McLaughlin, J.:
This appeal is from a judgment convicting the defendant of a felony for which he was sentenced to he imprisoned for a term of not less than one, nor more than three years. (Laws of 1901, chap. 425, adding Penal Code, § 687a.) The fact's set forth in the indictment as constituting the crime were, in substance, that on the 7th day of November, 1899, one William M. Chapman, a deputy superintendent of elections in and for the metropolitan election district, lawfully had in his custody and under arrest one James Bassett, who was guilty of a felony, in that he had falsely registered as a qualified voter in a certain district of the city of New York, and that the defendant, having knowledge of such facts, hindered and delayed Chapman in the performance of' his duties as such officer, in violation of the provisions of section 7 of chapter 676 of the Laws of 1898, as amended by chapter 499 of the Laws of 1899, by acting with others in releasing Bassett and aiding him to escape.
At the trial'it appeared, or evidence was adduced from which the jury might have found, that Chapman was a duly appointed deputy superintendent of elections and at the time stated in the indictment and for some.time prior thereto had been acting as such; that on the 20th of October, 1899, Bassett claimed the right to register as an elector in a certain election district of the city of New York for the purpose of qualifying himself to vote in such district at the general election to be held on the seventh of November following; that his right to register was challenged by Chapman, but, notwithstanding that fact, lie took the oath required by statute and was duly registered ; that thereafter Chapman instituted an investigation for the purpose of ascertaining whether Bassett resided at the place given by him in his application for registration, and as a part of such investigation took him to the office of the Superintendent of Elections for examination, but what there transpired does not appear in the record before us. It is, however, fairly to be inferred, inasmuch [27] as no proceedings were taken to strike Bassett’s name from the roll of qualified voters prior to the election, that facts were not established which justified action being taken for that purpose. This inference must necessarily be drawn, in view of the fact that no evidence whatever was offered at the trial that Bassett did not have the legal right to register in the district in which he did, or to vote therein at the general election held on November 7, 1899. On the day of election Bassett presented himself at the polling place in the district where he had registered, and as he approached the ballot clerk he gave his name and address and asked for ballots, whereupon Chapman, who had previously gone to the polling place, stepped forward, placed his hand upon Bassett’s shoulder, at the same time saying that he arrested him for illegal registration, and what followed such announcement is described by' Chapman. He testified that: “A dispute immediately arose as to whether he should be arrested before he voted or after he voted. I said my orders were to place him under arrest before he voted. The crowd then, among whom was Hochstim, said that he should vote first and then after-wards I could arrest him.” A disturbance immediately followed, in which several persons, including the defendant, took part, and the result of which was that Chapman was pushed into a corner of the room and there kept until Bassett had voted and escaped from the room.
At the close of the People’s case, and again at the close of the whole case, motions were made by the defendant’s counsel to direct the jury to acquit the defendant, upon the ground that the People had failed to establish facts sufficient to sustain the indictment, in that they had failed to prove that Bassett was guilty of the felony of false registration. Both motions were denied and an exception in each instance duly taken. These exceptions present one of the grounds upon which a reversal of the judgment of conviction is asked.
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McLaughlin, J.:
This appeal is from a judgment convicting the defendant of a felony for which he was sentenced to he imprisoned for a term of not less than one, nor more than three years. (Laws of 1901, chap. 425, adding Penal Code, § 687a.) The fact's set forth in the indictment as constituting the crime were, in substance, that on the 7th day of November, 1899, one William M. Chapman, a deputy superintendent of elections in and for the metropolitan election district, lawfully had in his custody and under arrest one James Bassett, who was guilty of a felony, in that he had falsely registered as a qualified voter in a certain district of the city of New York, and that the defendant, having knowledge of such facts, hindered and delayed Chapman in the performance of' his duties as such officer, in violation of the provisions of section 7 of chapter 676 of the Laws of 1898, as amended by chapter 499 of the Laws of 1899, by acting with others in releasing Bassett and aiding him to escape.
At the trial'it appeared, or evidence was adduced from which the jury might have found, that Chapman was a duly appointed deputy superintendent of elections and at the time stated in the indictment and for some.time prior thereto had been acting as such; that on the 20th of October, 1899, Bassett claimed the right to register as an elector in a certain election district of the city of New York for the purpose of qualifying himself to vote in such district at the general election to be held on the seventh of November following; that his right to register was challenged by Chapman, but, notwithstanding that fact, lie took the oath required by statute and was duly registered ; that thereafter Chapman instituted an investigation for the purpose of ascertaining whether Bassett resided at the place given by him in his application for registration, and as a part of such investigation took him to the office of the Superintendent of Elections for examination, but what there transpired does not appear in the record before us. It is, however, fairly to be inferred, inasmuch [27] as no proceedings were taken to strike Bassett’s name from the roll of qualified voters prior to the election, that facts were not established which justified action being taken for that purpose. This inference must necessarily be drawn, in view of the fact that no evidence whatever was offered at the trial that Bassett did not have the legal right to register in the district in which he did, or to vote therein at the general election held on November 7, 1899. On the day of election Bassett presented himself at the polling place in the district where he had registered, and as he approached the ballot clerk he gave his name and address and asked for ballots, whereupon Chapman, who had previously gone to the polling place, stepped forward, placed his hand upon Bassett’s shoulder, at the same time saying that he arrested him for illegal registration, and what followed such announcement is described by' Chapman. He testified that: “A dispute immediately arose as to whether he should be arrested before he voted or after he voted. I said my orders were to place him under arrest before he voted. The crowd then, among whom was Hochstim, said that he should vote first and then after-wards I could arrest him.” A disturbance immediately followed, in which several persons, including the defendant, took part, and the result of which was that Chapman was pushed into a corner of the room and there kept until Bassett had voted and escaped from the room.
At the close of the People’s case, and again at the close of the whole case, motions were made by the defendant’s counsel to direct the jury to acquit the defendant, upon the ground that the People had failed to establish facts sufficient to sustain the indictment, in that they had failed to prove that Bassett was guilty of the felony of false registration. Both motions were denied and an exception in each instance duly taken. These exceptions present one of the grounds upon which a reversal of the judgment of conviction is asked.
We are of the opinion that the exceptions were well taken and that they necessitate a reversal of the judgment. The crime, for the commission of which the defendant was convicted, was that he, at the time stated in the indictment, hindered and delayed Chapman, a deputy superintendent of elections, in the performance of his duty, in violation of section 7 of the statute of 1898, as amended, hereinbe[28] fore referred to, which provides that any person who shall willfully hinder or delay a deputy superintendent of elections in the performance of his duty shall he guilty of a felony. That the evidence justified the jury in finding that the defendant did, in fact, hinder and delay Chapman in attempting to arrest Bassett, cannot, we think, be seriously questioned. It is conceded that the arrest was attempted to be made without a warrant. The Metropolitan Election' District Act imposes certain dutiés upon deputy superintendents of elections, and, among others, to arrest without a warrant any person who, in the presence of such officer, violates or attempts to violate any provision óf the Election Law or the Penal Code relating to crimes against the elective franchise (Laws of 1898, chap. 676, § 6, subd. 2). It does not require such officer to arrest without a warrant in any other case, nor has he any authority to do so under the act. Here, absolutely no proof whatever was offered to the effect that Bassett had violated or attempted to violate any provision of the ‘Election Law or committed any crime. It is true that Chapman had previously challenged Bassett’s right to register, but the challenge was of no avail, inasmuch as evidence was furnished sufficient to satisfy the officers having the registry in charge, nor did the People upon the trial, notwithstanding the fact was alleged in the indictment, attempt to prove that Bassett did not, in fact, have a legal right to register, or to vote at the time the attempt Avas made to arrest him. In the absence, therefore, of proof to the effect that Bassett was guilty of the felony of false registration, as alleged in the indictment, or that he, at the time, had no right to vote, or had committed some crime against the elective franchise, no. duty was imposed on Chapman, and he had no right to arrest him, and in attempting to do so he Was not acting in the line of his duty. Under the statute (§ 3), Chapman was a peace officer, but this did not give him a right to arrest without a warrant, any more than did the act under which he was appointed. An arrest can be made under section 177 of the Code of Criminal Procedure, by a peace officer without a warrant, only when a crime has been committed, or attempted in his presence, or where the person arrested has committed a felony, although not in his presence, or where a felony has, in fact, been committed and. the officer making the arrest reasonably believes the person arrested to have committed it. (Craven v. Bloomingdale, 54 App. Div. 266.) [29] Here, as already indicated, the People failed to establish any of the facts which justified Chapman as a peace officer in making an arrest without a warrant, and in attempting to do so he had no more authority than he did as deputy superintendent of elections. Under the facts established, Chapman’s act was unauthorized and an unjustifiable interference with an elector’s right to vote. There was, therefore, at the close of the People’s case, as well as at the close of the whole case, a failure to prove the fact alleged in the indictment which would have justified Chapman in arresting Bassett without a warrant, viz., that he was guilty of “ the felony of false registration,” and for this failure the jury should have been directed to acquit.
The judgment of conviction appealed, from must be reversed and a new trial granted.
O’Brien and Ingraham, JJ., concurred; Laughlin, J., concurred in result.