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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, S 2787.
1. Void or VOIDABLE ELECTIONS, S

2787.
2. NO MERGER IN PERJURY, $ 2788.
3. IGNORANCE OF

DISQUALIFICA-
TION, $ 2789.
II. INDICTMENT AGAINST VOTER,

$ 2790.
1. STATEMENT OF ELECTION, $ 2790.
2. When DISABILITY MUST BE SPEC-

IFIED, § 2791.
3. DOUBLE VOTING, $ 2792.

III. INDICTMENT AGAINST OFFI.

CERS, $ 2793.
1. JOINDER OF DEFENDANTS, $ 2793.
2. OFFENCE SINGLE, $ 2791.
3. AVERMENT OF FRAUD, $ 2795.
4. PARTICULAR OFFICE MUST BE

SPECIFIED, $ 2796.
5. AVERMENT OF APPOINTMENT, $

2797.

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 primâ 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.”g 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. f State v. Perkins, 42 Vt. 399. See c? See ante, $ 6, 83 a.

Hamilton v. People, 57 Barb. 625. d U. S. v. Anthony, ante, $ 82. g See ante, $ 83 a, 2742.

e McGuire v. State, 7 Humph. 54; h As disputing this view, see Com. State v. Hart, 6 Jones N. C. 389; v. Agler, Thacher's C. C. 412; BrightState v. Boyett, 10 Ired. 336 ; U. S. ly's Elect. Cases, 695; and Com. v. v. Anthony, ‘ante, $ 82. Under the Wallace, Thacher's C. C. 592; BrightRh. Is. statute, using the term fraud- ly's Elect. Cas. 703 A decision in ulently, honest belief is a defence. California, (People v. Harris, 29 Cal. State v. Macomber, 7 R. I. 349. The 678; Brightly's Elect. Cas. 703), apMass. Stat. requires that the defend- parently to the effect that ignorance ant must vote knowing himself not to of fact is a defence to an indictment be a qualified voter,” which knowledge, for double voting, may be explained, therefore, is essential to the offence. partly by peculiarities in the CaliforCom. v. Bradford, 9 Metc. 268. nia statute, and partly by the fact

66

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. I The same rule applies to unlawfully counselling a disqualified person to vote. 21 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 Bailey, 21 Me. 62; State v. Boying. at the time of the wrong done, and ton, 56 Me. 512; State v. Marshall, was consequently an unconscious tool 45 N. H. 281; State v. Hardy, 47 N. in the hands of others who were the H. 538. It is not even necessary to eal criminals.

aver who were the officers to be i This seems to have been held elected, if the election were general. requisite as late as R. v. Bowler, C. & State v. Minnick, 15 Iowa, 123. M. 559 ; 6 Jur. 287; and other cases i State v. Moore, 3 Dutcher, 105; of false swearing at elections; which, Brightly's Elect. Ca. 705; Pearce e. however, are not strictly in point, State, 1 Sneed, 637; People v. Wilthe element of perjury being distinct. ber, 4 Parker C. R. 19; Quinn r. See Cole on Crim. Inform. 2d part, 187. State, 35 Ind. 485. Ante, 288. j See ante, $ 2250.

See R. v. Hill, 2 Ld. Ray. 1415; R. k Tipton v. State, 27 Ind. 492; v. Jarvis, i Burr, 148; R. v. WheatCom. v. Shaw, 7 Metc. 52; S. C. Wh. man, 1 Doug. 331. Prec. 1019, where indictment is given; 11 State v. Tweed, 3 Dutcher, 111. Com. v. Silsbee, 9 Mass. 417; Com. m Com. v. Shaw, 7 Met. 52; cited v. Stockbridge, 11 Mass. 278; State v. 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. p At present it must be sufficient to notice 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."

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 (lowa), p Com. v. Gray, 2 Duvall, 373. 413. See State v. Boyington, 56 Me. s Com. v. Miller, 2 Parsons, 480; 512; State v. Lockbaum, 38 Conn. Brightly's Elect. Ca. 711 ; a ruling 400.

clearly sustained by the analogy of n See form and observations in Wh. pleading in the statutes of false prePrec. 1021.

tences. Ante, $ 2155, and see ante, o State v. Fitzpatrick, 4 R. I. 269. $ 430-435 a, 2514. p Ante, $ 2513 et seq.

1 Com. v. Rupp, 9 Watts, 114. q Com. v. Miller, 2 Pars. 280 ; Ante, $ 2514. Brightly's Elect. Ca. 711. - 57

897

VOL. II.

5. Averment of Defendant's Appointment.
$ 2797. It is sufficient, as has been seen, to aver that the de-
fendants (officers of elections) were duly charged with their par-
ticular offices. u

6. Scienter.
§ 2798. When guilty knowledge is necessary to constitute the
offence, then the scienter must be averred. v

IV. EVIDENCE.
§ 2799. The evidence is the same generally as in other cases of
misconduct in office..w

1. Proof of Officer's Appointment.
$ 2800. The principle is well established, as has been frequently
seen, that it is sufficient to prove that an alleged officer, in an in-
dictment against him for misconduct, was acting in the office
averred. x This rule applies to election officers. y

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