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People v. Lilymeld

192 A.D. 719 Court First Department, Decision date 1920-07-02 English

Delivered by Smith, J.:

Contents

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p. 719
The People of the State of New York, Respondent, v. Joseph Lilymeld, Appellant.
First Department,
July 2, 1920.

Headnote

Crimes — making false statement of result of canvass of ballots at election in violation of subdivision 12 of section 761 of Penal Law — charge — failure to charge specifically as to duties of chairman and inspectors acting as ballot clerks.
Oh a prosecution for wilfully making a false statement of the result of a canvass at a primary election in violation of subdivision 12 of section 751 of the Penal Law, it was error for the court to refuse to charge specifically what were the duties under the law of the chairman and of the inspectors acting as ballot clerks, because of its bearing upon the willful intent of the defendant in making the statement of the result of the canvass.
Appeal by the defendant, Joseph Lilymeld, from a judgment of conviction, rendered in the Supreme Court, Extraordinary Trial Term, New York county, on the 19th day of April, 1918, convicting the defendant of willfully making a false statement of the result of a canvass at a primary election held on September 19,1917, in violation of subdivision 12 of section 751 of the Penal Law.
Emil E. Fuchs of counsel [Sanford H. Cohen with him on the brief], for the appellant.
Robert S. Johnstone, Assistant District Attorney, of counsel [Felix C. Benvenga with him on the brief], Edward Swann, District Attorney, for the respondent.

The questions presented in this case are substantially those presented in the case of People v. Luft ( 192 App. Div. 713 ) the decision of which is handed down herewith. The word “ wilfully ” was defined by the court substantially as it was defined in the Luft case, and, furthermore, the court refused to charge specifically what were the duties under the Election Law of the chairman and of those inspectors acting as ballot and poll clerks. The refusal to charge as to the specific provisions of that statute was, we think, material error by reason

p. 720
of its bearing upon the willful intent of the defendant in making the statement of the result of the canvass.

The judgment should, therefore, be reversed and a new trial granted.

Clarke, P. J., Dowling and Page, JJ., concur.

Judgment reversed and new trial granted. Settle order on notice.

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