ments are dependent on circumstances and conditions not connected with the status of the candidates, for whom the vote is to be cast, they rarely affect the result of an election; the losses of one candidate being offset by those of the others. Not so with the impediments of the kind prescribed by this statute, which are directed solely at the character of the particular nominee for whom the vote is to be cast. The change from the old system does not diminish the size of the ballot, nor does it decrease the printing on it. It does not tend to make voting easier for the elector, or to avoid confusion on his part, but has the contrary effect. Surely the name of a candidate printed in the appropriate column is less confusing to the elector than a reference to some other column denoted only by its party name. While the Constitution does not guarantee that the elector shall be allowed to express his vote by a single mark, our position is that he is guaranteed the right to express his will by a single mark if other voters are given the right to express theirs by a single mark and there is no difficulty in according the right to all. It is said by the Supreme Court of Ohio in State v. Bode, 55 Ohio St. 224, 45 N. E. 195, 34 L. R. A. 498, 60 Am. St. Rep. 696, in upholding a law of this kind: "There is no discrimination against or in favor of any one; and, if any equality arises, it arises not from any inequality caused by the statute, but by reason of inequalities in the persons of the voters, and such inequalities are unavoidable. It is always much more difficult for some electors to cast their ballots than others. Distance, bad roads, means of transportation, bad health, and many other considerations may and do render it much more difficult for some men to cast their bal-ballot, and should direct the manner in lots than others. But these difficulties in here in the men themselves, and not in the law. * The inconvenience is only that experienced by every one who votes other than a straight ticket." This argument ignores the distinction between difficulties or inconveniences occurring by nature or accident and inconvenience created by statute. Inequality in the facilities afforded the electors in casting their votes may defeat the will of the people as thoroughly as restrictions which the courts would hold to operate as a disfranchisement of voters. In 1884 the control of the government of the whole country was transferred from one political party to another through the votes of this state by an average plurality of less than 1,150 votes. The vote for the electors of the successful party was over 560,000. Therefore, if an inconvenience in the method of casting his vote applicable to one candidate only had affected the vote of but one man in 470, the result would have been changed. If it were provided that voting on the blanket ballot should be done by either writing or pasting thereon under the names

candidates, it is not certain that this plan could be condemned as creating such obstacles to the exercise of the rights of the electors as to render the scheme unconstitutional; but if the plan went further, and provided that the candidates of the party polling the highest vote at the last election should be printed in one column and the electors allowed to vote therefor by a crossmark, while all the other candidates were required to be voted for by writing or pasting their names on the ballots, I think no one would hesitate to condemn the scheme as unconstitutional. Certainly under that plan there would be great difficulty in turning out the party in power. The condemnation of such a statute would proceed, at least primarily, not on the ground that it disfranchised the voters, but on account of the unequal opportunities to vote afforded the electors. That we are right in the position that equality of opportunity should be afforded electors is a fundamental principle of the constitutional law of this state, we need only refer to the first Constitution adopted by us. Previous to the Revolution elections in the colony were held viva voce. The Constitution of 1777 recited: "Whereas, an opinion has long prevailed among divers of the good people of this state, that voting at elections by ballot would tend more to preserve the liberty and equal freedom of the people than voting viva voce: to the end, therefore, that a fair experiment be made, which of these two methods of voting is to be preferred." And it directed that, after the termination of the war then existing between the colonies and Great Britain, the Legislature should enact that elections for senators and representatives should be by

which the same should be conducted. We therefore hold the statutory provisions challenged to be unconstitutional because they unnecessarily and substantially discriminate between electors in the opportunities and facilities afforded for voting for the candidates of their choice. If the discrimination were trivial, our decision would be different, but we know from the election litigations that have come before us that the discrimination here is of a very substantial character, and, where voting machines are used, the difficulty of voting a split ticket is still greater than where voting is by ballot.

At this point we may call attention to a later decision made by the Supreme Court of Michigan. In Dapper v. Smith, 138 Mich. 104, 101 N. W. 60, the validity of a provision which required that before the name of any candidate should be placed on the ballot such candidate should on oath declare bis purpose to become such was challenged, and held unconstitutional. It was said by the learned court: "The man who may be willing to consent to serve his state or his community in answer to the call to duty

is excluded, and the electorate has no oppor- not constitutionally prevent the nomination tunity to cast their votes for him. It is not of fusion or combination candidates. We an answer to this reasoning to say that the there said: "The liberty of the electors in electors may still vote for such a man by the exercise of the right vested in them by using 'pasters.' We cannot ignore the fact the Constitution to choose public officers on that parties have become an important and whatever principle or dictated by whatever well-recognized factor in government. Cer- motive they see fit, unless those motives contain it is that this law fully recognizes the travene common morality and are therefore potency of parties, and provides for party criminal, such as bribery, violence, intimidaaction as a step towards the choice of an tion or fraud, cannot be denied." The Legofficer at the election. The authority of the islature might make combinations effected Legislature to enact laws for the purpose by bribery or illegal considerations criminal of securing purity in elections does not in- and punish the actors. On proof that an clude the right to impose any conditions organization was effected and nominations which will destroy or seriously impede the made in pursuance of such criminal bargain, enjoyment of the elective franchise." As the courts might be authorized to strike such already said, we think it doubtful whether nominations from the ballot. But, because a form of official ballot by which all voting many coalitions between various bodies of should be done by pasters which are easily electors are corrupt and criminal, it cannot attached to the ballot could be held such an forbid coalition nominations or indirectly efobstacle as to destroy or defeat the enjoy- fect the same thing by rendering it more ment of the elective franchise. But the difficult to vote for a coalition nominee. One decision could very properly have proceeded great object of the present ballot was to on the ground that an unnecessary and sub- prevent bribery by rendering it difficult to stantial discrimination against any body of determine how any elector voted. There is, electors was unconstitutional. however, an opportunity for identification left. The elector may in the blank column write the name of some particular candidate, and thus identify his vote. Undoubtedly the voter may be punished for so doing on proof of the unlawful purpose for which he wrote the name of the particular person. Fortunately the evil does not seem at all common. But, even if it were prevalent, to correct the evil, the inviolable right of the elector to vote for whom he chose could not be invaded.

It is urged that there are inequalities under the old form of ballot, but, at least, the most of those inequalities are unavoidable. The party that polled at the last election the greatest number of votes is given the first column on the ballot. As long as the face of the ballot is a plane surface, which has always been the case with us, and there is a party column, some party must have the first place. Every candidate is not given the right to have his name printed on the official ballot. Such a provision would render an official ballot impossible. But not only are all parties or bodies polling 10,000 votes, which is less than 1 per cent. of the whole vote of the state, given the right to a separate column, but independent bodies, on the petition of but a small fraction of the electorate, have the same right. Thus the rights of the electors of all organizations which have the most remote or shadowy chance of electing their nominees are given equal rights with those of the great parties, while the inviolable right of every elector is secured by the blank column. But, if the character of the ballot necessarily involves discrimination against certain classes or bodies of electors, it is a reason that the statute should not increase the discrimination.

The method of voting on an official ballot which has prevailed with us now for a number of years probably has corrected evils that formerly were prevalent. But personally I fear that in some respects it has undermined public morality on the question of the right of the elector to vote for whom he will, provided it is dictated by no criminal consideration. Ever since the adoption of the present scheme there has been an attempt to provide a ballot in such form as to prevent the elector from voting in the way he wishes to vote. In this constant effort it must be conceded that persons desirous of so-called ballot reform, and not political partisans, have been the most active, though by the present legislation the latter seem to have been more successful. All labors by a citizen to induce his fellow citizens to It has been urged in justification of the change the principle on which they cast statutory provisions before us that independ- their votes, when he believes that principle ent bodies are often organized for the sake is injurious to the welfare of the community, of trading or combining with the regular are praiseworthy and patriotic. But, howparties or other organizations on corrupt ever gross may be the error of his fellows, considerations. It is not pretended, however, that the statute tends to prevent that evil, save in one way by making it more difficult to vote fusion or coalition tickets. The same argument was advanced in Matter of Callahan, 200 N. Y. 59, 62, 93 N. E. 262, 263,

he has no moral right to correct that error by making it difficult for them to exercise their constitutional rights.

The order of the Appellate Division should be reversed and that of the Special Term in substance affirmed, without costs. There

Special Term order, for which reason it must | commission of a felony constitutes the crime of be modified, and the order may be settled murder in the first degree. on two days' notice before the judge writing the opinion.

burglary with the murder.

tions are obviously important, for if they are well founded it must logically follow that the defendant's conviction cannot be upheld. It becomes our duty, therefore, to examine with critical minuteness the circumstances surrounding the homicide.

These conten- | ticed that his face was blackened over the eyebrows, under the eyes, on each side of the nose, and across the lips. He explained to Alice that he had been putting coal on the fire, and must have daubed some of the soot on his face. His next remark was: "We must go up and see if Miss Polly (the child) is safe; that is what we are here for." Together the four servants, Ohashi, Mary, Alice, and the defendant, went upstairs. The defendant went directly to the bed where the body of the deceased lay, and shouted: "This girl is dead, Alice; this girl is dead." Meanwhile Alice had looked into Polly's cot, and at first thought she was gone, but the defendant raised the bedclothing and disclos

were made to resuscitate the deceased with ammonia and whisky, and when these failed Alice directed the defendant to telephone for Dr. McKenzie. He called Dr. Knott, a veterinary, and when Alice remonstrated with him he told her to go to hell. The prosecution refers to this circumstance as indicating that the defendant was so confused that he did not know the difference between Dr. Knott, the veterinary, and Dr. McKenzie, the physician, but this point is greatly weakened, if not destroyed, by the testimony of the maid Mary, who said she suggested telephoning Dr. Knott, as well as Dr. McKenzie, for they wanted Mrs. Knott more than her husband. Having finished telephoning, the defendant said something about going back to his house, as he was not dressed, and wanted to wash the black from his face. Alice begged him to remain, and told him to wash in Mrs. Compton's room. Meanwhile Alice procured a pair of trousers, which she offered to the defendant, but he declined them, with the remark that he had trousers on.

At the time of the homicide, the Compton family consisted of the husband and his wife and a child about four years of age. They employed a number of servants, among whom were the defendant, who served as coachman, the deceased, who was nurse to the child, Ohashi, a Japanese butler, and two maids named Alice Dutcher and Mary Farrell. The defendant, a married man, lived in the coachman's house, which was some-ed her sleeping, safe and sound. Efforts thing more than 600 feet westerly of the Compton residence and on the opposite side of the highway. His wife had for some time been absent at a hospital for treatment, and he was temporarily the sole occupant of this dwelling. The deceased and the Compton child slept in an open-air apartment or porch at the westerly end of the Compton residence, and the other servants, Ohashi, Dutcher, and Farrell, occupied rooms on the same floor, but at the easterly end of the house, so that there was an intervening distance of about 40 feet between the two places. On the night of January 12, 1910, Mr. Compton and his wife were in the city of New York. In the early evening, the defendant took the maids, Alice and Mary, out for a drive, and returned at about 9:30. The two maids entered the house, had some refreshments with the deceased, and then retired. Ohashi, the butler, was then in his room. At about half past 3 o'clock the next morning, the maid Alice was awakened by sounds indicating that some one was trying to gain entrance to her room, and in the same instant the maid Mary screamed, and said she had been awakened by a flash of light, which caused her to bound out of bed into the middle of the room, where she found herself quite close to a man, who at once ran out of her door and down the stairs to the kitchen. The screams of the two maids, Alice and Mary, brought Ohashi, the butler, from his room across the hall, and together the three went downstairs. There they discovered that the silver chest had been rifled, and that Mrs. Compton's room was in such disorder as to indicate that a burglary had been committed. The maid Alice then called the defendant on a telephone connected with the stable, and from thence with the coachman's house by means of an, electric bell, which the defendant had been instructed to answer directly in person whenever it rang at night, or at any unusual hour. Contrary to these instructions, the defendant instead of answering the bell directly, first answered the telephone, which could only be done from the stable, and then made his appearance at the Compton house. As he came in, each of the

At 20 minutes past 4 o'clock in the morning, Dr. McKenzie arrived. He at once made such observations as would naturally suggest themselves to the experienced physician. He found the body of the deceased in the bed, slightly turned to the right side. The face was dark, discolored, distorted, and swollen, the eyes somewhat protruding and partially open, and the tongue swollen. There were bruises on the neck which might have been made by the grip of a human hand. Dr. McKenzie noticed dark, black dirt on her breast and some on her underwear. There were marks on both wrists, as if a cord had been wound twice around the wrists, and subsequently the strings, belonging to the pajamas worn by the deceased, were found beneath the bed; and there was testimony to the effect that the marks on the wrists might have been produced by these strings. Later in the day an autopsy was performed by Drs. Jacobus and McKenzie under the direction of Dr. Andrews, one of the coroners of Dutchess county. These three doctors were all agreed that the death

had gone westerly, in the direction of the icehouse, at an hour when Ohashi must have been in the Compton house; and the icehouse is the place where the Compton revolver was found by Duncan on the morning of January 13th. These were the circumstances which the jury might have found to have been established by the testimony, and we think that, standing alone, they would have justified the conclusion, beyond a reasonable doubt, that the rape and the murder were the work of the defendant.

from strangulation. The earlier observations the suspicions expressed by the officers. He made by Dr. McKenzie were supplemented was the person who suggested that Ohashi by others, indicating that the deceased had been the victim of a carnal assault. Black sooty spots, of the same character as those noticed on the breast of deceased, were found at the crotch of the underclothing worn by her. There were abrasions and black dirt on the vulva. In the vagina there was a fluid, which was withdrawn with a syringe and subjected to a microscopical examination. It was found to be human semen. There were also injuries to the lower limbs. Without going further into these nauseating physical details, it suffices to say that the facts disclosed by the autopsy and the trial warranted the conclusion that the deceased came to her death by strangulation at the hands of a man who was at the time engaged in the commission of a criminal assault upon her person. The next step in the logical development of this gruesome story will be to ascertain in what manner the defendant is connected with this foul deed.

But we must go farther. The case was submitted to the jury upon the theory that the homicide was committed by the defendant while engaged in the commission of the two distinct felonies of rape and burglary, and it is important to determine whether the evidence connects him with both. As regards the burglary, the evidence leads us through a sequence of circumstances quite as incriminating against the defendant and no less convincing to the impartial mind. There is in this branch of the case, moreover, a disclosure of facts which tend to unite the two distinct felonies of rape and burglary as parts of one general criminal scheme, and to identify the defendant as its author and perpetrator.

The defendant was a young man 22 years of age. His wife had for some time been absent from home. On the evening preceding the homicide, he had been out driving with the maids, Alice and Mary, and had been drinking at least enough to thoroughly fire his blood. There was evidence to the effect that in November he stated to a man Early on the morning of the homicide, the engaged in clipping a pony for Mr. Compton chief of police of the city of Poughkeepsie, that the deceased was a nice girl, and he with an undersheriff and several assistants, would have sexual intercourse with her if went to the Compton residence. They made he had to do it when the Comptons were in the journey in an automobile, which became New York; that about a week before the stalled in the deep snow about a quarter of tragedy he had made a remark to a man a mile from the Compton residence. They employed on the place, indicating that he were met by the defendant, who told them had lascivious designs on the person of the that they could not get through. Despite deceased; that a day or two later he made this information, the officers proceeded on a similar statement to another in language their way, accompanied by the defendant. too vulgar to print; and on the day of the After arriving at the house, the servants homicide he confided his lust to still another were interviewed, the defendant with the employé. Upon the body and clothing of the others, and thus the day wore on into the deceased were found black spots apparently afternoon. During the afternoon, the defendof the same color and substance as the ant asked Maroney, one of the Compton emmarks upon his face. When he returned ployés, who it was whom the officers suspectfrom the drive with Alice and Mary, he ask- ed, and Maroney replied that he did not ed the former what she was going to give know. Soon after this McCabe, the chief of him for the ride. When he, with Ohashi, police, went over to the defendant's house in Alice, and Mary, went upon the sleeping the pursuit of his investigations. Entering porch, he at once exclaimed: "This girl is the house and exploring two or three rooms, dead, Alice; this girl is dead"-although he he called, "Frank," and received no answer. had done no more than to place his hand Just then McCabe heard a sound, as of someupon her person. After the arrival of Dr. thing dripping on the floor, and he went into McKenzie, Alice and the defendant again a bedroom, drew a curtain, and saw a bloody went up to the place where the deceased lay, razor on the bed, and a pool of blood on the and the defendant then said the husband of floor. He looked under the bed, and there he the deceased must have done the deed. He saw the defendant with his throat cut. Mewas the only one of the Compton servants Cabe directed him to come out, and as he did who manifested any interest or anxiety as so he said: "I didn't do it, chief; I don't to the movements of the officers. This is want to go to jail; but I didn't kill Sarah.” indicated by his going out to meet them on A doctor was sent for, and the defendant the road, and suggesting that they could not was taken to the Vassar Hospital, where he get through with their automobile, and again recovered. After the defendant had been in his inquiries of other servants or em- sent to the hospital, McCabe searched the de