People v. Fabian

126 A.D. 89, 22 N.Y. Crim. 460, 111 N.Y.S. 140, 1908 N.Y. App. Div. LEXIS 3298

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1908
• Status: Published

Opinions

Ingraham, J.:

The defendant was, indicted for voting at an election, not being qualified to vote. The indictment alleged that the defendant with one John M. Clark was indicted for burglary in the third degree; that upon the trial of said indictment on February 21,1905, the jury rendered a verdict finding the defendant and Clark guilty of the crime of burglary in the third degree ; that the court ordered that the judgment against the defendant for the felony and burglary in the third degree whereof he was so found guilty should be suspended and afterwards, to wit, on Tuesday, the 5th of November, 1907, there being held a general election throughout the State of New York, the said Fabian, the defendant, for the purpose of voting at said election, did personally present himself and appear before the inspectors of election of the eighteenth election district of the thirteenth Assembly district of the county of New York at a meeting of the said inspectors of election then being duly held for the purpose of said election at the duly appointed and designated polling place of the said election district, and did then and there knowingly vote at said election in the said election district, not being then and there qualified therefor and not having the right then and there to vote thereat in this, to wit, that he, the said George Fabian had theretofore been by a verdict of a jury so as aforesaid found guilty of the said crime and felony of burglary in the third degree after which said verdict judgment had been so as aforesaid suspended, all of which he, the said George Fabian, then and there well knew against the form of the statute in such case made and provided. The question, therefore, is presented of whether a person convicted of a felony by the verdict of a jury where the judgment thereon has been suspended and no judgment entered upon the conviction is incapable of voting in the State of New York.

The Constitution of this State that first provided for a disqualification to vote because of the conviction of a crime is article 2 of the Constitution of 1821. After prescribing the qualification of voters, that article provided in section 2 that “ laws may be passed excluding from the right of suffrage persons who have been or may be convicted of infamous crimes.” Under the authority thus conferred the Legislature by section 3 of title 1 of chapter 130 of the Laws of 1842

* provided that no person who shall have been convicted of an infamous crime, deemed by the laws of this State a felony, at any time previous to an election, shall be permitted to vote thereat unless he shall have been pardoned before or after his term of imprisonment has expired and restored by pardon to all the rights of a citizen. Section 23 of title 4 of the same statute provided that if any person so convicted (of an infamous crime) “ shall vote at any such election, unless he shall have been pardoned and restored to all the rights of a citizen, lie shall be deemed guilty of a misdemeanor.” It was also provided by section 13 of title 7 that any person not duly qualified to vote under the laws of this State, who shall knowingly vote or offer to vote at any general or special town or charter election in this State, shall be adjudged guilty of a misdemeanor. This statute remained in force until the adoption of the Constitution of 1846. Article 2 of that Constitution provides for the qualification of voters, and section 2 of that article provides that “ Laws may be passed excluding from the right of suffrage all persons who have been or may be convicted of bribery, of larceny or of any infamous crime.” This section was amended in 1874, so that the provision was continued as follows: “ The Legislature at the session thereof next after the adoption of this section shall and from time to time thereafter may enact laws excluding from the right of suffrage all persons convicted of bribery or of any infamous crime.” In compliance with this mandate the Legislature by chapter 138 of the Laws of 1875 amended section 23 of title 4 of chapter 130 of the Laws of 1842 so as to provide: “ Any person who, having been convicted of bribery or any infamous crime, shall vote at any election unless he shall have been pardoned and restored to all the rights of a citizen, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be imprisoned in the county jail for the term of six months.” This provision of the act of 1842, as amended by the act of 1875, was, by chapter 693 of the Laws of 1892, re-enacted as section 41-1 of the Penal Code as follows: “ Any person who has been convicted of an infamous crime, and has been sentenced or committed therefor to a State prison or penitentiary, who votes at any election, unless' he shall have been pardoned and restored to all the rights of a citizen, is guilty of a misdemeanor,” and section 13 of title T' of the act of 1842, which provided that any person who knowingly votes or offers to vote at any election or town meeting, when not qualified, was guilty of a misdemeanor, was also, by chapter 693 of the Laws of 1892, continued as section 41-in of the Penal Code; and by chapters 77 and 282 of the Laws of 1894 the section was amended so that a violation of this section was made a felony.* **§Under the provisions of section 41-1 of the Penal Code there was first introduced into the statute a provision qualifying the former provision making it a misdemeanor for a person convicted of an infamous crime to vote, by providing that he must not only have been convicted of such a crime, but he must also have been “ sentenced or committed therefor tp a State prison or penitentiary; ” and although a person who was disqualified from voting because of such a conviction would apparently have been within the terms of section 41-m of the Penal Code, as by the express provision of the Election Law he was not qualified to vote, there being both under the act of 1842 and the provisions of the Penal Code, a special provision regulating the punishment of a person voting after a conviction of an infamous crime, section 41-1 of the Penal Code would have controlled so that' a person convicted of an infamous crime would not have been guilty of a crime by voting unless he had been also sentenced or committed therefor to a State prison or penitentiary. By the Constitution of 1894, article 2 provides for the qualification of persons who may be entitled to vote at an election. Section 1 provides for the qualification of voters. Section 2 provides for the persons excluded from the right of suffrage, and in that section it is provided that “the Legislature shall enact laws excluding from the right of suffrage all persons convicted of bribery or of any infamous crime.” By the General Election Law of 1892 (Laws of 1892, chap. 680) there was a general revision of the Election Law of this State, and by section 30 it was provided that no person convicted of bribery or of an infamous crime punishable by imprisonment in a State prison shall vote at an election or town meeting unless sentenced upon such conviction to a reformatory, or unless he shall have been pardoned before or after the expiration of his term of imprisonment and restored by the pardon to all the rights of a citizen. After the adoption of the Constitution of 1894 the Election Law of 1896 was passed (Laws of 1896, chap. 909) and chajiter 680 of the Laws of 1892 was repealed. Subdivision 10 of section 34 of that act, added by section 2 of chapter 654 of the Laws of 1901 (the Election Law now in force) 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,” and in the same year section 41 et seqr. of the Penal Code were amended by chapter 371 of the Laws of that year. That act was entitled “ An act to amend the provisions of title five of the Penal Code relating. to crimes against the elective franchise.” By section 4, section 41-1 of said title of the Penal Code “ is hereby repealed,” and section 5 provides that section 41-in of said title, as amended, was thereby designated as section 41-1, and was amended so as to read as follows: “Any person who: 1. Knowingly votes or offers or attempts to vote at any election, primary election or town meeting, when not qualified; or * * * 5.- Being an inhabitant of another State or county, votes or offers or attempts to vote at an election, primary election or town meeting in this State, or permits, aids, assists, abets, procures, commands or advises another to commit or attempt any act named in this section is guilty of felony, punishable by imprisonment in a State prison not less than one nor more than five years.” This section has been since amended by section 10 of chapter G25 of the Laws of 1905. It was this section of the Penal Code as thus amended under which the defendant was indicted. There are two questions presented: First, whether under this provision of the Constitution, in force at the time of this amendment of the Penal Code, the Legislature was authorized to disqualify a person against whom there had been a verdict of a jury convicting him under an indictment for a felony, but where no judgment had been entered and who had not been actually imprisoned; and, second, whether the Legislature, having that power, had exercised it. I think it quite clear that the Legislature had the power to determine that a conviction without judgment would disqualify a person from voting. The Constitution expressly preserves to all persons charged with a felony the right to a trial by jury. (Art. 1, § 2.)' By section 6 of the same article no person can be held to answer for an infamous crime unless on the presentment or indictment of a grand jury; thus, no person can be punished for a felony except upon conviction by a jury, and when the Legislature was directed to exclude from the right of suffrage all persons convicted of bribery or of an infamous crime, no one could be so excluded except upon a conviction of the offense by a jury; and when the Constitution (Art. 2, § 2) said that “ the Legislature shall enact laws excluding from the right of suffrage all persons convicted of bribery or of any infamous crime,” there was for the first time a mandate to the Legislature which required it to exclude from the right of suffrage all persons who had been so convicted. The object of this provision was not to impose an additional penalty for the crime, but to protect the right of suffrage. It was the verdict of the jury that established, the guilt of the person charged with the crime, and it seems to me that it was intended to provide that when the guilt of a person had been established he should not thereafter be allowed to vote. The question is then presented as to. whether the Legislature has excluded from the right of suffrage a person who has thus been convicted by the verdict of a jury. As before stated, by section 41-1 of the Penal Code, in force when the Constitution of 1894 was adopted, no crime was committed unless a person who had been convicted of an infamous crime and had been sentenced or committed therefor to a State prison or penitentiary had voted at an election. After the adoption of the Constitution of 1894, where the direction to the Legislature was mandatory, this provision of the Penal Code was repealed and there was substituted for it a provision that any person who knowingly votes, or offers or attempts to vote, at an election, when not qualified, is guilty of a felony. The indication of the legislative intent seems to me to be clear. ' It imposed a penalty upon every person who knowingly votes, or offers to vote, at an election, when not qualified to vote ; and at the same session of the Legislature there was passed the General Election Law, which, by subdivision 10 of section 34 (Laws of 1896, chap. 909, added by Laws of 1901, chap. 654), provided that no person who has been convicted of a felony shall have the right to register for or vote at any election unless he should have been pardoned and restored to the rights of citizenship, and that the Legislature intended to repeal the provision which only made it a crime for a person who had been convicted and imprisoned to vote at an election by having the qualification to vote to be determined by the General Election Law which was passed at the same session of the Legislature, and then that every one who was not qualified under the Election Law, but who voted or attempted to vote, should be guilty of a felony ; and then by the Election Law provided that no person who had been convicted of a -felony should have the right to vote, or attempt to vote, at any election unless he shall have been pardoned. The guilt or innocence of a person . charged with a felony depends upon his conviction by a jury, and the verdict of the jury necessarily determines his guilt or innocence of the crime charged. When the judgment shall be entered upon that conviction, or when the imprisonment shall actually commence, is largely within the discretion of the court. It certainly could not have been intended that where an election should occur between the time of the conviction by the jury and the entry of the formal judgment upon such conviction, the convicted person should be allowed to vote. The suspension of a sentence is nothing more than the postponement by the judge before whom the case was tried of the entry of the judgment and the commencement of the imprisonment prescribed by law. There can be no doubt but that the defendant can now or at any time be called up and sentence imposed upon him for the crime for which he has been convicted by the jury.* He has not been pardoned or relieved from the consequences of his violation of law. The fact of the conviction by the jury remains. An examination of the provisions of the Penal Code shows that there is a clear distinction between a conviction by a jury and the judgment or punishment which follows. By section 9 of the Penal Code it is provided that: “ The punishments prescribed by this Code can be inflicted only upon a legal conviction in a court having jurisdiction.” Section 688-a of the Penal Code† provides that a person who, after having been three times convicted within this State of felonies or attempts to commit felonies, or under the law of any other State, government or country of crimes which if committed within this State would be felonies, commits a felony within this State, shall be sentenced upon conviction as provided for in the section. Section 69! of the Penal Code provides that where a person is convicted of two or more offenses, before sentence has been pronounced upon him for either offense, the imprisonment, to which he is sentenced upon the second or other subsequent conviction, must commence at the termination of the first or other prior term or terms of imprisonment to which he is sentenced. In those cases it seems quite evident that the conviction referred to is the conviction by a jury, and not the formal sentence or judgment pronounced upon the conviction. Section 390 of the Code of Criminal Procedure also recognizes the same distinction. It provides that if the defendant has committed a crime and there is a reasonable ground of doubt in which of two or more degrees he is guilty, he can be convicted of the lowest of those degrees only. Section 395 provides that a confession of a defendant is not sufficient to warrant his conviction without additional proof that the crime charged has been committed; sections 396 and 397 provide that upon a trial for treason the defendant cannot be convicted except upon the testimony as prescribed in these two sections; section 399 provides that a person cannot be convicted on the testimony of an accomplice unless corroborated, and section 750* provides that on an appeal from the Court of Special Sessions for the purposes of an appeal in all cases a conviction for a criminal offense shall be deemed a final judgment, although sentence shall have been suspended by the court in which the trial was had or otherwise suspended or stayed.

It seems to me quite evident that when conviction is spoken of there is intended the actual finding of the jury that the defendant is guilty, and that since the amendment of the Penal Code in 1901 any one who lias been convicted by a jury of a felony is disqualified to vote unless he, has been pardoned, and that when such person knowingly votes or offers to vote at an election he is guilty of a. crime.

It follows that the judgment appealed from must be reversed and the demurrer overruled, and the case remitted to the Court of General Sessions to be proceeded with according to law.

Patterson, P. J., and Laughlin, J., concurred; Clarke and Houghton, JJ., dissented.

See Laws of 1847, chap. 240, § 15.—[Rep.

For city and county of New York, see also, Laws of 1870, chap. 138, §§.23, 26, 28, 35, 36; Laws of 1872, chap. 675, §§ 65, 76, 92, 93; Laws of 1881, chap. 537; Consol. Act (Laws of 1882, chap. 410), §§ 1904, 1915; Id. § 2143, as amd. by Laws of 1883, chaps. 67, 276, § 35; Election Law (Laws of 1896, chap. 909), § 168, and Penal Code, § 726 et seq.— [Bep.

See Code Crim. Proc. § 470a.— [Rep.

Added by Laws of 1907, chap. 645.— [Rep.

Amd. by Laws of 1907, chap. 685.— [Rep.

See Laws of 1896, chap. 909, § 34, subd. 10, added by Laws of 1901, chap. 654.— [Rep.