People v. Fabian

• Decision Date: 29 September 1908
• Parties: PEOPLE v. FABIAN.
• Court: New York Court of Appeals Court of Appeals

192 N.Y. 443

85 N.E. 672

PEOPLE

v.FABIAN.

Court of Appeals of New York.

Sept. 29, 1908.

Appeal from Supreme Court, Appellate Division, First Department.

George Fabian was indicted for voting at an election in violation of the election law (Laws 1901, p. 1023, c. 371), amending Pen. Code, tit. 5, defining and punishing crimes against the elective franchise. From a judgment of the Appellate Division (111 N. Y. Supp. 140), reversing an order of the Court of General Sessions sustaining a demurrer to the indictment, defendant appeals. Judgment of Appellate Division reversed, and judgment of General Sessions affirmed.Daniel F. Cohalan, for appellant.

Wm. Schuyler Jackson, Atty. Gen. (John Palmieri, of counsel), for the People.

WILLARD BARTLETT, J.

The indictment charged the defendant with the crime of knowingly voting at an election, ‘not being qualified therefor.’ The alleged disqualification was based on the fact that the voter had previously been indicted for burglary in the first degree, and upon his trial therefor a verdict of guilty had been rendered against him, although no judgment was ever entered upon the verdict; sentence having been suspended. The defendant demurred to the indictment upon the ground that the facts stated therein did not constitute a crime; the specific basis of his objection being that a voter has not been ‘convicted,’ within the meaning of the Constitution and the disqualifying statutes, unless the verdict against him has been followed by a judgment. In other words, the contention in behalf of the defendant is that the conviction necessary to work a disqualification is not merely a verdict of conviction, but that it must be a judgment of conviction. The Court of General Sessions agreed with him in this respect and allowed the demurrer; but the learned Appellate Division held that a verdict of guilty, alone and of itself, is sufficient to disqualify, although no judgment is ever pronounced thereon, and (by a vote of three to two) it has reversed the order allowing the demurrer, and remitted the case to the trial court, there to be proceeded with as required by the law. The defendant now comes here.

Section 1 of article 2 of the present Constitution of this state, adopted in 1894, relates, as its subtitle indicates, to the qualification of voters; and section 2 of the same article relates to persons excluded from the right of suffrage. Two classes of persons are expressly the very terms of the section itself: (1) the very terms of the section itself: (1) Those who pay or receive, or offer to pay or receive, anything as a consideration for giving or withholding their votes; and (2) those who make or become interested in election bets or wagers. There is a third class who are to be disfranchised by means of legislative enactments; the mandate to that effect being contained in these words: ‘The Legislature shall enact laws excluding from the right of suffrage all persons convicted of bribery or of any infamous crime.’ The election law accordingly provides that ‘no person who has been convicted of a felony shall have the right to register for or vote at any election unless he shall have been pardoned and restored to the rights of citizenship.’ Laws 1901, p. 1669, c. 654, § 2, subd. 10. This enactment follows the command imposed upon the Legislature by the mandatory provision which I have quoted from section 2 of article 2 of the state Constitution. The statute under which the defendant was indicted is section 41l of the Penal Code (as amended by chapter 371, p. 1023, of the Laws of 1901). The only portion thereof necessary to be considered here reads as follows: ‘Any person who: (1) Knowingly votes or offers or attempts to vote at any election or town meeting, when not qualified, * * * is guilty of felony, punishable by imprisonment in a state prison not less than one nor more than five years.’ The indictment is clearly good if the defendant is to be deemed to have been convicted of the crime of burglary by reason of the rendition of a verdict of guilty against him, upon which verdict sentence was suspended and no judgment has ever been pronounced. It is clearly bad if he cannot be deemed convicted within the meaning of the Constitution, in the absence of a judgment upon that verdict. This brings us to the question upon which the determination of the appeal depends: What is the signification of the word ‘convicted’ in section 2 of article 2 of the Constitution of the state of New York which provides: ‘The Legislature shall enact laws excluding from the right of suffrage all persons convicted of bribery or of any infamous crime?’

When the existing Constitution was adopted in 1894, a provision contemplating the disfranchisement of convicts was not new to the fundamental law. There was such a provision in the Constitution of 1822, and also in the Constitution of 1846, only it was permissive in form, instead of being mandatory upon the Legislature. The Constitution of 1822 (article 2, § 2) provided that ‘laws may be passed excluding from the right of suffrage persons who have been, or may be, convicted of infamous crimes.’ There was a slight change of phraseology in the Constitution of 1846 (article 2, § 2), where the provision read: ‘Laws may be passed excluding from the right of suffrage all persons who have been or may be convicted of bribery, larceny, or of any infamous crime.’ In one respect, however, all three Constitutions have been alike. By every one the Legislature has been authorized to disfranchise any person convicted of infamous crime. The meaning of the word ‘convicted,’ therefore, at the time when it was introduced into this provision of the organic law in 1822, ought to guide us to the true purport of the term as used to-day in the Constitution of 1894. Bearing in mind the character of the legislation which the constitutional provision was designed to authorize, I think the prevailing rule of the common law as to what sort of a conviction served to disqualify a witness indicates what sort of a conviction the framers of the Constitution contemplated as such as should cause a citizen to be excluded from the right of suffrage. They were dealing with the question of the disqualification of voters They proposed to let the Legislature disqualify voters who had been or should be convicted of any infamous crime. Under the common law, witnesses who had been convicted of infamous crimes were disqualified from testifying, but were not deemed to have been thus convictedunless the record established the rendition of a judgment upon the verdict. People v. Herrick, 13 Johns. 82, 7 Am. Dec. 364;People v. Whipple, 9 Cow. 707. It was the judgment, and that only, which was received as the legal and conclusive evidence of the party's guilt for the purpose of rendering him incompetent to testify. Greenleaf on Evidence, § 375. This disqualification of witnesses as a consequence of crime was one with which the courts at that day, and consequently the public, must have been most familiar, and it seems to me quite natural that the members of the constitutional convention should have had it in mind, and that when they spoke of ‘persons convicted’ they meant persons against whom a judgment of conviction had been rendered. It would hardly be reasonable to authorize the disfranchisement of a voter simply because a verdict had been found against him (upon which judgment might have been or might yet be arrested), and yet require proof that the verdict had been followed by a judgment in order to effect the disqualification of a witness.

Upon reason, apart from authority, it will hardly be contended that a man should be deprived of the right of suffrage by a less conclusive judicial pronouncement against him than is required to disqualify him or affect his credibility as a witness. The disqualification of a witness on the ground that he has been convicted of crime is clearly analogous to the disfranchisement of a voter on the same ground. In discussing the rule which thus renders a witness incompetent, in the case of Faunce v. People, 51 Ill. 311, the Supreme Court of Illinois has said: ‘An examination of the adjudged cases in the various states of the Union, where substantially the same laws are in force, will show that it is not the commission of the crime, nor the verdict of guilty, not the punishment, nor the infamous nature of the punishment, but the final judgment of the court, that renders the culprit incompetent. It is true that writers and judges have loosely said that a party is convicted on the finding of a verdict against him. It is true in a sense that he has been convicted by the jury, but not until the judgment is rendered is he convicted by the law; and the statute only, like the common law, refers to the conviction imposed by the law.’ It may readily be conceded that the words ‘convicted’ and ‘conviction’ are often employed with reference to the verdict in a criminal case, as distinguished from the judgment, without affecting the...