#### PEOPLE v. BATES.

(Supreme Court General Term, Fourth Department.

July, 1894.)

Office and Officer—Intrusion into Public Office.

On a prosecution for “willfully” intruding into a public office (Pen. Code, § 56), defendant may show that he entered under a bona fide claim of right, after taking the advice of counsel; and it is error for the court to charge that the word “willfully,” in the statute, means “intentional, not by inadvertence,” and that, if defendant “intended to do what he did do, then he did so willfully.”

Appeal from court of sessions, Tompkins county.

Warren S. Bates was convicted of intrusion into a public office, and appeals.

Reversed.

Argued before HARDEN, P. J, and MARTEN and MERWIN, JJ

John A. Milne and S. D. Halliday, for appellant.

J. H. Jennings, Dist. Atty., for the People.

MERWIN, J.

By section 56 of the Penal Code, it is provided that—

“A person who willfully intrudes himself into a public office, to which he has not been duly elected or appointed, or who, having been an executive or administrative officer, willfully exercises any of the functions of his office, after his right to do so has ceased, is guilty of a misdemeanor.”

*895Under this, the defendant was convicted of intruding into the ■office of excise commissioner in the town of Ulysses, in the county ■of Tompkins. In that town the excise commissioners in 1890 were J. B. Spaulding, whose term of office expired in the year 1891, L. W. Carpenter, whose term expired in 1892, and H. C. King, whose term expired in 1893. These persons met as a board of excise on May ■5, 1890, and, after transacting the usual business of the year, they .adjourned to June 5, 1890. At this date they met and entered upon their minutes the following:

> “Upon examination of a law passed by the last legislature, the board have •decided that they are not qualified to act as excise commissioners, having failed to comply with the requirements of said law.”

They thereupon adjourned indefinitely, and did not meet again ■during the year. The law which they referred to was chapter 163 of the Laws of 1890, which was passed and took effect on April .22, 1890. It provided that within 30 days after the passage of the act, every excise commissioner should make and subscribe an oath, before a proper officer, “to the effect that he is neither directly or indirectly interested in the manufacture or sale of any spirituous ■or malt liquors, ales, wine or beer,” and that such oath should be filed in the clerk’s office of the town. It was also provided that a failure to take such oath “shall disqualify any one from holding, •or debar any one from continuing to hold, any office or position mentioned in this act.”

At the annual town meeting in February, 1891, there were two tickets in the field for excise commissioners, each having three names on, one being stated to be for three years, one for two years, .and one for one year. The successful ticket was W. J. Nixon for three years, W. J. Farrington for two years, and H. C. Kang for one year. These duly qualified and entered upon the discharge of the duties of the office. At the annual town meeting in February, 1892, there'were two tickets in the field for excise commissioners, each having but one name on. On one was H. O. King, and he was elected, and he duly qualified and entered upon the discharge of the duties of the office. At the town meeting in February, 1893, there were two tickets, upon one of which there were three names,-— A. V. Van Liew for three years, Warren S. Bates for two years, and C. W. Northup for one year. The other ticket had but one name, and that for three years. The ticket having the three names re■ceived a majority of the votes. Thereafter, and on May 13, 1893, Van Liew and the defendant Bates met as a board and granted several licenses. That is the intrusion here complained of, and for which defendant was indicted. It is claimed by the people that the office which the defendant assumed to fill was rightfully possessed by King, under his election in 1892. The defendant claims that King, having been elected in 1890 for three years, still held that office in. 1892, and so was then ineligible to election to another position on the same board, and that therefore, the election in 1892 being invalid, there was in 1893 a vacancy for two years, to which the defendant was properly elected. It seems to have been conced<ed at the trial that the failure of the commissioners in 1890 to take *896the oath prescribed by the act of 1890 did not of itself vacate the offices they held. It was, however, left to the jury, as a question of fact, to say whether or not King, by what he did in 1890, and his subsequent conduct, abandoned the office he held in 1890, and the court charged that, if the jury found such abandonment, then King in 1892 was eligible, and so no vacancy in 1893 for two years existed for defendant to fill, and that, if they did not find such abandonment, then the defendant was not guilty. The court also charged, as to the force of the word “willful” in. the statute, that its meaning “is that of intentional, not by inadvertence;” that, “if he [the defendant] intended to do what he did do, then he did so willfully.” And the court refused to charge, upon the request of defendant, that) if the defendant “acted in good faith, and believed he was excise commissioner in 1893, he was not guilty.” In the course of the trial, the defendant offered to prove that at the time of his election he made investigation as to the question of the legality of the election, and took the advice of attorneys, and acted in good faith, believing he was legally elected. This was excluded. Assuming that the question of abandonment was one for the jury to pass upon, was the court correct in its ruling on the subject of good faith, and the meaning to be given to the term “willful”?

In Wass v. Stephens, 128 N. Y. 123, 28 N. E. 21, the court say, in speaking of section 639 of the Penal Code, which provides for the punishment of “any person who willfully or maliciously displaces, removes, injures or destroys,” among other things, any pipe or main for conducting water or gas:

> “But the word, ‘willfully’ 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 w$£ntonness or lawlessness.”

The same doctrine is asserted in Hewitt v. Newburger, 141 N. Y. 538, 36 N. E. 593. In People v. Flack, 125 N. Y. 324, 26 N. E. 267, where the defendant was indicted, under section 168 of the Penal Code, for falsely instituting an action for divorce, it was held that a charge which in substance made the question of guilt to depend solely upon .the intentional doing of an unlawful act was erroneous. It must also be found that there was a criminal intent. In People v. Stevens, 109 N. Y. 159, 16 N. E. 53, the defendant was indicted, under section 467 of the Penal Code, for the offense of intrusion on lands. The statute does not in terms make the intent a material element of the offense. Still, the court were of the opinion that if the defendant entered under a bona fide claim of right, which he might reasonably believe entitled him to take possession, it would be a defense, and it was said that the existence of a criminal intent, as a necessary constituent of the offense, must be implied. It was, however, held that, to sustain such a defense of entry in good faith, there must be some colorable ground for such a claim.

In the light of these authorities, we think the court erred in excluding evidence of good faith, and, in its charge, upon the force to be given to the word “willful.” In substance, the guilt of the de*897fendant was made to depend solely upon the question of whether he was entitled to the office. The defendant was, we think, entitled to the benefit of the rule, laid down in the Stevens Case, that if he entered under a bona fide claim of right, which he might reasonably believe entitled him to take possession, it would be a defense. It cannot be properly said that there was no colorable ground for such a claim. King’s first term had not expired in 1892; he had not, as the court, in effect, held, forfeited or resigned the office,^ and the question of abandonment was in sufficient doubt to send it for determination to the jury. A majority of the electors evidently supposed that the position of defendant was correct. It follows that the judgment should be reversed, and a new trial ordered. All concur.

Judgment and order reversed, and a new trial ordered, and the clerk directed to enter judgment and remit a certified copy thereof, with the return and decision of this court, to the court of sessions of Tompkins county, pursuant to sections 547 and 548 of the Code of Criminal Procedure.