrest and an adjudication of the constitutionality of the law is not required on the appeal. It has, however, been urged that the Election Law referred to in the prevailing opinion -is unconstitutional, and it is deemed advisable that we should all give expression to our views on that subject.

Where a parson formally registered presents himself to the election board on election day while the polls are open for the purpose of voting, and is ready and willing if challenged to take the constitutional oath as to his qualifications and right to vote, I think he may not then be arrested either for illegal registration or for an attempt to- vote illegally and removed from the booth before being afforded an opportunity to oast his ballot. If the Legislature provided otherwise I think the law would be unconstitutional. I am prepared to go to that extent at the present time, but no further, until it becomes essential to the determination of some question presented.

It is manifest that this immunity to electors, which the Constitution was designed to guarantee, may be forfeited. Their persons are not sacred during the process of voting, and if while voting they commit felonies o-r other crimes they may thereby deprive themselves1 of the right of franchise and subject themselves to immediate arrest and removal. It is inadvisable for the court to attempt to. determine in advance precisely what misconduct committed by an ©lector while in the act of voting will justify his arrest and removal before being permitted to cast his ballot. The law under consideration does not authorize or require the arrest of a person while in the act of voting as hereinbefore defined, for illegal registration or voting, and, therefore, I have no doubt that it is valid.

McLaughlin, J., concurred.

Judgment reversed and new trial granted.  