fraudulent voting is not sufficient.1 As a general proposition, therefore, it may be stated that the facts should be alleged,' and for failure to do so the indictment is vulnerable to demurrer; but in various cases indictments which state little more than the general charge in the language of the statute have been upheld. In charging bribery of an elector the indictment should state that an election of the qualified voters of a particular ward or precinct, describing it, was held to select certain named officers, and that the accused attempted to influence a certain named and qualified voter in such ward or precinct to give his vote thereat by offering and paying him a certain sum of money or other valuable consideration, as the case may be. In other cases the election should be named," and the purpose for which it was held; but it is not necessary 1 P. v. McKenna, 81 Cal. 158. 2 Randolph v. C., 6 Serg. & R. 398; C. v. Clark, 6 Grat. 675; U. S. v. McCabe, 58 Fed. R. 557; U. S. v. Brown, 58 Fed. R. 558; U. S. v. Wardell, 49 Fed. R. 914; S. v. Moore, 27 N. J. 105; P. v. Standish, 6 Park. Cr. 111; S. v. Tweed, 27 N. J. 111; Gallagher v. S., 10 Tex. Ap. 469; Pearce v. S., 1 Sneed, 63; Quinn v. S., 35 Ind. 485. Contra, S. v. Douglass, 7 Ia. 413; C. v. Shaw, 7 Met. 52; S. v. Marshall, 45 N. H. 281; U. S. v. Quinn, 18 Blatch. 48. 3 S. v. Bruce, 5 Oreg. 68. 4 Thus, it has been held sufficient to charge a judge with altering a ballot: C. v. McGurty, 145 Mass. 257; or to charge that defendant was a minor and voted: Gordon v. S., 52 Ala. 308. And see S. v. Welch, 21 Minn. 22. But it is not enough to charge defendant with being an alien and having voted: U. S. v. Hirschfield, 13 Blatch. 330; nor to charge the preventing of another from voting without setting out the facts: S. v. Hardy, 47 N. H. 538. In charging defendant with advising fraudulent registration it is not necessary to set out the particular words of advice used: U. S. v. Brown, 58 Fed. R. 558. So in charging a con spiracy to prevent voting it is not 5 S. v. Jackson, 73 Me. 91; C. v. 6 Lane v. S., 39 Ohio St. 312; U. S. 7 Tipton v. S., 27 Ind. 492; Bellair v. S., 6 Blackf. 104; Carter v. S., 55 Ala. 181. E to go into great particularity in this respect, and it is sufficient to charge that the election was duly holden,' mentioning the candidates, the specific authority for the election, and that the officers were the proper and legal ones. The place of holding the election should be charged. In charging false swearing in connection with an election it must appear that the act was done where an oath was required by law, and to a person authorized to take a statement under oath. But it has been held that a charge of false swearing as to elections cannot be sustained where there is no charge of having illegally voted.' The allegation of intent is an essential one, but this is properly charged by the statement that the act was done wilfully 10 or illegally." In charging a person with voting in the name of another it is necessary to allege that he knowingly so voted."2 Several acts which are made by the indictment to constitute the offense may be charged jointly in one count.13 Officers who have distinct and several duties to perform cannot be jointly indicted.14 § 951. Evidence. The burden of proof to show the violation of the law is, of course, on the prosecution; but presumptions may arise from the evidence which the defendant must overcome; for instance, where it is shown that defendant was 1S. v. Marshall, 45 N. H. 281; S. v. Boyington, 56 Me. 512. But it is not enough to state that it was a certain corporation election at a place and date stated: Lane v. S., 39 Ohio St. 312. 2S. v. Bailey, 21 Me. 62; Gallagher v. S., 10 Tex. Ap. 469; S. v. Minnick, 15 Ia. 123; Wilson v. S., 52 Ala. 299. 'Gallagher v. S., 10 Tex. Ap. 469. 4S. v. Douglass, 7 Ia. 413. Where certain persons were alleged to have been officers it is sufficient to charge that they were legal officers: S. v. Randles, 7 Humph. 9. Where illegality is charged as to one officer it is not necessary to make allegations as to the acts of the other officers: C. v. Gray, 2 Duv. 373. 5 U. S. v. McCabe, 58 Fed. R. 557; U. S. v. Brown, 58 Fed. R. 558; S. v. Fitzpatrick, 4 R. I. 269. And see U. S. v. Doherty, 25 Fed. R. 28; U. S. v. Johnson, 2 Sawy. 482. 6 Dennis v. S., 17 Fla. 389. 7U. S. v. Jacques, 55 Fed. R. 53. 8 Humphreys v. S., 17 Fla. 381. 9 U. S. v. Taylor, 57 Fed. R. 391; C. v. Shaw, 7 Met. 52. And see S. v. Bush, 45 Kan. 138. And see supra, 949. 10 U. S. v. Dwyer, 56 Fed. R. 464; or wilfully and unlawfully: S. v. Moore, 27 N. J. 105. 11 S. v. Haynorth, 3 Sneed, 64. 12 U. S. v. Watkinds, 6 Fed. R. 152. 13 Connors v. U. S., 158 U. S. 408. Placing a number of forged names on the registration list at the same time and place constitutes but one offense: U. S. v. Eagan, 30 Fed. R. 498. 14 U. S. v. Davis, 33 Fed. R. 621. a resident of another state until within a recent period.1 In proving the fact of registration or voting, the records of the proceedings at the registration office or at the polls are the best evidence.2 Under an indictment for altering a ballot, the ballot cast, which has been preserved under order of court, is the best evidence; but where the statute directs the officer to preserve the ballots in packages unopened for a certain time and then destroy them, if there is no contest, the court has no authority in a criminal prosecution to compel the production of such ballots, and in such a case secondary evidence is admissible; and, of course, where the ballots have been destroyed pursuant to law, secondary evidence is admissible. A statute which requires one offender against the election laws to testify against another, protecting him, however, against self-crimination by a provision that such testimony shall not be used in any prosecution against him, and that such witness shall not thereafter be liable to prosecution or punishment for the offense with reference to which he testifies, is constitutional. One who, in a prosecution for improperly writing names on the registration book, testifies in his own behalf that he did not write them, may, on cross-examination, be compelled to write the same names on a paper in the presence of the jury, this being a legitimate cross-examination and not a violation of the privilege of the witness not to furnish evidence against himself, such privilege having been waived by testifying.' Questions of evidence relating to particular offenses have been considered in preceding sections. 1C. v. Bradford, 9 Met. 268; or where it appears that defendant is unknown where he voted and his family resides elsewhere: Ibid.; but if it is charged that due and diligent inquiry has been made for the defendant without his being found in the ward or precinct, that fact does not in itself show the commission of an offense in his having voted there: Southworth v. U. S., 19 Court of Cl. 278. 2S. v. Bailey, 21 Me. 62. A polllist is the best evidence of who voted: Wilson v. S., 52 Ala. 299; but 7 U. S. v. Mullaney, 32 Fed. R. 370. I. WHAT CONSTITUTES THE OFFENSE. § 952. General nature. The law regards the act of unlawful combination and confederacy as dangerous to the public peace and welfare, and makes such combination and confederacy punishable criminally as a wrong distinct from that which was sought to be accomplished. The punishment for the conspiracy may be more severe than that provided for the commission of the wrong intended." § 953. Definitions.-According to the usual definition, which is satisfactory as far as a definition can go, a conspiracy is a combination of two or more persons by concerted action to accomplish a criminal or unlawful purpose, or some purpose not in itself criminal by criminal or unlawful means. The English cases have been summarized as indicating three divisions of the crime; first, where the thing to be attained is in itself a crime; second, where the object is lawful, but the means to be resorted to are unlawful; third, where the object is to do an injury to a third party of such nature that, if inflicted by one person, it 1U. S. v. Cassidy, 67 Fed. R. 698. 2 Clune v. U. S., 159 U. S. 590. Pettibone v. U. S., 148 U. S. 197; U. S. v. Cassidy, 67 Fed. R. 698; S. v. Rowley, 12 Conn. 101; S. v. Mayberry, 48 Me. 218; C. v. Hunt, 4 Met. 111; Smith v. P., 25 Ill. 17; Spies v. P., 122 Ill. 1; Alderman v. P., 4 Mich. 414; S. v. Burnham, 15 N. H. 396; S. v. Potter, 28 Ia. 554; S. v. Stevens, 30 Ia. 391; S. v. Jones, 13 Ia. 269; Wilson v. C., 96 Pa. St. 56; S. v. Buchanan, 5 Har. & J. 317; Rex v. Seward, 1 Ad. & El. 706. But this classi would be a civil wrong only and not a crime. fication will not cover all cases, and it will be necessary to discuss the elements of the crime more specifically. § 954. Purpose or means as criminal or unlawful.— The early common-law definitions, as well as the provisions of the earliest English statute on the subject, were very restricted in their scope and indicate that the combinations aimed at were mainly those involving the malicious procuring of a false indictment against an innocent man. A few of the early decisions in this country restricted the offense to cases where the purpose to be accomplished or the means employed involved a crime. But as will be seen in succeeding paragraphs, the cases now uniformly recognize as criminal many combinations having a purpose, or involving the use of means, not criminal but wrongful. How far the courts shall go in thus making punishable combinations to do acts which are merely unlawful and not criminal has been a question of much discussion, but the scope of the crime has been enlarged from time to time, and just what will constitute a punishable conspiracy must be determined by the precedents in particular classes of cases. It seems, however, that the crime has not been extended to cover combinations to do any possible wrong; for instance, a conspiracy to commit a mere civil trespass is not criminal. And of course a combination to do an act not wrongful in itself, or in the means to be used, and not injurious to the public, is not criminal; for instance, a combination to assist a father to secure the custody of his child.' § 955. Common-law conspiracy.- Although both in England and in this country there are statutes defining conspiracies in general, and also making particular forms of combinations 1 Reg. v. Parnell (No. 3), 14 Cox, 508. Mawbey, 6 Term R. 619; Reg. v. Best, 2 Ld. Raym. 1167; Rex v. Kin23 Inst. 143; 4 Bl. Com. 136; 33 nersley, 1 Strange, 193; Rex v. TimEdw. I, Stat. 2. berly, 1 Sid. 68; 1 Hawk. P. C., ch. 72. § 2. 3 S. v. Rickey, 9 N. J. 293; P. v. Richards, 1 Mich. 216; Alderman v. P., 4 Mich. 414; Lambert v. P., 9 Cowan, 578. 4 S. v. Rowley, 12 Conn. 101; Smith v. P., 25 Ill. 17; S. v. Buchanan, 5 Har. & J. 317; C. v. Hunt, 4 Met. 111; S. v. Burnham, 15 N. H. 396; Rex v. 53 Chit. Cr. Law, 1199; Archbold, Crim. Plead. 617; P. v. Richards, 1 Mich. 216. 6 S. v. Straw, 42 N. H. 393; S. v. Clary, 64 Me. 369. 7 C. v. Myers, 146 Pa. St. 24. |