Hogan v. People — 2 Thomp. & Cook 535

Majority

p. 535

Hogan, plaintiff in error, v. People.

Headnote

Election law — offenses against. Evidence.

On the trial of an indictment, under the statute making it a felony " for any person other than an inspector of elections to knowingly and willfully put, or cause to be put, ballots into a ballot-box ” at certain elections, it was admitted that the prisoner was not an inspector, and that he did put ballots into a ballot-box at an election. Held, that evidence to show that the prisoner was, at the time, acting as inspector instead of C., who had been appointed, and who had, by power of attorney, appointed the prisoner to act in his place, was properly rejected.

Error to review a conviction of the plaintiff in error. The facts appear in the opinion.

B. K. Phelps, district attorney, for the people.

The plaintiff in error was indicted under a statute of the State making it a felony “ for any person other than an inspector of elections to knowingly and willfully put, or cause to be put, ballots into a ballot-box at elections provided for in the act.” That the plaintiff in error was not an inspector is admitted, as, also, that he did put ballots into a ballot-box at an election held under the provisions of the law alleged to be violated.

On this simple statement of the case the counsel for Hogan does not argue that there is any defense; but in the court below he sought to introduce testimony to show that Hogan was acting as inspector, instead of one Conklin, who had been appointed, and who had, by power of attorney, appointed Hogan to act in his place; and on the refusal of the judge before whom the case was tried to admit the evidence, he excepted, and now asks this court to review that ruling.

We think the evidence was properly rejected. The evidence does not tend to any point but to show that some one who was wrong in his advice told Hogan to act. He knew he was not an inspector, and took some one’s statement that Conklin had power to appoint. To open the door to the defense set up here would be a dangerous precedent. If Hogan would be justified in relying on a lawyer’s advice other parties would be equally so, and it would be difficult to see hoAV the mischief could be remedied, and' the safety sought by the statute to guard elections would be at an end. How far the

p. 536

defendant’s good faith and want of bad motive ought to screen him must be left to the discretion of the court, who will pass judgment, and the power of the executive. The offense that the law denounced is clearly made out.

The j udgment should be affirmed.

Davis, P. J., and Daniels, J., concurred.

Conviction affirmed.