Under the act creating the metropolitan elections district, consisting of the counties of New York, Kings, Queens, Richmond and Westchester, and providing for the appointment of a state superintendent therein and prescribing his powers and duties, the deputy superintendents of elections are authorized, among other things, to investigate all questions relating to the registration of voters, and for that purpose they are empowered to visit and inspect any house, dwelling, building, inn, lodging house or hotel within the metropolitan district and to interrogate any inmate, house-dweller, keeper, caretaker, owner, proprietor or landlord thereof or therein as to any person or persons *Page 244 residing or claiming to reside therein or thereat. (Laws of 1898, chap. 676, as amended by Laws of 1905, chap. 689; see § 6, subd. 1.) The superintendent, his chief deputy and not more than ten deputies, duly designated by the superintendent for that purpose, are authorized to administer oaths and affirmations to any person in any matter or proceeding authorized as aforesaid and in all matters pertaining or relating to the elective franchise. (§ 7.) In November, 1905, a deputy thus designated, named Jesse Fuller, Jr., administered an oath in Kings county to the defendant and took his examination under oath with regard to the residence of John White and Bernard McKenna, two men who had registered in the sixth election district of the third assembly district in Kings county for the purpose of voting at the ensuing election. The defendant made affidavit before Deputy Superintendent Fuller on the 2nd day of November, 1905, as follows: "I reside at number 413 Henry Street, Brooklyn; I formerly resided at the corner of Henry and Baltic Streets but took up my residence at 413 Henry Street two or three months ago and slept there on the second floor, the one just above the saloon, almost every night since, and both John White and Bernard McKenna have slept there also almost every night during that time." The indictment charged the defendant in the first count with the crime of feloniously making a false statement under oath before a deputy state superintendent of elections, and in the second count with the crime of perjury, and alleged that the sworn statement above quoted was false and was known to be so by the defendant at the time when he made it.
Upon the trial there was no attempt to prove that the statement was false so far as it related to the residence of defendant himself. The learned trial judge instructed the jury that it was not claimed that the affidavit was false entirely, but that the People contended "that when Joseph J. Cahill swore that both John White and Bernard McKenna had slept there at 413 Henry Street also almost every night during the past two or three months before the 2nd day of November, 1905, *Page 245 he swore wilfully to that which he knew to be false and that McKenna and White had not so slept there." It is apparent, therefore, that the verdict of guilty must have been based solely upon a finding by the jury that the defendant had knowingly sworn falsely in regard to the residence of these two men. Both McKenna and White testified as witnesses for the prosecution upon the trial. After McKenna had stated that he registered as living at No. 413 Henry street at the instance of the defendant, his examination proceeded as follows:
"Q. What did he say to you about registering and what did you say to him about registering first?
"Mr. Littleton: I object to the evidence upon the ground that the sole issue charged against this defendant is he made a false statement, not as to this man's age or qualifications nor as to his residence, but that he made a false statement in that he said this man had slept almost always in 413 Henry Street, and that is the sole issue of this affidavit.
"The Court: Bearing on whether or not he did, he has the right to ask this question.
"Objection overruled and defendant excepted.
"Mr. Jones: Answer this last question as to who spoke first. A. Mr. Cahill asked me did I register and I said no, I wasn't of age; he said, `How many months do you lack of twenty-one?' I said `six or seven.' He said, `Go on and register anyway, I voted when I was sixteen years of age.'
"Mr. Littleton: I object and move to strike out the answer on the ground that it is utterly and entirely without any issue in this case or to any conception of the indictment in this case.
"The Court: Standing by itself it may be, but he can have all the conversation as bearing on the defendant's knowledge when he swore the man slept there if he knew he did not.
"Mr. Littleton: Your Honor doesn't seem to want to hear my objection.
"The Court: State your objection and don't think I do not, but I think it is perfectly competent. *Page 246
"Mr. Littleton: I object to it on the ground that the sole issue to be submitted to this jury is whether this man swore falsely when he swore this man slept there always, and that is no part of this issue, but does tend to prove another charge and another crime against this defendant.
"The Court: I think it is pertinent and I will allow it.
"Defendant excepted."
White also testified under appropriate objection and exception in answer to the question how he came to register from 413 Henry street if he did not sleep there: "I stood on the opposite corner and Mr. Cahill came out with a cigar in his mouth — no, he did not have a cigar, he had his hands in his pockets. He came out and he said, `Mr. White go up and register and if any harm comes to you I will see that you get out.'"
I think that the admission of this evidence was clearly erroneous; that it must have been exceedingly prejudicial to the defendant, and that the error in receiving it and in refusing to strike it out demands a reversal of this judgment, unless we are prepared to ignore and, indeed, virtually repeal the general rule of evidence in criminal cases which prohibits proof on the part of the prosecution of the commission of crimes other than that alleged in the indictment.
A conspicuous instance of the recent enforcement of this rule by this court is furnished by the case of People v. Molineux (168 N.Y. 264), in which its character and scope were fully discussed in the opinion of WERNER, J., who reviewed the numerous authorities by which it is supported in this and other states, and clearly classified the exceptions to it which have been recognized in the development of criminal procedure here and in other jurisdictions where the common law prevails. It is to be observed the defendant was indicted for false swearing and perjury; not for false registration or inducing others to commit that crime, and not for voting illegally. Yet the sole tendency of the testimony of McKenna and White, which has been quoted, was to establish the defendant's guilt of these other and different offenses. Upon no *Page 247 theory of the doctrine of relevancy does it seem to me that the fact that the defendant had voted when he was only six teen years of age can be deemed relevant to any of the issues which were litigated under the indictment and plea in this case. The defendant's declaration to that effect, assuming that he made it, merely tended to show that years ago he had committed another crime. To hold that evidence of this sort was not harmful to a man upon trial for a crime relating to the elective franchise would be, in my judgment, to ignore those influences which common experience shows to be powerfully operative upon the human mind. The only question which the jury were called upon to determine upon the trial was whether the defendant had sworn falsely in stating under oath that these men slept for two or three months at 413 Henry street, in the borough of Brooklyn, and the fact, assuming it to be such, that he had once voted illegally had no conceivable bearing on that question nor was the evidence properly receivable under any of the exceptions to the general rule recognized and so well stated in the Molineux case. It did not tend either to establish motive, intent, the absence of mistake or accident, a common scheme or plan embracing the commission of two or more related crimes or the identity of the defendant. It had no relation to the crime charged and its sole effect must have been to make the jury think that the defendant was a bad man whose antecedents indicated a willingness to commit any offense against the election laws.
The objectionable character of the testimony of these two witnesses to the effect that the defendant urged them to register and said he would take care of them if they did so is almost equally manifest. As has been pointed out, he was not on trial for the crime of false registration or inducing others falsely to register, and this evidence had no relevancy to the charge that he knowingly stated an untruth when he testified before the deputy superintendent of elections in reference to the sleeping place of these witnesses. I recognize to the fullest extent the wisdom of the statutory rule which prevails in this state that upon an appeal in criminal cases the court *Page 248 must give judgment without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the party. (Code Crim. Pro. § 542.) It seems clear to my mind, however, that the errors which I have discussed cannot justly be deemed technical and that they must have operated to the detriment of the defendant to such an extent as to deprive him of the fair trial to which he is entitled by law. Entertaining this view, I deem it my duty to vote for a reversal of the judgment. Upon the other question in the case I concur in the conclusions reached by Judge HISCOCK.
HAIGHT, VANN and WERNER, JJ., concur with HISCOCK J.; CULLEN, Ch. J., and CHASE, J., concur with WILLARD BARTLETT, J.
Judgment of conviction affirmed.