postmaster, in the words of the statute, without showing where it was mailed, or on what route it was conveyed. r But it must be averred that the letter was intended to be conveyed by post. 8 To convict a person of stealing a letter, &c., who is employed in the department, such employment must be distinctly alleged and proved. t It is enough, however, to aver that the defendant was a person employed in one of the departments of the post-office establishment of the United States. u The description of the termini, between which the letter was intended to be sent by post, cannot be rejected as surplusage, but must be proved as laid. u It is necessary to lay the property stolen on some person other than the prisoner. w III. RECEIVING EMBEZZLED MONEY, ETC. § 2785. It is an offence under the post-office law of 1825, 45th section, to receive or buy any article that has been stolen from the mail, knowing it to have been so stolen. x To show that the article has been stolen, the conviction of the individuals who stole it is sufficient, if the article be identified. y When an individual, under such circumstances, is found in possession of stolen property, and fails to show how he acquired it, or gives inconsistent or contradictory accounts how he came by it, the presumption of guilt is strengthened. z CHAPTER IV. ABUSE OF ELECTIVE FRANCHISE. § 2786. IN a country based on popular elections, abuse, by force or fraud, of the elective franchise, is an offence of the nature of treason; and is to be punished on the same principle as by the English common law and the Roman common law are forcible or fraudulent usurpations of executive sovereignty. The common law offence, however, in the United States, has given way to statutes by which specific penalties have been imposed for particular misconduct of this class; statutes which are multitudinous and diverse, and which have received adjudications, which, from this very diversity of subject matter, it is difficult to classify. Premising that most of the questions that thus arise have been already incidentally noticed, the points which meet us most frequently may be thus divided: I. ILLEGAL VOTING, § 2787. 1. VOID OR VOIDABLE ELECTIONS, § 2. NO MERGER IN PERJURY, § 2788. TION, § 2789. II. INDICTMENT AGAINST VOTER, 1. STATEMENT OF ELECTION, § 2790. 3. DOUBLE VOTING, § 2792. III. INDICTMENT AGAINST OFFI- 1. JOINDER OF DEFENDANTS, § 2793. 3. AVERMENT OF FRAUD, § 2795. 5. AVERMENT OF APPOINTMENT, § 6. SCIENTER, § 2798. IV. EVIDENCE, § 2799. V. BRIBERY. (See post, § 2813.) I. ILLEGAL VOTING. 1. Void or Voidable Elections. § 2787. Illegal voting at a void election would be indictable as an attempt, if such election could in any way be so used as to be prima facie effective. a Clearly mere curable irregularities would not purge the offence of indictability. b a See ante, § 2694-7, 2710. v. Cohoon, 12 Ired. 175. See ante, § b State v. Bailey, 21 Me. 62; State 2217, 2232, 2232 a. 2. No Merger in Perjury. § 2788. The voting, and the swearing to the voter's qualifications, are distinct offences; and the one cannot be held to merge in the other. c 3. Ignorance of Disqualification. § 2789. For an unqualified person to vote is a misdemeanor at common law. He has no right to usurp an office to which he is not entitled, and conscientious belief that he is entitled goes to sentence and not to verdict. When made a misdemeanor by statute, irrespective of intent, it is no defence that the defendant believed himself entitled to vote. d And even where the statute requires the voting to be "knowingly and fraudulently," it is no defence that the defendant acted under advice of others, if such advice was in point of law wrong. e So, no matter how honest may be the belief of a person that he is entitled to vote twice, at two distinct places, he is rightfully convicted, if he so vote, under a statute which makes the naked act indictable, irrespective of intent. f For, by statute, as well as by common law, the electoral franchise, as has just been said, is an office; and a person usurping such office, no matter how honestly, is liable to penal prosecution, unless the statute expressly excepts cases of "honest intent." If "honest intent" and "mistake of law" will excuse a person illegally voting for President of the United States, "honest intent" and "ignorance of the law" will excuse a person usurping the office of President of the United States. Usurpation, therefore, would cease to be penal when it became fanatical. h c Steinwehr v. State, 5 Sneed, 586. c1 See ante, § 6, 83 a. d U. S. v. Anthony, ante, § 82. e McGuire v. State, 7 Humph. 54; State v. Hart, 6 Jones N. C. 389; State v. Boyett, 10 Ired. 336; U. S. v. Anthony, *ante, § 82. Under the Rh. Is. statute, using the term fraudulently, honest belief is a defence. State v. Macomber, 7 R. I. 349. The Mass. Stat. requires that the defendant must vote "knowing himself not to be a qualified voter," which knowledge, therefore, is essential to the offence. Com. v. Bradford, 9 Metc. 268. f State v. Perkins, 42 Vt. 399. See Hamilton v. People, 57 Barb. 625. g See ante, § 83 a, 2742. h As disputing this view, see Com. v. Agler, Thacher's C. C. 412; Brightly's Elect. Cases, 695; and Com. v. Wallace, Thacher's C. C. 592; Brightly's Elect. Cas. 703 A decision in California, (People v. Harris, 29 Cal. 678; Brightly's Elect. Cas. 703), apparently to the effect that ignorance of fact is a defence to an indictment for double voting, may be explained, partly by peculiarities in the California statute, and partly by the fact II. INDICTMENT AGAINST VOTER. 1. Statement of Election. § 2790. Following the analogies of perjury, we can well understand why the old English precedents, in case of illegality at elections, should set out all the preliminary procedure under which the election was held. i But as in perjury, the practice in such case, except in one or two jurisdictions, has been to dispense with such great particularity, j so we may apply the rulings to this effect to offences at elections, especially when such are held under general laws. To this point, indeed, there is direct authority, showing that it is enough to allege that the offence was committed at a general election lawfully held according to law, stating when and where the election was held and what it was for. k 2. When Indictment must specify Disability. § 2791. When the indictment is for voting when disqualified, under a statute which enumerates certain causes of disqualification, the defendant should be specially averred to be within such disqualifying clauses. The same rule applies to unlawfully counselling a disqualified person to vote. 11 But at common law, and under statutes which do not discriminate between disqualifications, it is enough to aver generally that the defendant was disqualified and incompetent. m that the defendant was stupidly drunk at the time of the wrong done, and was consequently an unconscious tool in the hands of others who were the eal criminals. i This seems to have been held requisite as late as R. v. Bowler, C. & M. 559; 6 Jur. 287; and other cases of false swearing at elections; which, however, are not strictly in point, the element of perjury being distinct. See Cole on Crim. Inform. 2d part, 187. j See ante, § 2250. k Tipton v. State, 27 Ind. 492; Com. v. Shaw, 7 Metc. 52; S. C. Wh. Prec. 1019, where indictment is given; Com. . Silsbee, 9 Mass. 417; Com. v. Stockbridge, 11 Mass. 278; State v. Bailey, 21 Me. 62; State v. Boyington, 56 Me. 512; State v. Marshall, 45 N. H. 281; State v. Hardy, 47 N. H. 538. It is not even necessary to aver who were the officers to be elected, if the election were general. State v. Minnick, 15 Iowa, 123. 1 State v. Moore, 3 Dutcher, 105; Brightly's Elect. Ca. 705; Pearce v. State, 1 Sneed, 637; People v. Wilber, 4 Parker C. R. 19; Quinn v. State, 35 Ind. 485. Ante, § 288. See R. v. Hill, 2 Ld. Ray. 1415; R. v. Jarvis, 1 Burr, 148; R. v. Wheatman, 1 Doug. 331. 11 State v. Tweed, 3 Dutcher, 111. m Com. v. Shaw, 7 Met. 52; cited and form given in Wh. Prec. 1019; 3. Double Voting. § 2792. Where a statute simply makes casting two votes indictable, it is sufficient to allege the casting of two votes. n But where voting in two places is made indictable, the indictment must designate the places. o III. INDICTMENT AGAINST OFFICERS. The general responsibility of officers is heretofore independently considered. At present it must be sufficient to notice p the following points: 1. Joinder of Defendants. § 2793. As has been already seen, in indictments against officers of elections, defendants occupying different offices, charged with different duties, cannot be joined. q 2. Indictment Single. § 2794. A single officer may be charged with an unlawful act in receiving a disqualified vote, without stating how the defendant's coöfficers acted. r 3. Averment of Fraud. § 2795. Special acts of fraud, when officers of elections are indicted for fraud in discharge of their duties, must be shown. It is not enough to aver a mere conclusion of law, that the defendants" did commit wilful fraud in the discharge of their duties." 8 4. Particular Office and Duty of Defendant must be specified. § 2796. This results from the necessities of the case. Otherwise the defendant would have no notice of the particular duties he is charged with violating. t State v. Douglass, 7 Clarke (Iowa), 413. See State v. Boyington, 56 Me. 512; State v. Lockbaum, 38 Conn. 400. r Com. v. Gray, 2 Duvall, 373. s Com. v. Miller, 2 Parsons, 480; Brightly's Elect. Ca. 711; a ruling clearly sustained by the analogy of n See form and observations in Wh. pleading in the statutes of false prePrec. 1021. o State v. Fitzpatrick, 4 R. I. 269. p Ante, § 2513 et seq. tences. Ante, § 2155, and see ante, § 430-435 a, 2514. t Com. v. Rupp, 9 Watts, 114. q Com. v. Miller, 2 Pars. 280; Ante, § 2514. Brightly's Elect. Ca. 711. VOL. II.57 897 |