
    The People of the State of New York, Respondent, v. Michael Cady, Appellant.
    One committed to prison does not cease to be a' prisoner because of the fact that he is not strictly confined, and is permitted by the officials in charge to go in and out of the prison. Nor is his position as prisoner ' affected by the fact that his commitment was illegal
    The domicile or home requisite as a qualification for voting means a residence which the voter voluntarily chooses and has a right to take as. such, and which he is at liberty to leave.
    The New York city prison, “The Tombs,” is not a place of residence save-for the keeper and his family, and a person cannot, under the guise of a commitment, or even without any commitment, go there as a prisoner and gain a residence.
    
      On the trial of an indictment for illegal registration these facts appeared: The defendant, at the time of his registration, was confined in the Tombs as a vagrant under a commitment for six months issued by one of the commissioners of charities and oorrection; he had been in that prison most of the time for about seven years under similar commitments. All of these commitments were issued upon his own application. When one commitment ran out he would immediately or soon after make application for another. He was employed in doing light work and errands, and while thus employed was permitted to go in and out of the prison. Defendant testified that he lived in the Tombs, and had for seven years; that he had no other home, and intended to make the prison his home as long as he could not get any other home. He registered in the election district which included the said prison. Held, that the defendant was at all times when at the Tombs a prisoner, and so he was not a resident in the district, and was properly found guilty of the offense charged.
    (Argued June 20, 1894;
    decided June 22, 1894.)
    Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made May 21, 1894, which affirmed a judgment of the Court of Oyer and Terminer of the city and county of New York, entered upon a verdict convicting the defendant of the crime of illegal registration.
    The facts, so far as material, are stated in the opinion.
    
      James J. Walsh for appellant.
    The uncontradicted testimony shows that the appellant acquired a residence at the city prison in the election district in which he registered. (2 Kent’s Comm. [2d ed.] 431; Crawford v. Wilson, 4 Barb. 504, 520; People v. Platt, 117 N. Y. 159.) The right of suffrage is a sacred right, and it was plainly the intention of the framers of the Constitution to extend that right to all persons except those excluded therefrom by its strict terms. It was not intended to exclude the poor or unfortunate. (Const. N. Y. art. 2, §§ 1, 2, 3.) In any event, whether or not the appellant herein acquired a residence at the city prison under all the facts, was a question for the jury to decide, and the learned court below erred in refusing to submit the evidence to the jury for them to determine whether the appellant acquired a residence under all the facts, and erred in instructing the jury that “there was no issue. He could not make it his home, whether he intended to or not.” (Const. N. Y. art. 2, § 3.) The commitment was void and a nullity, and though it did operate to confine the appellant physically, it did not operate to confine him to a prison within the meaning of the Constitution. (Laws of 1882, chap. 410, § 1464.) There was legal evidence to show that the appellant was at the Tombs prison without commitment for about two years. And the learned court erred in refusing to charge the jury that the defendant could acquire by intention and location a residence at the Tombs provided he was not committed. And the learned court also erred in refusing to charge the jury that if he acquired a legal residence at the city prison, the fact of his commitment after acquiring such residence would not lose him that residence. (People v. Foster, 50 N. Y. 598; In re Ward, 20 Abb. [N C.] 187.)
    
      John D. Lindsay for respondent.
    The defendant was confined in a public prison, within the meaning of the Constitution, from the time of his original commitment thereto till the day of the alleged, crime, and was incapable of gaining a residence there for the purpose of voting. (Laws of 1882, chap. 410, §§ 1493, 1495, 1499; Penal Code, § 92; Code Crim. Pro. §§ 193, 209, 212, 214, 301, 477, 852, 858; Wheeler v. State, 39 Kan. 163.) The appellant’s own testimony shows that he never acquired, and coirld not under the law, acquire, a residence in the election district in which the city prison is situated under the condition attending his admission there. (Silvey v. Lindsay, 107 N. Y. 55; 13 N. E. Rep. 441; Allentown Election, Brightley’s Election Cases, 468; Cadwallader v. Howell, 18 N. J. L. 138; Cooper v. Galbraith, 3 Wash. C. C. 546; U S. v. The Penelope, 2 Pet. Ad. 450; White v. Brown, 1 Wall., Jr., 217; State v. Daniels, 44 N. H. 383 ; Risewick v. Davis, 10 Md. 82; Granby v. Amherst, 7 Mass. 1; Jennison v. Hapgood, 10 Pick. 77; Chase v. 
      Miller, 41 Penn. St. 420; 5 Wright, 403; Guier v. O'Daniel, 1 Binn. 352, note; Moore v. Darrall, 4 Hagg. Eccl. 346; Tanner v. King, 11 La. 175; 5 Metc. 587; Somerville v. Somerville, 5 Vesey, Jr., 750; Casey's Case, 1 Aslr. 126; In re Ward, 29 Abb. [N. C.] 187; Dale v. Irwin, 78 Ill. 170,182; Granby v. Amherst, 7 Mass. 1; Opinion of Judges, etc., 5 Metc. 587; Vanderpoel v. O'Hanlon, 53 Iowa, 246 ; Fry's Election Case, 71 Penn. St. 302; Lower Oxford Contested Election, 11 Phil. 641; Putnam v. Johnson, 10 Mass. 488.) The appellant’s abode in the city prison lacked the elements of choice and volition, without which he could not in law claim it as his residence. (Town of Freeport v. Bd. Suprs., 41 Ill. 495, 500, 501; Payne v. Town of Dunham, 29 Ill. 125; Uptown v. North-bridge, 15 Mass. 547; Reading v. Westport, 19 Conn. 561; Amherst v. Hollis, 9 N. H. 107; Winchenden v. Hatfield, 4 Mass. 123; Andover v. Canton, 13 id. 547.) The constitutional provision under consideration was intended to prevent the allowance of any claim or right to vote in an election district resulting from a change of abode such as existed in the present case. (Silvey v. Lindsay, 107 N. Y. 55 ; Matter of Ward, 29 Abb. [N. C.] 187.) The same rules of law, and the same grounds of public policy, require the application of these principles to persons confined in public prisons. (Silvey v. Lindsay, 107 N. Y. 55.) The technical legality of the act of commitment or of the manner of commitment itself is wholly immaterial. (People v. Washburn, 10 Johns. 160; People v. Cook, 8 N. Y. 67, 89, 90 ; Laws of 1842, 134, § 1; 2 R. S. 681, § 1; State v. Hascall, 6 N. H. 352 ; 2 C. & H. 1101; Van Steenbergh v. Kortz, 10 Johns. 167.) There is no. evidence upon which the contention can. be made that the appellant was ever a voluntary resident of the city prison, and was, therefore, able to adopt it as his home. (In re Registry lists, 10 Phil. 213.) The record discloses no proper ground upon which the appellant can justly ask this court to interfere with the conviction. (Code Crim. Pro. §§ 542, 684.)
   Earl, J.

The defendant was convicted for illegal registration in the fall of 1893, in an election district in the city of Hew York of which he was not at the time a resident. He claims he was a resident of the election district, and whether he was or not is the question to be determined upon the present appeal. At and before the time of his registration he was in the Tombs city prison under a commitment by a magistrate, of which the following is a copy :

“ The Warden and Keeper of the City Prison of the City of New York will receive and safely keep in his custody, for examination by the Commissioners of Public Charities and Correction, the body of Michael Cady, Charged with Destitution on Confession.

“1 District Police Court, New York, Aug. 14, 1893.

"C. W. MEADE,

“Police Justice.

Committed to W. H. Six Months. Edward C. Sheehy.”

Sheehy was one of the commissioners of charities, and this commitment is supposed to have been made under section 412 of the New York Consolidation Act of 1882, which reads as follows:

“ It shall be lawful for the Board of Charities and Correction to commit to any of the institutions under their charge other than penal for a period not exceeding six months, any person or persons committed to their charge by any police magistrate of the City of Hew York, and such vagrants as ask for commitment.”

He had been in the Tombs prison for about seven years, most of the time under similar commitments. He was always committed upon his own application, and when a commitment ran out he would immediately or after the lapse of some time make application for another, and thus there might be an interval of time, probably overlooked, between two successive commitments. He was during all the time supported at the public expense in the prison, and was there frequently employed to carry messages and do some slight work for the warden of the prison, and while thus employed was permitted to go in and out of the prison. He was received into the prison and detained there solely by virtue of the commitments and could be formally discharged from the prison, according to the practice in vogue there, only by the authority of one of the commissioners of charities. As a witness in his own behalf he testified that he lived in the Tombs prison in the election district where he registered; that he had lived there nearly seven years; that he had no other home and never had had any other home since he went to the prison; that during that time he did not intend to have any other home; that he did intend to make the prison his home “ as long as he could not do any better — could not get any other home,” and that he had such intention during the whole time; that he was committed upon his own application; that he had no home, no work and made application to be committed to get a home and work.

How, under these circumstances did he gain a residence in the Tombs ? The Constitution provides in article 2, section 3, that “ no person shall be deemed to have gaiped or lost a residence by reason of his presence or absence while kept at any almshouse or other asylum at public expense, nor while confined in any public prison.”

It does not appear where his residence was before his commitment to the prison. He was at all times in a real sense a prisoner at the Tombs. He was not there as a laborer working for wages or even working for his own support, or as a member of the warden’s family. He was maintained at the public expense and was confined like others of his class. One committed to prison does not cease to be a prisoner because he is not strictly confined and is permitted by the prison officials to go in and out of the prison upon errands. Hor does it matter for the purpose now in hand that the commitment was irregular or even illegal. One may even be taken by violence and thrust into prison and confined there, or he may be detained there by his consent without any commitment, and yet he could not by such detention in prison gain a residence there for the purpose of voting. Before going to the prison, the defendant had a residence somewhere, and before he could change that it' was requisite that he should go to the Tombs intending to make that his home and domicile, either permanently or for some unlimited time without any intention of returning or reverting to his former residence, and in fact intending thereby to change his former residence to the Tombs. The domicile or home requisite as a qualification for voting purposes means, a residence which the voter voluntarily chooses and has a right to take as such, and which he is at liberty to leave, as interest or caprice may dictate, but without any present intention' to change it. It is preposterous to' suppose that the defendant had within these rules and the law laid down in Silvey v. Lindsay (107 N. Y. 55) and many other cases found in the learned brief submitted in behalf of the People, made the Tombs his residence. He was a single man. The Tombs is not a place of residence. It is not constructed or maintained for that purpose. It is a place of confinement for all except the keeper and his family, and a person cannot under the guise of a commitment, or even without any commitment, go there as a prisoner, having a right to be there only as a prisoner, and gain a residence there.

We think upon all the evidence it is clear and without reasonable dispute that the defendant was not a resident in the district in' which he registered; and are of opinion that no. error was committed upon the trial to his prejudice.

The conviction should be affirmed.

All concur.

Judgment affirmed.  