trial, is to strike the word “knowingly” out of the statute—­and to condemn the defendant on the legal fiction that she was acting in bad faith, it being all the while conceded that she was in fact acting in good faith.  I admit that there are precedents to sustain such ruling, but they cannot be reconciled with the fundamental principles of criminal law, nor with the most ordinary rules of justice.  Such a ruling cannot but shock the moral sense of all right-minded, unprejudiced men.

No doubt the assumption by the defendant of a belief of her right to vote might be made use of by her as a mere cover to secure the privilege of giving a known illegal vote, and of course that false assumption would constitute no defence to the charge of illegal voting.  If the defendant had dressed herself in male attire, and had voted as John Anthony, instead of Susan, she would not be able to protect herself against a charge of voting with a knowledge that she had no right to vote, by asserting her belief that she had a right to vote as a woman.  The artifice would no doubt effectually overthrow the assertion of good faith.  No such question, however, is made here.  The decision of which I complain concedes that the defendant voted in good faith, in the most implicit belief that she had a right to vote, and condemns her on the strength of the legal fiction, conceded to be in fact a mere fiction, that she knew the contrary.

But if the facts admitted of a doubt of the defendant’s good faith, that was a question for the jury, and it was clear error for the court to assume the decision of it.

Again.  The denial of the right to poll the jury was most clearly an error.  Under the provisions of the constitution which have been cited, the defendant could only be convicted on the verdict of a jury.  The case of Cancemi shows that such jury must consist of twelve men; and it will not be claimed that anything less than the unanimous voice of the jury can be received as their verdict.  How then could the defendant be lawfully deprived of the right to ask every juror if the verdict had his assent?  I believe this is a right which was never before denied to a party against whom a verdict was rendered in any case, either civil or criminal.  The following cases show, and many others might be cited to the same effect, that the right to poll the jury is an absolute right in all cases, civil and criminal. (The People vs.  Perkins, 1 Wend. 91.  Jackson vs.  Hawks, 2 Wend. 619.  Fox vs.  Smith. 3 Cowen, 23.)

The ground on which the right of the defendant to vote has been denied, is, as I understand the decision of the court, “that the rights of the citizens of the state as such were not under consideration in the fourteenth amendment; that they stand as they did before that amendment....  The right of voting or the privilege of voting is a right or privilege arising under the constitution of the state, and not of the United States.  If the right belongs to any particular person, it is because such person is entitled to it as a citizen of the state where he offers to exercise it, and not because of citizenship of the United States....  The regulation of the suffrage is conceded to the states as a state right.”