
    SUPREME COURT-APP.DIVISION-FIRST DEPARTMENT
    
    June 20, 1906.
    THE PEOPLE v. SAMUEL K. ELLENBOGEN.
    (114 App. Div. 182.)
    (1) . Election Law—Perjury in Taking False Oath Before Deputy Supt. of Elections—Constitutional Law.
    The statute creating the office of State Superintendent of elections for the Metropolitan district, and authorizing him and his deputies to administer oaths, is constitutional—and a conviction for malting a false oath before such deputy will not be reversed on the ground that he had no authority to administer it.
    (2) . Same—Trial—Proof of Lost Designation of Deputy.
    A letter-press of the original designation of a deputy of the Supt. of Elections as authorized to administer oaths may be introduced by the people in a prosecution for perjury, where the original has been shown to be lost.
    (3) . Same.
    It is not incumbent upon the people to show that the State Supt. and the deputy who administered the oath had taken their respective oaths of office, but when they are shown to have been officers de facto the burden is on the defendant to show that they had not qualified.
    (4) . Trial—Charge as to Effect of Good Character.
    When defendant has proved his previous good character, and the court has charged that good character may create a doubt as to the defendant’s guilt, it is not error to charge further that the jury may take the defendant’s testimony in his own behalf into account in determinating how good his character was.
    (5) . Election Law—Perjury—Elector’s Residence.
    In a prosecution for perjury in taking a false oath that an elector resided at the place from which he registered, it is not error to refuse to charge that the elector’s residence for the purpose of registry was one of choice—a right to register depends upon an actual and not an imaginary residence.
    (6). Same.
    It was proper to charge that the actual residence of the elector was immaterial, if the defendant in fact believed that the elector resided at the place the defendant swore he did.
    Appeal by the defendant, Samuel K. Ellenbogen, from a judgment of the Supreme Court, rendered on the 29th day of November, 1905, upon the verdict of a jury convicting the defendant of the crime of perjury, and also from an order made at the close of the trial, denying the defendant’s motion for a new trial made upon the minutes.
    
      George M. Curtis, for the appellant.
    
      Julius M. Mayer, Attorney-General, for the respondent.
    
      
       Affirmed by 186 N. Y. 603—no opinion.
    
   McLaughlin, J. :

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 summoned to the office of the Superintendent or his deputy and they arrived shortly before eight o’clock of the evening of that day and there remained until half-past ten. Block had also been summoned and shortly thereafter his wife was subpoenaed and she arrived at the office either with the defendant or a little while before he did. Mrs. Block was asked certain questions touching the residence of the Mendelsohns and was about to be further interrogated on that subject when the defendant interposed in her behalf and suggested that she be permitted to go home to her children because he knew all about the Mendelsohns and was willing to make a statement under oath that they lived at Mo. 55 Mott street. One Emil Fuchs, a deputy superintendent of elections, had the investigation in charge and he thereupon permitted Mrs. Block to go and placed the defendant under oath and questioned him with regard to the residence and qualifications of the two Mendelsohns to vote. The defendant’s statements were reduced to writing and thereafter subscribed and sworn to by him before Fuchs as such deputy. In this statement he stated that he knew both the Mendelsohns; that they resided at Mo. 55 Mott street and had so resided for more than three months immediately prior thereto; that he knew they were at that time at that place because he had left them there about thirty minutes previous, the elder Mendelsohn being asleep. It was about ten-thirty r. m. when this statement was signed and sworn to and the two Mendelsohns were then, and for more than two and a half hours immediately prior thereto had been, confined in the office of the Superintendent—a room adjoining that in which the statement was made. The defendant was immediately placed under arrest and subsequently indicted. The indictment contained two counts—the first charging .him with the crime of feloniously making a false statement under oath before a Deputy State Superintendent of Elections for the metropolitan elections district (Laws of 1898, chap. 676, § 7, as amd. by Laws of 1905, chap. 689) and the second for the crime of perjury (Penal Code, § 96).

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.

He urges, among other grounds why the conviction and order should be reversed, (1) the unconstitutionality of the law creating the office of State Superintendent of Elections for the metropolitan elections district (Laws of 1898, chap. 676, as amd. by Laws of 1905, chap. 689) especially with respect to the power of the Superintendent or his deputies to administer oaths; (2) that no proof was offered at the trial that Fuchs was ever appointed a Deputy State Superintendent of Elections with power to administer oaths; and (3) that no proof was offered that Fuchs or the Superintendent himself ever qualified by talcing their respective oaths of office.

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 further 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 sufficiently proved to entitle the copy to be read in evidence, and no error was committed by the court in so holding.

For 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 de facto.

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 administered 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 was 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 Superintendent had no power to appoint Fuchs. Fuchs was engaged in determining whether or not the Mendelsohns were entitled to vote from the place and in the district in which they had registered. That was a pertinent inquiry and one which he was authorized to make under the provisions of the Metropolitan Elections District Law. The statements made by the defendant in his affidavit were material because they related positively to a fact concerning which the inquiry was made. Section 7 of said statute (as amd. supra) provides: Any person who shall make any false statement under oath before the State Superintendent, his deputy or other deputy authorized to take oaths as herein provided, is guilty of a felony.” There was ample evidence to justify the conclusion of the jury that the Mendelsohns did not live at 55 Mott street and that the defendant knew they did not and willfully made a false affidavit in that respect. The two Mendelsohns and a daughter of the family swore they had lived at another place and in another election district for more than two years past.

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 sense, that good character is an issue in a criminal trial, but it is equally true that it is for the jury to say what effect shall be given to such character in determining the guilt or innocence of the accused.

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 theMendelsohns 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’Brien, P. J., Patterson, Laughlin and Clarke, JJ.,. concurred.

Judgment and order affirmed. Order filed.  