said, in substance: The indictment is found under section 5313 of the Revised Statutes of the United States, which reads as follows:
“Every officer of an election at which any representative or delegate in congress is voted for. whether such officer of election be appointed or created by or under any law or authority of the United States, or by or under any state, territorial district or municipal law or authority, who neglects or refuses to perform any duty, in regard to such election, required of him by any law of the United States, or of any state or territory thereof, or who violates any duty so imposed, or who knowingly does any acts thereby unauthorized with intent to affect any such election or the result thereof, or who fraudulently makes any false certificate of the result of such election in regard to such representative or delegate, or who withholds, conceals or destroys any certificate of record so required by law respecting the election of any such representative or delegate, or who neglects or refuses to make and return such certificate as required by law, or who aids, counsels, procures or advises any voter, person or officer to do any act, by this or any of such sections. made a crime, or attempts to do so. shall be punished as prescribed in section fifty-five hundred and ten.’’
The duties of inspectors of election, under the laws of the state of New York, so far as material to this case, are as follows:
“Section 26. Each box shall- be provided with a sufficient lock, and shall be locked before the opening of the poll, and the key 1 hereof delivered to one. of the inspectors to be appointed by the board, and shall not be opened during the election except in the manner and for the purposes hereinafter mentioned.” 1 Rev. St. (6th Ed.) 438.
“Section 37. Immediately after the final closing of the poll at all general elections hereafter to' be held in this state, in the several election districts, except in the city of New York, the ballot-boxes used at such elections shall be opened and the votes therein canvassed in the manner now provided by law, but as nearly as may be in the following order: 1. The box containing the ballots indorsed ‘Electors.’ 2. The box containing the ballots indorsed ’State. 3. The box containing the ballots indorsed ‘Congress.’ 4. The box containing the ballots indorsed ‘Senate.’ 5. The box containing the ballots indorsed ‘Assembly.’ 0. The box containing the ballots indorsed ‘Judiciary.’ If any other ballot boxes shall have been used at .any such election in pursuance of law. such other boxes shall be opened and the votes therein canvassed immediately after those hereinbefore speci-fled, in such order as the inspectors of elections at the several polls shall respectively determine.” 1 Rev. St. (6th Ed.) 439.
The prisoners' counsel refer to the Albany police law (chapter 77, Laws 1870; 1 Sess. Laws 1870, p. 208). upon this subject, as follows:
“Section 32. It shall be the duty of said board (police board) to detail on the day of any election in said city' of Albany, at least two patrolmen to each election poll, and to provide ballot boxes for use at any and all such elections, and to provide for the custody of said boxes at all times, except dur*238ing the taking, receiving and counting, of the votes. Said city of Albany shall pay the expenses of procuring and taking care of its boxes.
“Section 33. It shall be the duty of said board to prevent any booth or box, for the distribution of tickets at any election, from being erected or maintained within one hundred and fifty feet of any polling place within said city, and to see that the arrangements for voting are such as to prevent any avoidable crowding of voters at such polls, and that the challengers of both and all parties have fair and equal room, rights and privileges for the discharge of their duties at each poll, and that the canvassing of the votes be conducted in an orderly, fair, open and public manner, and no person or officer shall have power to interfere with said board in their discharge of the duties imposed on them by this section.”
To warrant a conviction under the first count of the indictment, it must appear that the prisoners made a fraudulent certificate of the result of the election in the district in question. The proof in this case does not authorize any such conclusion. With reference to the charge contained in the second count of the indictment, it should appear, in order to justify a conviction, that the inspectors of election intended to perpetrate some wrongful act, or omission of duty, or were guilty of some palpable neglect that would lead to the conclusion that a violation of law was designed, and of course this could be inferred in many instances, from their conduct. There is no doubt that a glaring fraud was perpetra i-ed by some person or persons, but it was so slyly and shrewdly done that it cannot be traced, and. while the prisoners may be the guilty persons, the testimony fails to show it. This canvass seems to have been conducted by the inspectors as carefully as canvasses usually are. and with as much re-card for the requirements of the forms of the law. The inspectors, in delivering the keys of the ballot-boxes to one of the policemen attending the polls, acted pursuant to the custom prevailing in the district for many years, and this was at least ap-proximal ely authorized by the police law of the city. There is no proof impeaching the character of the policemen, nor that any of them was an improper person to hold the keys. The canvassing of the "assembly” box was made by the general consent, or at least the acquiescence of all present, and its substitution in place, of the “state” box facili-fated the canvass of the “congressional” box. I have made it a rule to direct a verdict of not guilty where, in my opinion the evidence will not authorize the jury to find a verdict of guilty, or. if so found. I would set aside the verdict as contrary to evidence, I think this is a case of that class, and I theretore direct the jury to find a verdict of not guilty.