APPEAL from the Circuit Court of Cook County; the Hon. HARRY
G. COMERFORD, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 28, 1977.
The defendant, Morris Ellis, was charged with the following violations of the Illinois Election Code: (1) failure to comply with order of election authority (Ill. Rev. Stat. 1973, ch. 46, par. 29-11); (2) disregard of Election Code (Ill. Rev. Stat. 1973, ch. 46, par. 29-12), by soliciting votes within a polling place; and (3) disregard of Election Code (Ill. Rev. Stat. 1973, ch. 46, par. 29-12), by giving instructions to a voter in a voting machine. On conclusion of a bench trial, the court directed a verdict of not guilty as to the third charge, and found the defendant guilty of the first and second charges and assessed a fine of $100 on each of those two charges. Defendant appeals, contending that he was not proved guilty beyond a reasonable doubt of the offenses with which he was charged.
On March 19, 1974, the defendant was serving as a poll watcher during a primary election in the polling place located at 919 West Montrose Avenue. Also present at that location were Patricia Fust, a Republican judge of election, and Marion Clough, a Democratic judge of election.
Patricia Fust testified that at 9 a.m. on the above date, a man and a woman entered the polling place, each requesting a Republican ballot. She could not remember the names of the two voters. According to Ms. Fust, the defendant then told the voters, whom he apparently knew, that they were supposed to vote Democratic. Ms. Fust then asked the defendant to leave the voters alone. Marion Clough's testimony was substantially the same. She added that the man's name was Bunting and the woman's name was Marks.
Patricia Fust testified further that at approximately 10:45 a.m., a woman voter, who had declared Democratic, stepped into a voting machine and then requested assistance. Ms. Fust told Marion Clough to accompany her into the booth with the woman. Ms. Fust then proceeded to instruct the voter. The defendant then stepped into the booth and informed Ms. Fust that she was improperly instructing the voter.
Marion Clough testified as to the above incident that the woman wished to vote for a certain candidate; however, she did not know how to vote. When Ms. Fust was trying to show the voter how to vote for the candidate, the defendant interrupted, objecting to the way the woman was being instructed.
Patricia Fust testified to a final incident. A voter entered and requested a Republican ballot. The defendant insisted that the voter really wanted to vote for a Democratic candidate. Ms. Fust stated that she then asked the voter what party he chose. The voter replied, "Republican." The defendant was talking to the man simultaneously. The voter then told Ms. Fust that he wished to vote for a certain candidate. She then had the designation on the binder changed from an "R" to a "D."
Marion Clough stated, as to the above occurrence, that the defendant had attempted to direct the unidentified voter, and further testified that defendant had passed out cards in the polling place. She admitted that she did not know what name was on the cards because she was not paying attention at the time.
Neither Patricia Fust nor Marion Clough reported any of the alleged incidents to the policeman on duty at the polling place; nor did they or anyone else present in the polling place call the Board of Elections Commission or any other election authority. Ms. Fust did call James Nolan, the Republican Committeeman for the 46th Ward, the office of the State's Attorney for Cook County, and the police. After an assistant State's Attorney arrived in response to her call, in an effort of conciliation, he requested that Ms. Fust accept the defendant's apology and that the matter be forgotten. She refused to do so.
Frank Alschuler testified that he was poll watcher at the polling place on March 19, 1974. He alleged that he heard the defendant talk to a voter. Thereafter, the witness observed the voter, Howard Bunting, cross out the "X" he had written in the Republican square and place an "X" in the square designated as Democratic on the application for ballot form. The witness was then shown the application for ballot signed by Howard Bunting. He admitted that the application exhibited no strikes or erasures. The application indicated that Mr. Bunting had received a Republican ballot.
Alschuler further testified that he also observed the defendant pass out campaign literature inside the polling place; he saw the defendant do this on two occasions. According to the witness, the title of the literature was "Bullet for Marovitz."
Marjorie Alschuler stated that on the day in question, both she and her husband acted as poll watchers for candidate Steven Klein. She said that she had campaign literature on her person inside the polling place, and that while she was inside her husband was outside campaigning. She testified that after a voter had requested a Republican ballot, the defendant stated that the voter really wished a Democratic ballot. Although she admitted that she was not listening closely at the time, the witness maintained that the defendant said words to the effect that the candidate of the voter's choice was on the Democratic ballot. According to this witness, the judges, not the voter, then changed the markings on the ballot application. The witness could not remember the name of the voter involved, but believed that it began with a "P." In an attempt to refresh her recollection, Mrs. Alschuler was allowed, over objection, to examine the 173 applications for ballot which had been introduced into evidence. She finally identified the last name of the voter as being Pallaci, whose application for ballot had a cross deleted from the Republican square and a cross placed in the Democratic square. She could not recall the name of the judge who had changed the application or spoke to Pallaci. She admitted that at the time of the alleged incident, she could not read what was written on the application from where she was sitting. However, she testified that the application was not in the same condition as it had been at the polling place. She did not know whether or not the application had been the only one changed during that day.
Howard Bunting testified that he had entered the polling place on March 19, 1974, before 9 a.m. The defendant told some woman to give Mr. Bunting a Democratic ballot. Bunting said he would take a Republican ballot. The witness stated that ...