The People of the State of New York, Appellant, v. Henry Boas, Respondent

The People of the State of New York, Appellant, v. Henry Boas, Respondent. The provision of the Code of Criminal" Procedure (§ 527) providing that “ the appellate court may order a new trial if it be satisfied that the verdict against the prisoner was against the weight of evidence, * * * or that justice requires,” is applicable only to the Supreme Court and gives that court a discretionary power. When in the exercise of that discretion it refuses or grants a new trial its determination is not reviewable here. Under the provision of said Code (§ 519), authorizing an appeal to this court by the people from a judgment of the General Term reversing a judgment of conviction, such an appeal brings up for review only questions of law. In determining whether the reversal was solely upon questions of law, the record only can be examined; the opinion of the General Term forms no part thereof and may not be looked at. Unless, therefore, the order of the General Term shows that the Supreme Court has exercised its discretion and refused a new trial upon the facts and granted it only for errors of law, there is nothing for this court to review on appeal to it. (Argued April 30, 1883; decided June 5, 1883.) Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made March 20, 18S3, which reversed a judgment of the Court of General Sessions, in and for the city and county of Hew York, entered upon a verdict convicting defendant of a violation of the law (Chap. 675, Laws of 1872) making it felony for an inspector of election to willfully exclude the vote of an elector, lawfully entitled to vote. (Reported below, 29 Hun, 377.) The material facts are stated in the opinion. John Vincent, assistant district attorney, for appellant. An intentional and conscious act is all that was required to justify the verdict. Willfully means intentionally, and is distinguished from maliciously in not implying an evil mind. (2 Bouvier’s Law Dict. 817; L. R., 2 Cr. Cas. Res. 161; Penal Code, §§ 78, 224, 639, 718.) The facts disclose a willful intent to defy the law. (Election Laws, § 67; Leighton v. People, 10 Abb. [N. S.] 261; Sindram v. People, 88 N. Y. 396 ; In re Majone, opinion by Daniels, J.) The inspector’s duties were simply ministerial. (People v. Pease, 30 Barb. 588.) The testimony of the witness Ruckert was properly admitted as bearing upon the question of intent. (Mayer v. People, 80 N. Y. 364-373 ; Weyman v. People, 4 Hun, 511.) The recorder in his charge properly defined the word “ willful” as meaning a felonious or malicious act. (People v. Hall, 90 N. Y. 498.) William F. Kintzing for, respondent. The court erred in refusing to advise the jury, as requested, to acquit at the close of the testimony. (Bennett v. People, 49 N. Y. 137; Laws of 1872, chap. 675.) The law makes the inspectors the judges of the qualifications of a voter, his right to vote, and in the exer-. cise of their deliberate judgments upon that question they cannot be held responsible, either civilly or criminally without proof of malice. (Bishop on Statutory Crimes, § 806; Byrne v. State, 12 Wis. 519; State v. Daniels, 44 N. H. 383 ; State v. McDonald, 4 Harr. [Del.) 555 ; State v. Porter, id. 556; Harmon v. Tappenden, 1 East; Jenkins v. Waldron, 11 Johns. 114; People v. Coon, 15 Wend. 227; People v. Norton, 7 Barb. 477 ; King v. Barron, 3 Barn. & Adolph. 452; 1 Russell on Crimes, 136 ; 1 Chitty’s Cr. Law, 873 ; Whart. on Am. Cr. Law [2d ed.], 1732.) To do an act “ willfully ” in contemplation of law is to do it “ maliciously, criminally, with knowledge aforethought and wicked design.” (Worcester’s Dict.; Webster’s Dict.) Testimony as to the defendant’s guilt, or participation in the commission of a crime wholly unconnected with that for which he is put on trial, cannot be admitted. (1 Roscoe’s Crim. Ev. [7th ed.] 20, 21, 57, 92, note; Conn v. Call, 31 Pick. 215; Dunn v. State, 2 Ark. 229; Bottomly v. U. S., 1 Story, 135; 1 Leigh, 574; Barbour’s Crim. Law [2d ed.], 395; 2 Russell on Crimes [6th ed.], 776; 3 Greenleaf’s Ev. 13; Rex v. Farrington, Russ. & Ryan, 207; Regina v. Phelps, 1 Moody, 263.) [MAJORITY — Earl, J.] Earl, J. The defendant was an inspector of election in the city of Mew York at the election held in the fall, of 1881, and he was subsequently indicted and convicted in the General Sessions of the same city for declining to receive the vote of an elector at that election, under section 67 of chapter 675 of the Laws of 1872, which provides that every inspector of election who shall willfully exclude any vote duly tendered, knowing that the person offering the same is lawfully entitled to vote at such election,” shall, upon conviction thereof, be adjudged guilty of a felony and be punished by imprisonment in a State prison for not more than two years. He appealed from the judgment against him to the General Term of the Supreme Court, and there the judgment was reversed and a new trial was ordered. The General Term order does not state upon what ground or for what reason the judgment was reversed, and we have now to determine whether there is any thing before us for review upon this appeal. This court is strictly an appellate court, and its general jurisdiction is confined to the correction of errors of law presented in the records brought before it. Unless it is otherwise specially provided, it will never review mere questions of fact depending upon conflicting evidence, or the exercise of a discretion confided to the inferior courts. Section 527 of the Code of Criminal Procedure provides that “the appellate court may order anew trial if it be satisfied that the verdict against the prisoner was against the weight of evidence or against law, or that justice requires a new trial, whether any exceptions shall have been taken or not in the court below.” We have just decided that this section is confined in its operation to the Supreme Court, and that it has no application to this court. (People v. Hovey. ) The section clothes the Supreme Court with power, in the exercise of its discretion, to order a new trial when it shall be satisfied that the verdict is against the weight of evidence, or that justice requires a new trial; and when, in the exercise of its discretion, it shall, under the section, refuse or grant a new trial, its determination is not re viewable here. Under section 519, the people may appeal to this court from a judgment of the General Term reversing a judgment of conviction ; but such an appeal brings before ns for review only questions of law. How are we to ascertain, when the people have appealed, that the reversal was upon questions of law only ? Simply by looking at the record. The opinion of the General Term forms no part of that, and we cannot look at it for the grounds of the reversal. We must look for them in the order of the General Term, and that must show that the Supreme Court has exercised its discretion, and that the new trial was ordered for errors of law only. In a case like this, the appeal comes before us substantially in the same way that an appeal comes here from an order of the General Term of the Supreme Court granting a new trial in a civil action, after the verdict of a jury, in a case where that court had the power to grant a new trial in the exercise of its discretion, on the ground that the verdict was against the weight of evidence. In such cases, we have uniformly held that there was nothing for this court to review, unless it appeared that the Supreme Court had exercised its discretion and had refused a new trial on the ground that the verdict was against the weight of evidence and had granted it solely for error of law. (Wright v. Hunter, 46 N. Y. 409 ; Harris v. Burdett, 73 id. 136 ; Snebley v. Conner, 78 id. 218.) We cannot say, therefore, that the court below committed any error of law, as the new trial may have been ordered, in the exercise of its discretion, under section 527, and its order must, therefore, be affirmed. All concur. Judgment affirmed. Ante, p. 554.