People v. Harrison

• Decision Date: 03 June 1924
• Citation: 238 N.Y. 348,144 N.E. 636
• Parties: PEOPLE v. HARRISON.
• Court: New York Court of Appeals Court of Appeals

238 N.Y. 348

144 N.E. 636

PEOPLE

v.HARRISON.

Court of Appeals of New York.

June 3, 1924.

Ben Harrison was convicted of making a false return of the result of a canvass at a primary election. From a judgment of the Appellate Division of the Supreme Court (190 App. Div. 902,179 N. Y. Supp. 941) affirming conviction, defendant appeals.

Reversed and new trial ordered.

See, also, 143 N. E. 761.

Appeal from Supreme Court, Appellate Division, First department.

Louis H. Solomon, of New York City, for appellant.

Joab H. Banton, Dist. Atty., of New York City (Felix C. Benvenga, of New York City, of counsel), for the People.

POUND, J.

The defendant, with three others, was charged in two separate counts of a joint indictment, under section 766 and under section 751, subd. 12, of the Penal Law (Consol. Laws, c. 40), with making a false statement of the results of the primary election held in the city and county of New York, on the 19th day of September, 1917, for the nomination of mayor of the city of New York, on the Republication ticket, while the said defendant was acting as an inspector of election.

Section 766 of the Penal Law at this time read as follows:

‘An inspector or [poll] clerk of an election or town meeting, who intentionally makes, or attempts to make, a false canvass of the ballots cast thereat, or any false statement of the result of a canvass, though not signed by a majority of the inspectors, or any person who induces or attempts to induce any such inspector or clerk so to do, is guilty of a felony.’

Section 751, subd. 12, of the Penal Law read as follows:

‘Any person who: * * *

‘12. Being an officer, teller, canvasser, election inspector, primary inspector, custodian of primary records, clerk or employee of or in the office of a custodian of primary records, or any officer of a political committee or a convention, willfully omits, refuses or neglects to do any act required by the election law or otherwise by law, or violates any of the provisions of the election law, or makes or attempts to make any false canvass of the ballots cast at a political caucus, primary election, or convention, or a false statement of the result of a canvass of the ballots cast thereat; * * *

‘Is guilty of a misdemeanor.’

The conviction was on the second count of the indictment, charging the act as a misdemeanor.

The candidates for the nomination for mayor of the city of New York on the Republican ticket, in the official primary election held on the 19th day of September, 1917, were the late John Purroy Mitchel and William M. Bennett. The indictment alleges that in the fifteenth election district of the sixteenth assembly district, where defendant was one of the inspectors of election, the actual votes cast were, 3 for the late John Purroy Mitchel, and 24 for William M. Bennett, while the inspectors of election of the said district, including the defendant, signed a statement of the result of the election, showing 13 votes for the late John Purroy Mitchel, and 13 votes for William M. Benett. The defendant offered evidence tending to show that he was designated by the chairman of the board to act as poll clerk during the balloting and sat at his poll book diagonally across the 12-foot polling table, more than 12 feet away from the chairman of the board, making his entries as each voter appeared, and answered the questions asked of him; that after the polls were closed and the canvass began, he was designated by the chairman of the board to act as tally clerk, and he sat in the same place, more than twelve feet away from the chairman of the board, tallying on his tally sheet each vote as it was called off by the chairman; that he could not see the contents of the ballots read off by the chairman and did not know the contents thereof; that he relied on the truth and accuracy of the chairman's count and tallied accordingly as the chairman announced the votes, believing the same to be true; that the result statement signed by him tallied with that of his cotally clerk; and that, if the result statement did not express the true result of the convass, defendant signed it under mistake of fact, induced by the error or fraud of the chairman of the board.

The district attorney contends that the statute declares the act of making a false statement of the result of the...