"The judgment is reversed, and the cause remanded with instructions to grant a new trial." § 171. Land Held Under Fraudulent Contract — Criminal Trespass. — In Howe v. State,1 it was held that a man was not liable to a criminal prosecution for destroying timber on lands of which he held possession by virtue of a fraudulent contract of purchase. "We think," said the court, "if any other ruling was to prevail, a man might be liable to prosecutions for acts committed whilst in the possession of lands under contracts declared fraudulent at the end of a long and doubtful lawsuit, in the nature of a chancery proceeding." 2 §§ 172, 173. Paper Title - Mistake of Law-Malicious Trespass. — In Windsor v. State, where a person had a paper title to property apparently valid on its face, and claimed in good faith to be the owner, and was in possession by himself or agent, a prosecution against him for a malicious trespass to the damage of a third person was not sustained, though such person in the end proved to have the better title. WORDEN, J. "Prosecution against Windsor for a malicious trespass committed by him, as was alleged, upon a dwelling-house belonging to the 'trustees, in trust for the Methodist Episcopal Church of the Indiana Annual Conference.' Trial by the court, conviction and judgment, a motion for a new trial having been overruled. It appears by the evidence, all of which is set out that at the time the trespass was committed, one, Lindsay Elkins, was in possession of the property by the direction of the defendant, but was about moving out, and had moved a part of his household furniture, and one, Sarah Jane Cone, was about moving into the house, or perhaps had moved in, by the authority of the trustees of the church. The defendant claimed the property as his own, and removed the doors, and otherwise injured the house, saying that he was going to move it away. In March, 1848, one Samuel Winegar and wife conveyed the land on which the house stood, to the trustees of the church, but at what time the deed was recorded does not appear. The land thus conveyed was a small piece estimated to contain three acres and a half out of a certain tract. Afterwards, in September, 1852, the said Winegar and wife conveyed the whole of said tract, without exception or reservation, to said Lindsay Elkins, and in December, 1854, Elkins and wife conveyed the above tract to the defendant. The defendant thus had a paper title to the premises, derived from the same source as that held by the trustees. It may have been a valid title, for it does not appear at what time the deed to the trustees was recorded, nor was there any evidence showing that either Elkins or the defendant had notice thereof before receiving their respective conveyances. The house appears to have been in the possession of the defendant, as Elkins was occupying it by his direction. The question arises whether, under these circumstances, the defendant can be held responsible criminally, for a trespass committed upon the house. We think not. In Howe v. State, it was decided that a man can not be held criminally responsible for destroying timber upon lands of which he holds the possession by virtue of a contract obtained by fraud. We do not think a criminal prosecution a proper mode of trying the title to real real estate. A person without color of title, could not defeat a criminal prosecution for malicious trespass upon lands, by setting up a title thereto in him self; but where he has a paper title, apparently valid on its face, and claims in good faith to be the owner, and is in possession, either by himself or others occupying by his direction, he can not be prosecuted criminally for a trespass committed thereon by himself, to the damage of a third person, although such third person in the end may prove to have the better title. The motion for a new trial should have prevailed." § 174. Officers - Mistake of Law by Magistrate.— An honest mistake by a magistrate of the law or his authority thereunder is not punishable by indictment.1 § 175. Officers - Oppression in Office — Extortion · Taking Illegal Fee.Therefore, a magistrate is not liable criminally for oppression in office, his conduct being the result of a mistake as to his powers, and not of corruption or malice. Nor for extortion,3 or taking an illegal fee. § 176. Officer - Issuing of Licenses. - Where a statute gives power to license commissioners to issue licenses for "taverns" when the applicant is a "person of good moral character," they are not indictable for unlawfully granting such a license if it appear that they acted in good faith, though erroneously. So when they issue it in a different form than that prescribed by statute." § 177. Officer — Holding Office Without Legal Authority. —A law punishing a person officiating in an office without authority does not apply where, in good faith, and during a controversy as to the title, the accused continues to act in an office to which he has been chosen." § 178. Officers-Dealing in Prohibited Securities. So to convict, under the California statute, to prevent certain officers dealing in certain securities, there must be the element of mala fides, -- § 179. Election Officer-Refusing to Register Voter. An officer who, through mistake of the law, refuses to register a voter, is not liable criminally. § 180. Election Judge - Rejecting Vote of Qualified Voter - Mistake.— So an election officer is not indictable for a mistake of judgment in rejecting a qualified voter.10 In Commonwealth v. Lee, the defendant was indicted for having, as a judge of election, knowingly rejected the vote of a qualified voter. BUTLER, P. J., charged the jury as follows: "Did the defendant knowingly reject the vote of this qualified citizen? What is meant by the language 'knowingly reject the vote of any qualified citizen?' Not, of course, that he knowingly reject the vote, but that he do so knowing it to be the vote of a 'qualified citizen.' In other words, rejecting a vote that he knows to be qual 1 King v. Barrat, 2 Doug. 466 (1780); King v. Jackson, 1 Term Rep. 375. State v. Johnson, 1 Brev. 155 (1802); State v. Porter, 3 Brev. 175 (1815); State v. Johnson, 2 Bay, 387 (1802); People v. Whaley, 6 Cow. 661 (1827); State v. Gardner, 2 Mo. 22 (1828); Jacobs v. Com., 2 Leigh, 709 (1830); People v. Coon, 15 Wend. 277 (1836); R. v. Hannam, 1 Yeates 71 (1791); White v. State, 56 Ga. 385 (1876); State v. Reeves, 15 Kas. 396 (1875). 8 Com. v. Shed, 1 Mass. 228 (1804). 4 Cutter v. State, 36 N. J. (L.) 125 (1873). 9 State v. Powers, 75 N. C. 281 (1876); State v. Smith, 18 N. H. 91 (1846). 10 Byrne v. State, 12 Wis. 579 (1860). ifled. The officer is not made responsible for a mistake of judgment. If he rejects the vote of one whom he believes not qualified, he is not liable to the penalties of the statute, although the individual may have been qualified and entitled to vote. It is for a willful disregard of his duty that he is made liable to punishment, and not for error of judgment. The statute in this respect did not create a new offence. The rule of the common law was the same. A public officer required to exercise judgment must do so conscientiously. Nothing more is required. To punish him for an honest mistake would be cruel. If the law were otherwise, no sensible man would be found willing to occupy such an office. Then, did the defendant, when he rejected Pavitt's vote, know him to be a 'qualified citizen?' If he did, he is guilty of the offense with which he is charged. If he did not, he is not guilty. And this inquiry whether the defendant knew Pavitt to be a 'qualified citizen' when he rejected his vote, is entirely for the jury. In starting out upon it, you must bear in mind, however, that the presumptions are in the defendant's favor. In the first instance the law presumes a public officer to have honestly performed his duty. When called upon to exercise discretion, judgment, he is to be regarded as having exercised it honestly. And those who allege the contrary — that he disregarded his duty, did not judge honestly, but acted corruptly- must show it. You thus perceive that in the case before us the burthen is upon the Commonwealth to show that the defendant, in rejecting the vote, was not governed by an honest judgment, did not act conscientiously, but willfully, intentionally, disregarded his duty. It is not necessary, however, that this shall be shown by direct or positive proof; it may be inferred from circumstances, if there be any out of which such an inference naturally arises. Then starting with this presumption in the defendant's favor, does the evidence show that he knew, when he rejected Pavitt's vote, that he was a 'qualified citizen?' In other words, that he decided corruptly, and not conscientiously? In passing upon this it is necessary to look at the character of the question the defendant was called upon to decide, and the manner in which he conducted himself in hearing and disposing of it. It was not whether a native of the district, accustomed to vote therein, should be permitted to vote on this occasion, about which men of ordinary intelligence would be likely to agree, but whether a foreigner, presenting a certificate of naturalization from the court of nisi prius, and especially a certificate of the date which Pavitt's bore, was a 'qualified citizen' within the meaning of the act of the Assembly. Had this been a plain question, about which there was no diversity of opinion in the public mind, and about which a man of ordinary intelligence could not well get astray, the mere circumstance that the defendant's decision was wrong, might give rise to an inference against the honesty of his act. The question, however, was not a plain one; there was a difference of opinion among intelligent men in regard to it, and the evidence shows that judges of the Supreme Court expressed conflicting judgments about it. Such was the question to be decided. Now, how did the defendant act or conduct himself in relation to it? Like one who desired to discharge his duty, or one who had made up his mind to disregard it? When the vote was challenged and referred to him, the evidence shows that he listened to arguments on both sides; heard the opinion of counsel that had been obtained by one of the inspectors; examined the paper promulgated as the opinion of Judge Read;' postponed the decision until a late hour of the day, with a view, as he expressed it, to obtaining further advice of counsel, and subsequently decided, after a re-hear ing, and upon a demand of Mr. Pavitt, or his friends, that the question should then be determined without further delay. "It is shown, however, that at an earlier hour in the day a vote was offered under somewhat similar circumstances, and upon objection being made and the questioned referred to the defendant, it was decided differently and the vote received. In this instance it appears that Mr. Evans, a well known citizen in the neighborhood, assured the defendant that he had been present in the court room and saw the individual naturalized. This should have made no difference. The certificate, until its genuineness was disproved, was sufficient evidence that Pavitt was in court, and his case duly passed upon. The officers could not go behind it and demand additional proof. Still it is for you to judge whether the defendant mistakingly supposed they could, and thus distinguished this case from Pavitt's. And in this connection you will remember the statement of Pavitt, made here, that he also produced to the defendant an individual (not known to the defendant, however) who offered to be qualified that he was present in the court and saw Pavitt naturalized; and you will then judge whether there was any distinction between Pavitt's case and the other; and what weight the circumstance here referred to should have, if there was not. It does not appear how the individual referred to voted, nor how Mr. Pavitt designed to vote. But there is some evidence that those who took an interest in having Pavitt vote had aided the other also. You will judge whether the decision in the one case was in favor of the political party with which the defendant is identified and the other against it. If it was, the fact referred to is important; otherwise it may not be. We have now called your attention to the principles of law, and the substance of the evidence upon which this case should be decided. You will take it, consider it impartially, and seek to do justice between the Commonwealth and the defendant, remembering that if the defendant is guilty has prostituted the public trust reposed in him to partisan or other corrupt purposes - the public is deeply interested in his conviction; while if he is innocent, or the evidence fails to show his guilt, the public is equally interested in his acquittal. Defendant was acquitted. In People v. Boas,1 it was held that the refusal, by an inspector of election, to receive the ballot of a voter known to be legally qualified to vote, does not constitute a felony under the registry and election law of New York City, of May 14, 1872, where it appears that such refusal was based wholly on the fact that another had previously voted in said person's name, and that the inspector, in refusing to receive said ballot, acted under the suggestion of the chief of the bureau of elections, to whom he applied for advice; the evidence tending to show that said inspector believed that he had not authority to receive complainant's ballot. To justify a conviction, it must appear that the inspector acted willfully; that is, with knowledge aforethought, and a wicked intent. The case was on appeal by defendant to the Supreme Court of New York from the judgment of the General Sessions. The defendant was indicted for a violation of the election and registry law of the city and county of New York, passed May 14, 1872, and its amendments. in having willfully excluded the vote of John F. Gerdes at the election of November, 1881, knowing that he was legally entitled to vote at such election. 11 N. Y. Crim. Rep. 132 (1883). He demanded a separate trial, and was tried and convicted in the Court of General Sessions of New York, November, 1882, before Recorder SMYTH and a jury, and sentenced to one year's imprisonment in the State prison. The indictment charged that Gerdes was entitled to vote at the election named, and that the appellant, well knowing that he was lawfully entitled to vote and a duly qualified voter at such election, did then and there feloniously and willfully exclude the vote of Gerdes so tendered, against the form of the statute in such case made and provided. The testimony in the case abundantly showed the performance of all the duties on the part of Gerdes, the voter, which required from the inspectors the reception of his ballot. But it appeared that some person had voted in his name prior to the presentation of his vote, and it was for that reason that the defendant, with the other inspectors, declined to received his vote. It appeared also that he made three applications to have his ballot received; that upon his first application, he was told by the inspectors, after having been informed of the incident already mentioned, viz.: that some person had voted in his name, that he might call back in an hour, and that they would send to headquarters for information; that he went back in an hour or so and asked whether they had received any answer, and they replied in the affirmative. For the defence it was shown that they did send to John J. O'Brien, who was the chief of the bureau of elections, in reference to the vote of Mr. Gerdes and asked his advice, and that he suggested that the best way to settle the matter was by an application by Mr. Gerdes for a mandamus; that there was plenty of time, and lawyers present to procure it. There is no doubt upon the evidence that the suggestion was made in the presence and hearing of Mr. Gerdes, for a Mr. Ball, a witness for the prosecution, stated that he heard Mr. O'Brien say something about getting a mandamus, and that Gerdes was present. When the prosecution rested, and again at the close of the case, counsel for defendant asked the court to advise the jury to acquit, on the ground that the evidence, did not, in law sustain the indictment. The motions were denied and exceptions taken; various exceptions were also taken to the recorder's charge to the jury, which are fully set forth in the opinion. William F. Kintzing and John E. Brodsky, for the prisoner, appellant. The appellant was acting in a judicial capacity; he is, therefore, not answerable for a mistake of law. The law makes the inspectors the judges of the qualifications of a voter, his right to vote, and on the exercise of their deliberative judgments upon that question they can not be held responsible.1 An action does not lie against individuals for acts erroneously done in a corporate capacity from which detriment happens to the plaintiff, at least not without proof of malice. An action on the case will not lie against inspectors of an election for refusing the vote of a person legally qualified to vote, without proving malice expressed or implied. The vote of John F. Gerdes was not willfully excluded by the board of inspectors, or by any of the inspectors. To do an act "willfully " in contemplation of law is to do it "maliciously, wickedly, criminally." The act must be the offspring of a mind criminally inclined, the 1 Bishop Stat. Crimes, sec. 806; Byrne v. State, 12 Wis. 519; State v. Daniels, 44 N. H. 383; State v. McDonald, 4 Harr. (Del.) 555; State v. Porter, 4 Id. 556. 2 Harman v. Tappenden, 1 East, 555. Jenkins v. Waldron, 11 Johns. 114; Geotchens v. Matthewson, 5 Lans. 214; People v. Coon. 15 Wend. 277; People v. Norton, 7 Barb. 477; King v. Barron, 3 Barn. & Ad. 432; 1 Russ. Cr., 136; 1 Chitty Cr. Law, 873; Wharton Am. Law, 1732, 2d ed. |