People v. Bromwich

• Citation: 200 N.Y. 385,93 N.E. 933
• Parties: PEOPLE v. BROMWICH.
• Decision Date: 10 January 1911
• Court: New York Court of Appeals Court of Appeals

200 N.Y. 385

93 N.E. 933

PEOPLE

v.BROMWICH.

Court of Appeals of New York.

Jan. 10, 1911.

Appeal from Supreme Court, Appellate Division, First Department.

Thomas E. Bromwich was convicted of false registration, and from an order of the Appellate Division (135 App. Div. 67,119 N. Y. Supp. 833), reversing the judgment of conviction, the People appeal. Affirmed.

Edward R. O'Malley, Atty. Gen. (Jacob Frank, of counsel), for the people.

William E. Morris, for respondent.

CULLEN, C. J.

The defendant was indicted for the crime of false registration in appearing before the inspectors of election for the Fifteenth election district of the Thirty-First assembly district in the county of New York as a voter in said district, he not being a qualified voter in such district, nor a citizen of the United States or of the state of New York, nor an inhabitant of said election district for the last 30 days preceding the date of the election. On this indictment he was tried, convicted, and sentenced. The Appellate Division reversed the judgment on questions of law only, having examined the facts and found no error therein, and ordered a new trial. 135 App. Div. 67,119 N. Y. Supp. 833. From that determination the people have appealed to this court.

The first error of which the defendant complains is that on the trial the prosecution was allowed, over his objection and exception, to amend the indictment by inserting the Thirty-Fifth assembly district in lieu of the Thirty-First assembly district wherever the words appeared therein. The learned judge who wrote for the majority of the Appellate Division was of opinion that the amendment was authorized under section 293 of the Code of Criminal Procedure, which provides: ‘Upon the trial of an indictment, when a variance between the allegation therein and the proof, in respect to time, or in the name or description of any place, person or thing, shall appear, the court may, in its judgment, if the defendant cannot be thereby prejudiced in his defense on the merits, direct the indictment to be amended, according to the proof, on such terms as to the postponement of the trial, to be had before the same or another jury, as the court may deem reasonable.’ We entertain a different view. While the indictment contains but a single count, the defendant is alleged to have violated the law and been guilty of a crime for two different reasons: (1) Because he was neither a citizen of the United States nor of the state of New York. (2) Because he was not an inhabitant of the election district thirty days previous to the date of election. Under the first allegation the defendant would be guilty of the crime, no matter in what election district he registered, and, had the indictment contained this single allegation, the amendment would have been justified clearly under the provisions of the Code quoted. The statement of the election district would not be any element of the crime, but a mere specification of the particular place in which the crime was committed. Not so, however, as to the second allegation of the indictment. There the crime charged is that the defendant registered at a particular election district where he was not entitled to vote because he was not an inhabitant of that district. The particular district in which the registry was obtained was an essential element of the crime. The grand jury have not found that the defendant was not an inhabitant of the Thirty-Fifth district, which was necessary to constitute a crime under the amendment of the indictment. In other words, the amendment is not merely in the description of the offense, but in the identity of the offense. An amendment of this character is not permissible. People v. Geyer, 196 N. Y. 364, 90 N. E. 48.

The majority of the court below placed their decision on the admission by the trial court of improper evidence to established that the defendant was not a citizen of the country, and hence not entitled to vote anywhere. There was first placed in evidence his affidavit before the inspectors that he was born in England, and that he was naturalized at Bridgeport, Conn., in 1887. Then over the objection and exception of the defendant there was admitted in evidence...