facts. But the disqualification does not attach until judgment has been rendered on a conviction. The question whether there is such guilt as to disqualify must be determined judicially, and not by means of a test oath administered by the election officers.3 945. Crimes by election officers. The election officers have certain duties to perform which they may not wilfully and knowingly disregard, but mistakes or unintentional errors will not make them criminally liable. But where the refusal to receive a vote is with wrongful animus and intent, the fact that it is based on a pretended view of the law which justifies it will not be a defense. They may not wilfully and fraudulently refuse to receive a ballot tendered them by a person qualified to vote; nor may they wilfully and knowingly receive illegal votes. If a question of fact is left to the officer to be decided in determining whether a voter is qualified, he will not be criminally responsible for receiving illegal votes by reason of an error of judgment. Officers may be guilty of a crime also in altering a ballot in such way as will destroy its effectiveness in any particularity. Duties as to registration are imposed upon election officers, and a violation of these duties is criminal.10 The election officers have also certain duties to perform with reference to entries upon poll-books, keeping a tally-list, etc., a violation of which may be criminal." A slight departure from directory provisions may not be criminal,12 but the intent of the officer will be immaterial if the plain provisions of the law are violated. There can be no punishment, however, with reference to an act not pertaining to the duty 13 1Thompson v. S., 26 Tex. Ap. 94. 2S. v. Houston, 103 N. C. 383. But it has been held that it may be made the duty of the election officer to pass on the question whether the voter is disqualified by reason of having made bets upon the result: Byrne v. S., 12 Wis. 519. 3 Burkett v. McCarty, 10 Bush, 758. 48. v. Bush, 47 Kan. 201; Byrne v. S., 12 Wis. 519; U. S. v. Dwyer, 56 Fed. R. 464; U. S. v. Kelsey, 42 Fed. R. 882. 'U. S. v. Foster, 6 Fed. R. 247. 6 S. v. Tuibell, 26 Ind. 264. 7 C. v. Gray, 2 Duv. 373; U. S. v. Doherty, 25 Fed. R. 28; U. S. v. Eagan, 30 Fed. R. 495. 8 Byrne v. S., 12 Wis. 519. 9 C. v. McGurty, 145 Mass. 257. 12 S. v. Bush, 47 Kan. 201. of the particular officer in question; thus, a clerk of election is not punishable for making a false certificate where the duty of making the certificate is not imposed on the clerk.1 § 946. Interference with elections.- Persons who are neither voters nor officers may be guilty of violating the election laws by tampering with the registration lists,2 or by hindering, preventing or intimidating voters from exercising their right. So where the voter is entitled to be present at the counting of the votes it may be criminal to interfere with such presence. So an attempt to interfere with the right of others in voting may be criminal. It may be criminal also to unlawfully seize and carry away ballot-boxes, or to destroy them." So intimidating judges of election, or interfering with officers who have duties to perform in connection with the election, may be criminal. A conspiracy to unlawfully influence the result of an election is, of course, criminal.10 And so it is criminal to procure another to fraudulently register or vote." There are statutes specially intended to preserve the peace and quiet on election day without regard to whether the acts prohibited have any direct influence upon the election; thus, it is in some states made criminal to carry weapons on that day,12 or to keep open any place for the sale of liquor, although such sale would be legal on other days.13 947. Improperly influencing voters.- The very purpose for which elections are held makes it improper that the action of the voters should be determined by any other influences than those which relate to the public welfare; therefore it is made criminal to treat electors for the purpose of obtaining their votes," or to bribe an elector by paying or promising to him or 1 U. S. v. Green, 33 Fed. R. 619. 2 U. S. v. Eagan, 30 Fed. R. 498; U. S. v. O'Connor, 31 Fed. R. 449; U. S. v. Mullaney, 32 Fed. R. 370. 3 U. S. v. Belvin, 46 Fed. R. 381; U. S. v. Guion, 37 Fed. R. 263; U. S. v. Goldman, 3 Woods, 187; U. S. v. Cahill, 3 McCrary, 200. 4 U. S. v. Badinelli, 37 Fed. R. 138. 5 S. v. Hardy, 47 N. H. 538; Randolph v. C., 6 Serg. & R. 398; C. v. Clark, 6 Grat. 675. 6 Connors v. U. S., 158 U. S. 408. parte Brown, 97 Cal. 83; C. v. Ryan, 157 Mass. 403. 8 Resp. v. Gibbs, 3 Yeates, 429. 9 U. S. v. Taylor, 57 Fed. R. 391; U. S. v. Wardell, 49 Fed. R. 914. 10 Moschell v. S., 53 N. J. 498. 11 U. S. v. Brown, 58 Fed. R. 558. 12 Cooper v. S., 26 Tex. Ap. 575. 13 See the chapter on intoxicating liquors, infra, ch. 63. 14 S. v. Darnal, 1 Humph. 290; S. v. Shaw, 8 Humph. 32; S. v. Pearis, 35 W. Va. 320. to any other person a sum of money, or to give or offer to give other pecuniary inducements for voting or forbearing to vote,1 or for an elector to receive such bribe; and it seems that this is an offense at common law. Trading votes is indictable if the agreement is carried out. While the law thus attempts to prevent unlawful influences it does not forbid the use of every honorable means of persuasion and reasoning which are intended calmly to influence the mind of the voter in the proper exercise of his privilege. There may, indeed, be improper inducements offered to a body of electors, such as a proposition on the part of the officer to return to the treasury, if elected, a part or all of the compensation authorized by law for the office. But it is not improper to offer to the electors as an inducement a general public advantage which will result from their voting in favor of a particular proposition; thus, where the question of the location of the county seat is submitted to vote, it is not improper to offer in behalf of one location the dedication of public grounds or the occupation of public buildings as an inducement for locating at that place. Betting on elections is made criminal by statutes as to gaming and betting, as well as by election laws. 948. Federal election laws.- Under the federal constitution the qualification of electors is left to be determined by the states, except in so far as the provisions of the fifteenth amendment forbidding discrimination on account of race, color, etc., constitute a limitation upon that power. The right to vote is not a privilege or immunity which by the fourteenth amendment cannot be impaired by state regulation.10 But as to elections at which a representative or delegate in congress is to 1S. v. Jackson, 73 Me. 91; S. v. Purdy, 36 Wis. 213; C. v. Stephen son, 3 Met. (Ky.) 226; Rex v. Plymp ton, 2 Ld. Raym. 1377; Rex v. Cripland, 11 Mod. 387. 2 Russell v. C., 3 Bush, 469. 3S. v. Ames, 64 Me. 386; S. v. Jackson, 73 Me. 91; Resp. v. Ray, 3 Yeates, 65; Rex v. Pitt, 3 Burr. 1335; Rex v. Plympton, 2 Ld. Raym. 1377. 'C. v. Callaghan, 2 Va. Cas. 460. Williams v. C., 91 Pa. St. 493. 6 Carrothers v. Russell, 53 Ia. 346; S. v. Church, 5 Oreg. 375. 7 Hall v. Marshall, 80 Ky. 552; Dishon v. Smith, 10 Ia. 212; Hawes v. Miller, 56 Ia. 395. 8 See infra, ch. 64. 9 U. S. v. Reese, 92 U. S. 214; U. S. v. Crosby, 1 Hughes, 448; U. S. v. Anthony, 11 Blatch. 200; Anthony v. Halderman. 7 Kan. 50. 10 Minor v. Happersett, 21 Wall. 162; U. S. v. Anthony, 11 Blatch. 200. 4 be chosen, congress has the power to legislate;1 and accordingly there are specific provisions in the federal statutes for the punishment of interference with such elections and the rights of the voters thereat, as specific crimes against the federal government. And under these statutory provisions it has been held criminal for an election officer to neglect or violate his duty as to the poll-books, tally-sheets, etc.; or to forge or tamper with the returns; or for any one to unlawfully secure the registration of names of persons not entitled to vote, or to interfere with the exercise of their right on the part of those entitled to vote. In pursuance of this authority on the part of congress to regulate elections for representatives and delegates in congress, congress has, instead of adopting a uniform system of election laws applicable to such elections, made use of the state laws and provided for the punishment by the federal government of the violation of such state regulations; and it has been held constitutional for the federal government to thus punish state election officers for the violation of the provisions of state statutes where a congressman is to be elected at the same election as state officers; but this federal regulation is only applicable to state elections at which a congressman is thus to be chosen.R 1 U. S. Const., art. 1, § 4. 2 R. S., § 5511-5515. Ex parte Coy, 127 U. S. 731; U. S. v. Eagan, 30 Fed. R. 495. But it must be charged that the act or omission was knowingly done on the part of the officer: U. S. v. Kelsey, 42 Fed. R. 882. 4 Van Buren v. U. S., 36 Fed. R. 77. 5 U. S. v. O'Connor, 31 Fed. R. 449. 6 U. S. v. Beloni, 46 Fed. R. 381; U. S. v. Guion, 37 Fed. R. 263. The federal statutes do not cover the case of attempt except where the attempt is to vote in the name of another: U. S. v. Trainor, 36 Fed. R. 176; but they do cover advising a violation of the statutes, and said advising is not an accessorial but a substantive offense: U. S. v. Carroll, 32 Fed. R. 775. Other cases of prosecution under the federal statutes are 7 cited in the preceding sections of this chapter. 7 Ex parte Seebold, 100 U. S. 317; Ex parte Clark, 100 U. S. 399; U. S. v. Given, 17 Int. Rev. Rec. 189 and 195, 25 Fed. Cas. 1324 and 1328. 8 U. S. v. Gitma, 3 Hughes, 549; U. S. v. Nicholson, 3 Wood, 215; Mason v. S., 55 Ark. 529. A governor of a state in certifying the result of an election for a member of congress under a state statute is not an election officer punishable under the federal statutes: U. S. v. Clayton, 2 Dill. 219. The state courts have jurisdiction of a prosecution for illegal voting for electors of president and vice-president and may punish therefor without federal interference even though a congressman was voted for at the same election: In re Green, 134 U. S. 377. 5 § 949. Intent. The criminal intent is essential.1 Usually violations of such laws are punishable only as they involve a corrupt intent, and an honest belief that the act is lawful, though due to a mistake of fact, for instance, as to whether the voter is a minor, will prevent illegal voting being punishable. So under a charge of voting twice it may be shown that the accused was so intoxicated that he had no knowledge of what he was doing. But the fact of a previous conviction of a felony constituting a disqualification must be presumed to be known to the person disqualified, and he cannot claim to have acted under a mistake of fact in illegally voting. Nor will it be any defense that accused took legal advice as to his right to vote when that right depends simply upon a fact; and the fact of having taken the advice of others not learned in the law will constitute no defense whatever. But if the facts as to qualification are submitted to the judges of election and the voter is allowed to cast his ballot, he cannot be convicted for doing so although not entitled to vote. In general, a mistake of law, such as the belief on the part of a woman that under the constitution of the United States she is entitled to vote, will not constitute a defense. And indeed, the criminal intent may be presumed in some cases from the nature of the act where it is a plain violation of the law.10 An election officer who acts bona fide, though in a mistaken exercise of his judgment, is not punishable." § 950. Indictment. Sometimes it is said that an indictment in the language of the statute is sufficient, but it may be necessary to allege the particular circumstances in order to advise defendant of the charge against him.12 To charge simply 1S. v. Tuibell, 26 Ind. 264; Austin v. S., 71 Ga. 595; U. S. v. Wright, 16 Fed. R. 112. Intent is essential though not made so by the statute: C. v. Shaw, 7 Met. 52. The necessity of intent appears also with reference to specific forms of violation in the preceding sections of this chapter. Gordon v. S., 52 Ala. 308; Carter v. S., 55 Ala. 181. 'P. v. Harris, 29 Cal. 678. 5 Gandy v. S., 82 Ala. 61. 6S. v. Sheeley, 15 Ia. 404; S. v. Hart, 6 Jones, 389; S. v. Boyett, 10 Ired. 336. 7S. v. Pearson, 97 N. C. 434. 8 S. v. Macomber, 7 R. I. 349; McGuire v. S., 7 Humph. 54. 9 U. S. v. Anthony, 11 Blatch. 200. 12 P. v. Neil, 91 Cal. 465; U. S. v. Hirschfield, 13 Blatch. 330; U. S. v. 4 Thompson v. S., 26 Tex. Ap. 94; Wardell, 49 Fed. R. 914. Gandy v. S., 86 Ala. 20. |