SUPREME COURT — APPELLATE DIVISION — FIRST DEPARTMENT.

July 7, I920.

#### THE PEOPLE v. IGNATZ LUFT.

(192 App. Div. 713.)

(1) Penal Law, section 751, subdivision 12—False statement of RESULT OF CANVASS OF BALLOTS.

The word "wilfully" as used in subdivision 12 of section 751 of the Penal Law, which makes it a misdemeanor wilfully to make a false statement of the result of a canvass of the ballots east at an election, means something more than a voluntary act, and more also than an intentional act which in fact is wrongful; it includes the idea of an act intentionally done with a wrongful purpose, or with a design to injure another, or one committed out of mere wantonness or lawlessness.

(2) Same—"Wilfully" defined—Charge.

Accordingly, on a prosecution of a poll clerk for wilfully making a false statement of the result of a canvass at a primary election, it was error for the court to charge in substance and effect that an act is done wilfully, within the meaning of the statute, which is not done under duress or restraint.

Appeal hy the defendant, Ignatz Luft, from a judgment of conviction, rendered in the Supreme Court, Extraordinary Trial Term, New York county, on the 19t.h day of April, 1918, upon the second count of an indictment, which count charged the defendant with the crime of making a false, statement of the result of the canvass of the ballots cast at an official primary election held on September 19, 1917.

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      *Emil E. Fuchs,*of counsel *(Sanford H. Cohen*with him on the brief), for the appellant.

*Robert S. Johnstone,*of counsel *(John Caldwell*Myers, *Deputy Assistant District Attorney,*with him on the brief), *Edward Swann, District Attorney,*for the respondent.

Smith, J.:

The indictment Avas for a violation of sections 751 and 766 of the Penal LaAAr. The second count of the indictment under which the conviction Avas had Avas under subdiAÚsion 12 of section’751, which makes a misdemeanor the act of any inspector Avho “ wilfully omits, refuses or neglects to do any act required by the Election Larv or otherAvise by laAv, or violates any of fhe provisions of the Election Law, or makes or attempts to make any false canvass of the ballots cast at a political caucus, primary election, or convention, or a false statement of the result of a canvass of the ballots cast thereat.”

Section 70 of the Election Law (as amd. by Laws pi 1917, chap. 703) provides for the organization and conduct of official primaries, prescribes the officers Avho shall act thereat and also provides that “ Subject only to such differences as are herein proA'ided or as may be necessary, an official primary shall be conducted in the same manner as the general election.” Section 368 of the Election Law, which is in article 10 (as renumbered from article 14 by Laws of 1913, chap. 800), relating to “ Conduct of Elections and Canvass of Votes,” provides the “ Method of Canvassing.” Subdivision 1 of section 368 of the Election LaAv (as amd.- by Laws of 1913, chap. 821, and Laws of 1934, chap. 244) provides that the canvassing of the ballots should be as follows: “ The chairman of the board of inspectors shall personally unfold each ballot of the kind then to be canvassed in such a manner that its face shall be down and all marks thereon shall be wholly concealed, and he shall place all the ballots, so unfolded and Avith their face doAvn, in *439one pile. He shall then take up each ballot in order, turn it face up, and announce in a loud and distinct voice, the vote registered on the first section or that the ballot is void or that the section is blank, as the case may be. He shall then turn the ballot face down and place it in a new pile. When he has announced the votes on the first sections of all the ballots of the kind then to be canvassed, and the poll clerk’s tallies made as hereinafter provided are proved to be correct, the official return provided for in article thirteen shall be filled out and signed. * * * As each vote is announced each poll clerk shall immediately tally it in black ink, with a downward stroke from right to left upon the official tally sheet provided for the purpose, also carefully tallying one for each blank or void vote. Each poll clerk as he tallies a vote shall clearly announce the name of the candidate for whom he tallies it, or that he 'tallies the vote blank or void as the case may be, or in case of a question submitted that he tallies the vote 1 Yes ’ or ‘ Ho ’ as the case may be, and until such announcement by each poll clerk the chairman shall not announce another vote * * * The tally sheets having been thus prepared, verified, and closed, the inspectors and poll clerks shall sign the certificate at the foot of each sheet in the places indicated thereon.”

By section 85 (as amd. by Laws of 1917, chap. 703) it is provided: “ The chairman only of the board of primary officers shall unfold the ballots taken from a ballot box.”

It is also provided in that section: *“*As soon as the polls at any official primary election shall close, the primary inspectors shall forthwith publicly canvass and ascertain the result thereof.”

Also: “ The primary inspectors shall proceed to canvass the vote by counting the ballots found in the ballot boxes without unfolding them.”

In accordance with that law this defendant acted as poll clerk in the canvass of these ballots. As the votes were announced by the chairman there is no claim that the defendant *440did not truthfully record such votes as announced. There is no proof in the case that he had any knowledge of the fact that the votes were incorrect as so announced by the chairman, and there is no proof in the case of any intentional fraud on defendánt’s part. The form of tally sheet and statement of result blanks for use at primary elections together with the certificate of the board of primary election inspectors is prescribed by section 79 of the Election Law (as amd. by Laws of 1917, chap. 703), and the duty of making a statement of the result of a primary election is regulated by section 87 of the Election Law (as 'amd. by Laws of 1915, chap. 678).

In charging the jury the court. defined the word “ intentionally,” as used in section 766 of the Penal Law, under which the first count in the indictment was drawn, and upon which count the defendant was acquitted, and used this language: “ There is one word there to which I wish to call your attention, because it has been made a subject of comment by counsel on both sides, and that is the word ‘ intentionally.’ It reads, *1*Who intentionally makes a false statement of the result of a canvass.’ That is the offense charged against this defendant—that he intentionally made a false statement. Gentlemen, the law is expressed in language that can be understood by every man of fair intelligence. There is nothing mysterious or obscure about the word *‘*intentionally.’ Each of you, I am sure, has had occasion to deal with the w-ord in your various walks of life. The law says that a man intends to do the act which he in fact does. That is a very simple rule. The law presumes him to do that, or to intend that which he actually does. And the law further presumes him to intend the natural consequences which follow that act, and his intention may be inferred from his act. It does not need, I am sure," any illustration from me to clarify that, because it is so simple. Can any one of you conceive of your doing an act, not having the intention to do it ? Look into your daily lives and into your daily transactions. Can you conceive of your performing an act that your mind *441does not. dictate you to perform? If any one of you sign a check upon your bank account for the payment of money, the law presxxmes that you intend to have that money drawn from the bank, and that yoxx intend to sign the check, and the mere fact of yoxxr signing the check of itself indicates thoxxght and intention to do it, for the taking of the pen and the tracing of the letters; all that can be done only by the dictates of the mind. I will ask any one of yoxx to try the experiment some time, and see if you can mechanically trace your name, write yoxxr name oix a paper of importance, without your intending to do so. That is the offense charged against this defendant, that he intentionally made a false return.”

Thereafter, in charging upon the definition of the word “wilfully,” as xxsed in sxxbdivision 12 of section 751 of the. Penal Law, under which the second count in the indictment was framed, the court charged as follows: “ There is bxxt one Word on that sxxbject which I call your attention to, and that is the word 4 wilfully.’ The distinction between the word 4 wilfully ’ and the word ‘ intentionally ’ is shadowy. In a fine grammatical sense there may be a very narrow distinction, but substantially, so far as these sections are concerned, and so far as the act of this defendant is concerned, it substantially means the same thing. I am sure that yoxx all understand what freedom of will is. An act done in conformity with the freedom of the will is doxxe wilfxxlly. And I ask you if you can conceive that a man in the possession of his senses doing an act against his will except he be xxnder dxxress, or that he be threatened with violence—in other words, that the freedom of will be restrained or sxxspended. In sxxch a case, a man if he does an act under those circumstances, the law will relieve him of responsibility; bxxt there is no claim here, gentlemen, so far as I have heard the evidence, and it is for you to say if you have heard any evidence here, that the defendant was under any restraint or that he signed this paper as the result of coercion or that he was threatened or intimidated into signing it. There is no evidence *442before you but that the defendant was in full possession of his senses and in absolute control of his own actions when he signed this return, and being so, he signed this return in the way described by the testimony.”

To this definition of the word “ intentionally,” and of the word “ wilfully,” exception was duly taken by the defendant’s counsel. Thereafter the defendant’s counsel asked the court to charge: “ And I ask your honor to charge, in view of your honor’s charge, as to honesty, that it is the rule that if they believe that this man was absolutely acting honestly in his duties, that they should acquit.” This the court declined to charge in the language of the request. The defendant’s counsel then said: “ Your honor stated that they should expect him to do a thing honestly, and I ask your honor to charge the jury that if they believe that he did it honestly, that they should acquit.” This the court declined to charge in the language of the request and an exception was duly taken. The question presented then upon this appeal is whether the court in its charge properly defined the meaning of the word “ wilfully ” as used in the statute.

In Wass *v.*Stephens (128 N. Y. 128) the guiding rule is thus stated: “ But the word ‘ wilfully ’ in the statute means something more than a voluntary act, and more also than an intentional act which in fact is wrongful. It includes the idea of an act intentionally done with a wrongful purpose, or with a design to injure another, or one committed out of mere wantonness or lawlessness.” While that statement was made in the construction of another statute, it is equally applicable to the interpretation of the statute which is here claimed to have been violated.

Within the rule Stated in the Wass Case (supra) we are of opinion that the court did not properly instruct the jury as to defendant’s liability under the statute under which he has been convicted. In People v. Ullman (184 App. Div. 93) the question was presented as to whether the chairman who person*443ally examined the ballots and declared the result was guilty of wilfully taking part in the making of a false canvass, or a false statement of the result of the ballots cast at such canvass. In that case the court did not attempt in its charge to give any definition of the word “ wilfully,” as in the case at bar. There, as here, the indictment contained two counts, and it was only upon the second count that the defendant was convicted, which makes it a crime to wilfully make a false statement of the result.

Because the jury was improperly instructed as to the rule of the defendant’s liability, this judgment must be reversed and a new trial granted.

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

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