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People v. Zerillo

Supreme Court of New York, Appellate Division

November 3, 1911

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
FRANK ZERILLO and Others, Appellants.

APPEAL by the defendants, Frank Zerillo and others, from a judgment of the Court of General Sessions of the Peace in and

Page 813

for the city and county of New York, rendered against the defendants on the 9th day of March, 1911, convicting them of the crime of having made, as Republican primary election inspectors, false statements of the result of the canvass of ballots, with notice of an intention to bring up for review on such appeal certain intermediate orders and certain judgments theretofore rendered herein.

COUNSEL

Florence J. Sullivan, for the appellants.

Lowen Edward Ginn, Special Deputy Attorney-General, for the respondent.

DOWLING, J.:

Defendants have been convicted of a misdemeanor in that while acting as inspectors of a primary election they made a false statement of the result of the canvass of the ballots cast thereat. (Penal Code, § 41, subd. 12; now Penal Law, § 751, subd. 12.) They appeal from the judgment of conviction and seek to review thereupon, among other things, the judgment rendered on the verdict for the People on the trial of a plea of former acquittal, the denial of a motion to dismiss the indictment on the same ground, and an order made August 23, 1909, directing the resubmission of the charges herein to another grand jury. The principal question now to be determined is the validity of the order last referred to. On April 10, 1908, the defendants were first indicted for the commission of the offense in question. The indictment contained two counts, both charging the commission of the crime of making a false statement of the result of the canvass of the ballots cast at an election while defendants were inspectors of election, and both based on the same state of facts, to wit, that defendants being inspectors of election at a primary election of the Republican party held in the city of New York on September 24, 1907, for the fifth and sixth election districts of the first Assembly district, had falsely and fraudulently made a statement of the canvass of the ballots whereby they gave, in the fifth district, George Husch, a candidate for member of the executive committee of said party, fifteen votes instead of sixty which he

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had actually received, and Rocco Dalessandro, his opponent, sixty-one votes instead of seventeen actually received; and in the sixth district nine instead of thirty-nine to Husch, and forty-six instead of eleven to Dalessandro. To this indictment a demurrer having been interposed upon the ground, among others, that the indictment charged more than one crime, and that it failed to comply with the provisions of sections 275 and 276 of the Code of Criminal Procedure, Judge CRAIN, after hearing argument, sustained the demurrer on the ground that the crime with which the defendants were charged in the indictment was a felony, being for a violation of section 41m of the Penal Code, inasmuch as they were specifically accused of 'the crime of making a false statement of the result of the canvass of the ballots cast at an election' whereof defendants were inspectors, which clearly brought the crime within the section referred to; while in fact the acts with which the defendants were charged having occurred at a primary election constituted a misdemeanor only, being a violation of section 41, subdivision 12, of the Penal Code. He, therefore, held that as defendants had been accused of the commission of a felony occurring at a general election, while the facts averred did not support that charge, and as the facts averred did show the commission of a misdemeanor occurring at a primary election, but defendants had not been accused of the latter crime, the indictment was fatally defective and the demurrer must be sustained. This opinion was handed down June 11, 1908, and in it Judge CRAIN made no reference to any resubmission of the charges to the grand jury, nor did he then direct it to be submitted. On December 14, 1908, the Attorney-General moved before Judge CRAIN in Part 5 of the Court of General Sessions for an order directing that the charge against the defendants be resubmitted to the grand jury.

This motion having been referred to Part 1 of the same court, was there heard by Judge ROSALSKY, who granted the application against defendants' opposition, and finally made the order dated August 23, 1909, directing the submission to the grand jury of the county of New York of the violation of section 41, subdivision 12, of the Penal Code, alleged to have been committed by defendants, and acting under that order the indictment

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was found upon which defendants have been convicted. At the outset it may be said that there can be no question but that the acts constituting the offense with which defendants are now charged are the same as those set forth in the first indictment. The things they are accused with doing are precisely the same-- making a false statement of a canvass of the votes at a certain primary election. The new indictment adds no new fact and omits no fact formerly set forth. Furthermore, the Attorney-General himself contended at the time of the argument of the demurrer that the former indictment was intended to plead two separate crimes, one on its first count under section 41m of the Penal Code, and the other under its second count under section 41, subdivision 12, thereof. The affidavits of the district attorney on the motion to resubmit set forth that it was desired so to do on the second or misdemeanor charge. It is plain that the offense set forth already in the second indictment is identical with an offense set forth in the first indictment.

The sections of the Code of Criminal Procedure regulating the proceedings upon the allowance of a demurrer are as follows:

'§ 326. The court must give judgment upon the demurrer either allowing or disallowing it, and an order to that effect ...


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