United States v. Kantor

• Decision Date: 24 June 1935
• Docket Number: No. 406.,406.
• Citation: 78 F.2d 710
• Parties: UNITED STATES v. KANTOR et al.
• Court: U.S. Court of Appeals — Second Circuit

78 F.2d 710 (1935)

UNITED STATES v. KANTOR et al.

No. 406.

Circuit Court of Appeals, Second Circuit.

June 24, 1935.

Leo H. Klugherz, of New York City, for appellants.

J. Sidney Bernstein, of New York City, for appellant Samuel Kantor.

Joseph M. Klein, of New York City, for appellants Hendricks and Rushin.

Sidney Brooks Alexander, of New York City, for appellant Max Krasnof.

Martin Conboy, U. S. Atty., of New York City (Jacob Grumet and Francis H. Kinnicutt, Asst. U. S. Attys., both of New York City, of counsel), for the United States.

Before MANTON, SWAN, and CHASE, Circuit Judges.

MANTON, Circuit Judge.

Appellants were convicted for conspiracy to injure, oppress, threaten, and intimidate citizens in the exercise of their civil rights of voting. Cr. Code, § 19, section 51, title 18, U. S. Code (18 USCA § 51). The statute declares it a crime if two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same.

The charge of the indictment was predicated upon appellants' conduct at election districts when the election of November 8, 1932, took place. It is limited to occurrences in the Twentieth and Twenty-First Election Districts of the Seventeenth Assembly District in New York County and State. The indictment is of one count only, charging appellants with injuring, oppressing, threatening, and intimidating legally qualified voters in those election districts "in the free exercise and enjoyment of the rights and privileges secured to them * * *, to wit, to vote and to exercise the right of suffrage in the election of legally qualified persons for representative in Congress of and for the 19th Congressional District, representatives in Congress at large and United States Senator."

Appellant Kantor was the treasurer of a campaign committee with a duty to distribute money to the captains for the purpose of paying workers on election day. The government's case was predicated on the contention that the appellants interfered with voters at the machines, rang up votes on the machines, forged signatures of voters, and turned the voting machines in improper positions in the polling places.

There is no evidence that any qualified voter, who did not vote because of alleged interference, intended to vote for a candidate for federal office. The indictment alleges that on this day at the election districts, "said voters, as aforesaid, on voting machines duly designated and provided for such purpose in each of the aforementioned election districts, cast and registered and attempted to cast and register their votes for and in the election of representatives in Congress of and for the 19th Congressional District, representatives in Congress at large and United States Senator, as aforesaid."

It was a general election; state offices as well as federal offices were to be voted for. To establish the charge of the indictment showing injury or intimidation to voters, the government depended upon a stipulation wherein it was conceded that "at the election of 1932 there were candidates named for the office of representative in Congress of the 19th Congressional District, for the Congressional representatives at large and for the United States Senator." When this concession was made, the court said: "It is just a question that the qualified voter at that election had a right to vote as he saw fit." There was no concession that voters attempted to or did vote for federal offices as alleged in the indictment. The concession was merely that voters had the right to vote for federal offices, not that they attempted to or did vote for them. It was incumbent upon the government to prove every essential fact necessary to constitute the offense. Drossos v. United States, 2 F.(2d) 538, 539 (C. C. A. 8). In United States v. Seaman (C. C.) 23 F. 882, this court granted a new trial for failure to prove the element of intent to vote for a federal candidate, saying: "The indictment did not allege that the defendant attempted to vote for a representative in congress. Nor did the evidence upon the trial show such an attempt specifically. State and local officers were voted for at that election. * * * The question is * * * whether the indictment was sufficient, and whether there was error in the ruling at the trial." In passing upon instructions to the jury, it was said: "At the close of the evidence the counsel for the defendant asked for an instruction that the defendant be acquitted upon several grounds, and among them, because there was no proof that he had attempted to vote for a representative in congress." For this refusal the judgment was reversed. In Blitz v. United States, 153 U. S. 308, 14 S. Ct. 924, 926, 38 L. Ed. 725, where the accused was indicted under section 5511 of the Revised Statutes, the court reversed a conviction on the count charging voting in the name of another, for the failure to allege that the defendant had in fact voted for a representative in Congress: "He may have voted only for state officers, and yet it could be said, not unreasonably, that he voted at an election had and held for representative in congress, if, in voting for a state officer at such election, he knowingly personated and voted in the name of another, it was an offense against the state, punishable alone by the state, although the general election at which he voted was...