People v. Hochstim

It would never do to refuse a certificate of reasonable doubt in this case. Subject to correction, and with the fullest deference to the learning and experience of the learned trial judge, I am unable to'see this conviction otherwise than as a most incredible miscarriage of justice. The trial instead of showing this defendant to be guilty of the crime charged against him, seems to me to show him to be guilty of nothing, and instead to reveal the complainant against him as guilty of a criminal offense of the most grave and dangerous character to the community. And yet the defendant finds himself convicted in a court of justice of an alleged felony while the complainant has not even been called to order or accused.

The defendant was indicted under the metropolitan elections district statute (section 7, as amended by chapter 499 of the Laws of 1899) for the alleged felony of hindering a deputy state superintendent of elections in the performance of his duty in the county of New York at the general election in 1899.

The evidence for the prosecution (leaving out of account altogether that for the defendant) shows that the defendant was a watcher for one of the political parties at a polling place; that the said deputy state superintendent was also stationed there in his official capacity; that James Bassett presented himself to vote; that he was duly registered as a qualified voter; that while he was standing in front of the ballot clerks giving his name and address and getting his ballot as required by law, the said deputy put his hand upon his shoulder and told him he arrested him for illegal registration. There were 25 or 30 citizens present in the room. The deputy then testifies as follows:

“A dispute immediately arose as to whether he (Bassett) 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 (the defendant), said that he should vote first and then afterwards I could arrest him. I said I would place him under arrest, and I called on the officers present to assist me.”

The deputy had no warrant of arrest; the “orders” he refers to were only oral directions from the superintendent of elections, or some superior, who of course had no power to issue a warrant. That can only be done by a magistrate on a sworn complaint. The so-called orders were of no validity whatever. The defendant said nothing whatever except that Bassett should be allowed to vote and then be arrested. The deputy persisted in his effort to arrest Bassett and prevent him from voting. This.created excitement and commotion among the crowd of citizens present. The "crowd surged about and the deputy was in that way pushed into a corner, and some person unknown to him took hold of him and threatened to strike him if he did not let Bassett vote. During the commotion Bassett was found to be duly registered and was given his ballot by the ballot clerks. He then voted and went out. The defendant stood near him and assisted him to get his ballot, and also seems to have accompanied him to the door when he went out, though this is not very clear. From first to last he neither said nor did anything except as stated above. One witness says that as Bassett, the voter, went toward the door after voting the defendant was behind him pushing him; but being closely questioned he finally says he did not see the defendant “put his hand on anybody.” The whole occurrence took only a minute or two. As Bassett went out the door was closed by some one, and the deputy says he could not get out; but this was only momentary. There is no evidence that the defendant closed the door; none of the witnesses knew who did it. That the crowd of citizens present got excited and indignant at the lawless conduct of the deputy in trying to prevent a registered voter from voting by arresting him and taking him away without a warrant, that there was a spontaneous general movement or surging of the crowd, and that the deputy was pushed about, was proved; but there is no evidence that the defendant instigated them in any way whatever. It will be a sad day indeed when such .an outrage as this deputy was committing against the law and against individual liberty shall not excite American freemen to remonstrate and show their indignation. If such a day shall ever come it will be when our liberties are no longer prized or no longer survive.

There ivas no evidence whatever given that Bassett was guilty of the felony of illegal registering. There was not even any evidence to raise a fair suspicion to that effect. The evidence is that when Bassett presented himself for registration before election this same deputy challenged him; that thereupon he was examined by the inspectors as required by law, satisfactorily answered all the pre- ' scribed statutory questions, took the oath prescribed by law, and was duly registered. He and his three brothers were registered from the same house. The said deputy after such registration and before election day went to such house about 12 times, he says,

Nevertheless the learned trial court refused to advise an acquittal, and left the case with the jury. Furthermore, it seems to me that the law was otherwise gravely misstated to the jury by the learned court, as will be pointed out. The case being of transcendent importance, involving as it does the independence and freedom of our elections upon which the duration of our system of government by the people depends, and involving also the rights and liberties of the citizen against the exercise and dangerous growth of arbitrary power in government, it is the bounden duty of every judicial officer before whom it comes to treat it with the most anxious scrutiny and care; and I shall therefore fully state the reasons for my action. It is the kind of a case concerning which judges having a full comprehension of the rights of free men and of the restraints upon government deriving its powers from the will of the people only, have in past times spoken out plainly.

1. To make out the criminal offense of hindering or delaying an officer “in the performance of his duty” (to quote the very words of the statute applicable here), the first thing that has to be proved

If then it -were the fact that the defendant hindered the deputy from arresting the voter Bassett, he would not be guilty of the felony of hindering him “in the performance of his duty,” for the deputy was not in the performance of his duty. On the contrary, he was outside of his official duty. He was committing an assault and battery, and also violating section 41k of the Penal Code, which makes it a criminal offense for any person, whether private citizen .or officer, to wilfully obstruct or delay “any elector on his way to a registration or polling place, or while he is attempting to register or vote.” Police authorities and officers should be made to know that they are subject to the penal laws, the same as every citizen. It follows that the learned trial court should have instructed the jury that the crime charged against the'defendant was not made out, and advised an acquittal.

False registering and voting is a crime to be guarded against and severely punished, but it should never be forgotten by a free people that they have more to fear as history shaw's from "the exercise and growth of arbitrary power in gpvernment than from all other vices; and crimes combined. It is important that crimes should be guarded against and punished, but far more important that arbitrary power in government should not be tolerated. No one who knows the history of the guaranties of our liberties, and of the long struggles

3. The learned trial court in refusing to advise an acquittal ruled as follows in regard to the power to arrest without a warrant, viz.:

“A peace officer may arrest a person (i. e. without a warrant) on reasonable ground, probable cause, to believe that'a crime was committed, and lie would be justified in doing it if it was a felony: but a private citizen has to go further and prove that a crime actually was committed.”

In this way the learned trial court left the jury to say whether the deputy had reasonable ground to believe that Bassett had committed the felony of illegally registering, with an instruction that if they found he had that he could lawfully arrest him without a warrant. The evidence does not disclose grounds for such a belief, if even for a-suspicion, so that even if the law were as stated, an acquittal should have been advised on the ground of lack of facts to permit of such a belief. A mere pretence of belief could not suffice.

a. But the law does not appear to be as stated by the learned court. Such a statement of the law seems quite unaccountable, except on the theory that the rights of the individual have so long been disregarded and trampled on by the police, or rather by those put in rulership over the police, in the county of New York, that even the courts sometimes in a moment of inadvertence are not conscious of the survival of such rights. We are not left to any conjecture about the law because it is declared by plain statute, which is the very contrary of the statement of the learned court. The law is that any citizen, or any peace officer, the very same, may without a warrant arrest (i) any person who commits any criminal offense in his view, whether it be only a misdemeanor, or the graver crime called a felony; and further, that any citizen, or any peace officer, the very same, may also without a warrant (2) arrest any person who has actually committed a felony although he did not see him commit it. The ancient reason for this latter was to prevent fleeing felons from escaping while a warrant was being procured. But in the case of those lesser offenses called misdemeanors by the law, no citizen, and, the very same, no peace officer, may make an arrest without a warrant unless the offense is committed in his view. ■ He may not act upon hearsay or the information of any one in respect of misdemeanors. To again state it, in the matter of arresting without a warrant, whether for a misdemeanor or for a felony, a private citizen and a peace officer have the very same right and power under the law, namely, (1) either may without a warrant arrest a person who commits any crime, whether misdemeanor or felony, in his view, and (2) either may without a warrant arrest any person who has in fact committed a felony although not in his view, but (3) neither may arrest any one without a warrant in the case of a felony unless the alleged felony has in fact been committed. If no felony has in fact been committed, then the arrest without a warrant is in every case unlawful and may be lawfully resisted. The law does not justify either an officer or a private citizen in arresting for a felony without a warrant on mere suspicion or information "that a felony has been committed. If either act without a warrant on groundless

b. To .sum it all up, every citizen has the power and the right to arrest without a warrant for every criminal offense, whether misdemeanor or felony, committed in his presence, and for every felony actually committed although not in his presence. But as it is not the legal ditty of citizens to make such arrests, and as they have not the time for them, they have provided for the appointment and payment out of their substance of police or peace officers to make such arrests. In doing so, however, they have taken scrupulous care not to make such officers their masters, but only their honorable servants; they have taken scrupulous care in their laws to confer on them no power of arrest without a warrant except that which every citizen possesses. While they have conferred on such officers no power of arrest without warrant which they do not themselves possess, they have' allowed one leniency to such officers, i. e., that already mentioned, i. e., that in case of a felony which has actually been committed, such officers may lawfully act on reasonable grounds of belief in respect of who the guilty person is. That is to say, if a felony has in fact been committed, and an officer arrests the wrong person for it without a warrant, and such person afterwards sues him for damages for the false arrest, he may defend himself by showing that he had reasonable cause to believe that such person was the right one, for in that case he acted lawfully.

c. The said ruling of the learned trial judge, that the officer could act on reasonable grounds of belief that the felony had been committed, was therefore contrary to law, for as we have seen such grounds of belief are not permitted on the head of whether the felony has in fact been committed, but only on the question of whether the person arrested is the one who committed it. An officer must actually know that the felony has tieen committed before he may arrest any one for it without a warrant; it is his business to find out that fact before he arrests without a warrant; and then he may look for the person who committed the felony, and may arrest any person “he has reasonable cause for believing” (to use the precise words of the statute) to be the person who committed it. But if the officer does not know that the felony has in fact been committed, the

4. But the learned trial judge went even beyond his said statement that the officer could act on reasonable grounds of belief that the felony had been committed, for he charged the jury that the officer had the right to make the arrest without a warrant “provided that he had reasonable cause to suspect that Bassett was not entitled to vote;” thus making suspicion enough for the officer to act on. As this must have been said in a moment of inadvertence I shall do no more than call attention to it. It may be the law of some despotic country, but it is not the law in this free republic, nor in England, nor in any free state. It means despotism.

5. The learned trial judge also refused to rule that the defendant could not be held responsible for the acts of the other persons in the room, and charged the jury that “if this defendant in_conjunction with several other persons, joined together with a common purpose and design to prevent and hinder this officer in the discharge oí his duty, then what each one did in pursuance of that purpose is the act of all the others.” There was no evidence whatever of any such combination, common purpose or design. On the contrary, it was not even shown that the defendant knew the other persons at all, and it is manifest that all that occurr'ed arose spontaneously out of the just indignation of all present at the outrageous conduct of the deputy.

6. It seems to me also that the learned trial court has caused the jury to convict the defendant of an alleged felony which does not exist at all in law. The learned trial judge instructed the jury that the defendant was indicted under section 7 of the metropolitan elections district law (Laws 1899, c. 499), and then saying “it reads as follows,” read to them as follows, viz.:

“A person who shall wilfully and feloniously hinder or delay, or attempt to hinder or delay, a superintendent or deputy superintendent of elections in the performance of his duty shall be guilty of a felony.”

There is no such clause in the said section. The said section first provides as follows: “The state superintendent, or any deputy, may call on any person to assist him in the performance of his duty”; and (leaving out what is not consecutive and relevant) it then continues, viz.:

“Any such person” * * * “who shall fail on demand by the state superintendent or any deputy to render such aid and assistance in the performance of his duty as he shall demand, or who shall wilfully hinder or delay, or attempt to hinder or delay, such superintendent or deputy in the performance of his duty, shall be guilty of a felony.”

The phrase “Any such person” plainly refers to the persons referred to in the preceding sentence, namely, any persons called upon by the officer to aid him. The statute therefore is that “any such person,” i. e., any person who has been so called upon, who shall refuse his assistance to, or hinder or delay, the officer, shall be guilty of a felony. But there is no evidence in this case that the defend

The certificate is granted; and let the defendant be bailed at once.