People v. McKane

• Decision Date: 27 November 1894
• Citation: 143 N.Y. 455,38 N.E. 950
• Parties: PEOPLE v. McKANE.
• Court: New York Court of Appeals Court of Appeals

143 N.Y. 455

38 N.E. 950

PEOPLE

v.McKANE.

Court of Appeals of New York.

Nov. 27, 1894.

Appeal from supreme court, general term, Second department.

John Y. McKane and three inspectors of election in the town of Gravesend were jointly indicted for violation of the provisions of the election law. Defendant McKane was convicted, and appealed. From a judgment at general term (30 N. Y. Supp. 95) affirming the judgment by which he was convicted, defendant appeals. Affirmed.

Matthew Hale, for appellant.

Edward M. Shepard, for respondent.

O'BRIEN, J.

The defendant and the three inspectors of election of the First election district of the town of Gravesend were indicted jointly for a violation of certain provisions of the law governing elections and the registry of voters preparatory for the general election of November, 1893 (Laws 1892 c. 680). Briefly stated, the charge was that the three inspectors, constituting the registry board, having met and organized, subsequently made and completed a list of voters, and certified the same, and feloniously neglected and refused to have three certified copies of the same at all reasonable hours accessible to the public for examination, and for making copies thereof, but, on the contrary, caused the same to be concealed from the public, and kept so that they were not accessible for examination or for making copies thereof. The charge against the defendant was that he willfully, maliciously, and feloniously procured the other defendants, members of the board of registry, to so conceal the and to neglect and refuse to cause the lists to be accessible to the public for examination and for making copies of the same, by his aid, counsel, command, and assistance. The defendant was tried separately, and convicted, and the judgment affirmed by the supreme court.

In view of the able and exhaustive examination that the case received in the court below upon appeal it is thought to be unnecessary to refer at much length to the vast mass of facts produced at the trial bearing more or less upon the issue, though relating to many subjects and events that appear in the enormous record that accompanies the appeal. These facts will doubtless be of interest to some future historian of the locality, or of the public events with which they are connected, as they illustrate a most singular condition of things in local government, and an extraordinary individual career; but it is believed that a very brief and general reference to a few of the leading ones is all that is essential to this disposition of the questions of law which (alone) we have the power to review. It is important, however, to get a clear view of the statute law that underlies the charge and the judgment. The thirty-first and thirty-second sections of the election law, which has been referred to, provide for the time and place of the meeting of the inspectors of election in each district in towns as a board for the registry of voters, and the manner of preparing the lists. The next section directs the inspectors, at the close of each meeting, as a board of registry, to append to their list a certificate to the effect that such list, as it then is, is a correct list of all persons qualified to vote in the district at the next election, whose names the board is required by law to place thereon The remainder of the section contains the provision which it is claimed was violated by the inspectors in this case, and reads as follows: ‘Each such list, so certified, shall remain in the custody of the chairman of inspectors, until the close of the polls on election day. At each meeting of the inspectors for registry, or during the next following secular day, the inspectors shall make three certified copies of such list and certificate, one of which shall forthwith be conspicuously posted in the place where such meeting shall have been held, and one shall be retained by each of the other two inspectors, until the close of the polls of such next election. Such list and registry of voters, and the certified copies thereof, shall at all reasonable hours be accessible to the public for examination or for making copies thereof.’ The penalty for neglecting or refusing to obey this statute on the part of the board of registry is thus defined by a provision of the Penal Code: ‘Sec. 41c. Any member or clerk of a registry board, who willfully violates any provision of the election law relative to registration of electors, or willfully neglects or refuses to perform any duty imposed on him by law, or is guilty of any fraud in the execution of the duties of his office, shall be punishable by imprisonment for not less than two and not more than ten years.’ Laws 1893, c. 692. These provisions, however, apply to the members and clerks of registry boards, and, as the defendant was neither, the charge could not be sustained without the aid of another provision of the same Code, which reads as follows: ‘Sec. 29. A person concerned in the commission of a crime, whether he directly commits the act constituting the offense, or aids or abets in its commission, and, whether present or absent, and a person who directly, or indirectly, counsels, commands, induces or procures another to commit a crime, is a principal.’

The learned counsel for the defendant contends that this section does not apply to the charge contained in the indictment, and was not intended to apply to it, since the defendant would be guilty of nothing higher than a misdemeanor in case he had actually violated other and apparently more important provisions of the law, or had actually destroyed the registry lists himself. It is quite true that the penalties prescribed by the statute for violation of the several duties and obligations imposed upon election officers and others have not been adjusted with a very nice regard to what would seem to be the relative importance of each offense. The counsel's argument might very properly have been addressed to the legislature while, engaged in framing the law, and, if it had, a special provision would doubtless have been inserted for the punishment of the special offense charged in the operation of the order to take it out of the operation of the general law. But the language of section 29 is so clear and comprehensive that any attempt now to take the offense of which the defendant was convicted out of it by judicial construction would be useless.

The contention is also made that it was legally impossible for the defendant to commit the offense charged, since he was not an inspector of election or other registry officer. He could not, of course, be guilty of those acts charged in the indictment against the inspectors, involving neglect of official duty and other misconduct of public officers, since he had no duty to perform with regard to the registry lists. But it was possible to induce and procure the inspectors to commit the offense charged against them by command, counsel, or advice, and that is the precise offense of which he was convicted. The argument for the defendant on this branch of the case goes to the full extent of asserting that no legal offense whatever was committed by the defendant, though all the allegations in the indictment be taken as true. He who by command, counsel, or assistance procures another to commit a crime is, in morals and in law, as culpable as the actual visible actor himself, for the reason that the criminal act, whatever it may be, is imputable to the person who conceived it, and set the forces in motion for its actual accomplishment. The fact that he may, for some reason, be incapable of committing the same offense himself, is not material so long as it can be traced to him as the moving cause by instigating others to do what he could not do himself. This was the rule of the common law, and it has been applied to offenses like this under special statutes. People v. Bliven, 112 N. Y. 79, 19 N. E. 638; State v. Sprague, 4 R. I. 257; State v. Jones, 83 N. C. 605;U. S. v. Snyder, 14 Fed. 554;U. S. v. Bayer, 4 Dill. 409, Fed. Cas. No. 14,547; 1 Hale, P. C. 629; 1 Hawk. P. C. c. 41, § 10; 1 Archb. Cr. Pr. (Pom. Ed.) 998; State v. Comstock, 46 Iowa, 265;People v. Chapman, 62 Mich. 280, 28 N. W. 896.

Numerous questions were raised, discussed, and decided at the trial in regard to the organization of the court, and the form and sufficiency of the indictment. There was a motion to quash, a demurrer, and a motion in arrest of judgment, and the decision in each case was in favor of the people. In so far as these various proceedings raised any question not already considered and not embraced in the exceptions which will be noticed hereafter, they do not require any special discussion. Nor is it important now to decide whether the decisions made in these motions and proceedings at the trial are all reviewable in this court or not, since, after a careful examination, we are satisfied that they do not present any substantial question, and the objections thus raised have been fully and quite satisfactorily answered in the opinions below.

The remaining questions arise upon exceptions taken in the course of the trial, and they grow out of the mode of proving the charge which was adopted by the prosecution. There was no direct evidence that the defendant counseled or advised the inspectors to conceal the lists or otherwise violate the law. What the prosecution attempted to show was a criminal conspiracy, or general scheme, in which many public officials were engaged, for the purpose of casting a large fraudulent vote at the election, and that the concealment of the registry lists from the public, prior to the election, was or became a necessary part of the scheme. No conspiracy was charged in the indictment, nor was it necessary, since the conspiracy, if shown, was evidence in support of the charge stated from which the jury might find the main fact in issue, namely, that the defendant did counsel, advise, and abet the...