(Criminal prosecutions for illegal voting.)

elections. It is well, that the people should be alive on these occasions; it is proof that they love their country, and take an interest in the government; apathy is the worst state into which a free people can fall; all parties should stand for their rights. Errors committed by individuals, in the fervor of the moment, ought not to be severely criticised; but it is for the best interests of the people, that wilful violations of the law should be punished. Verdict for defendants.

In Rhode Island, the principal point decided in Commonwealth v. Aglar, has been affirmed by the supreme court; it was there decided, in State v. Macomber, 7 Rhode Island 349, that to warrant à conviction for illegal voting, the ballot must be fraudulently cast, that is, with knowledge by the voter of his disqualification; and that an honest mistake by a voter, as to his right, though with knowledge of all the facts, and an assertion of it by voting, would not render him liable to a criminal prosecution. Whether the offence was wilfully committed is a question for the jury. Commonwealth v. Wallace, Thach. Cr. Cas. 592. In Tennessee, however, it is held, that ignorance of the law will not excuse illegal voting, but that, in order to convict, it must appear that the voter knew of a state of facts which would, in point of law, disqualify him. McGuire v. State, 7 Humph. 54. In California, the law is held to be, that where an unlawful act is proved to have been done by the accused, the law, in the first instance, presumes it to have been intended, and the proof of justification or excuse lies on the defendant. People v. Harris, 29 Cal. 678.

In Massachusetts, evidence that the defendant consulted counsel as to his right to vote, and submitted to them the facts of his case, and was advised by them that he had the right, is admissible in his favor, on the trial of an indictment for illegal voting, but is not held to be conclusive. Commonwealth v. Bradford, 9 Met. 268. In North Carolina, the unlawful purpose, is held, primâ facie, to attach to the act, and that the opinions of others, who believed the vote lawful, including that of the judges of the election, does not amount to a justification or excuse. State v. Hart, 6 Jones (Law) 389. And in the same state, it was determined, that where a defendant indicted for illegal voting, offered to

(Criminal prosecutions for illegal voting.)

prove that he was advised by a respectable gentleman, though not a member of the bar, that he had a right to vote, such evidence was inadmissible, and fraud was to be presumed from the act of voting, as there was no excuse for ignorance of the law. State v. Boyett, 10 Ired. 336.

On such indictment, the defendant's statements, made at the polls, on being challenged, are not admissible evidence in his favor; nor is the decision of the election officers, in favor of his right to vote, any defence. Morris v. State, 7 Blackf. 607. In Alabama, it is held, that the act of voting is not complete, until the ballot is put into the box, and the name of the voter is registered by the clerks. Blackwell v. Thompson, 2 Stew. & Port. 348. But in Tennessee, the supreme court determined, that when a voter presents himself before the judges, hands his ticket to the officer, and his name is announced and registered, the act of voting is complete; it is not necessary that the ballot should have actually been put into the box. Steinwehr v. State, 5 Sneed 586.

Irregularities in the manner of holding the election, constitute no defence to an indictment for illegal voting. State v. Cohoon, 12 Ired. 178. But the election must have been legally held. State v. Williams, 25 Maine 561.

STATE v. MOORE.

In the Supreme Court of Judicature of New Jersey.

JUNE TERM 1858.

(REPORTED 3 DUTCHER 105.)

[Requisites of indictment for illegal voting.]

An indictment for illegal voting must specify the particular disability that disqualifies the defendant.

In an indictment for illegal voting, it is not necessary to charge that the defendant fraudulently voted; but in one for illegally offering to vote, it must be averred that the vote was fraudulently offered.

This was an indictment charging William J. Moore, the defendant, with having voted illegally, at the November election 1856; the defendant having been found guilty, a motion was made to arrest the judgment, on the ground of the insufficiency of the indictment; whereupon the court of oyer and terminer certified the case to the supreme court for its opinion. The substance of the indictment is set forth in the opinion of the court.

Stockton, for the defendant.

Dayton, attorney-general, for the state.

GREEN, C. J., delivered the opinion of the court. This indictment charges that the defendant, at an election held, pursuant to the statute, for electors of president, &c., did wilfully and unlawfully give in his vote for the officers aforesaid, being the officers to be chosen, he, the said William J. Moore, then and there not being duly qualified to vote at said election for said officers, and then and there well knowing himself not to be duly qualified to vote at said election for said officers, against the form of the

(Requisites of indictment for illegal voting.)

statute, &c. The indictment is founded on the 50th section of the act to regulate elections (Nixon's Dig. 223), which enacts as follows: "any person who shall vote, or shall fraudulently offer to vote, at any election held under this act, or at any township or ward election, who shall not have been a resident of this state for one year, and of the county in which he votes five months next before the election, or who, at the time of the election, is not twentyone years of age, knowing that he is not twenty-one years of age, or who is not a citizen of the United States, knowing that he is not such a citizen, or who, by reason of any disability, is not duly qualified to vote at the place where and time when his vote is given or offered, knowing that he is not duly qualified, shall be deemed guilty of a misdemeanor," &c.

The offence created by the statute, and for which the defendant is indicted, may be defined to be, "voting at an election, held under the act to regulate elections, by a person who, by reason of some disability, is not duly quali fied to vote at such election, knowing that he is not duly qualified."

It is objected, first, that the indictment does not follow the words of the statute, nor charge the offence therein described; the charge is not, in the language of the act, that the defendant did vote, but that he did "wilfully and unlawfully give in his vote." But voting and giving in a vote are precisely synonymous terms; they are so used in the very section on which the indictment is founded; its language is "any person who shall vote, or offer to vote, knowing that he is not duly qualified to vote, at the place where, and time when, his vote is given or offered;" giving the vote is voting, not offering to vote. The indictment, therefore, is not open to the objection urged upon the argument, that it is equivocal, and may mean, either giv ing the vote into the ballot-box, that is, voting, or giving it into the hands of the officer, that is, offering to vote.

Again, it is objected, that the indictment does not charge

(Requisites of indictment for illegal voting.)

that the defendant fraudulently voted. The statute does not require it; its language is, "any person who shall vote, or shall fraudulently offer to vote;" the objection requires the statute to be read thus, "any person who shall fraudulently vote or offer to vote;" but such is neither the phraseology nor the intent of the statute. A person who votes, knowing that he is disqualified, acts, of necessity, in fraud of the act; but a person may offer to vote, knowing that he is disqualified, in jest or banter, with no serious intention of voting, and therefore, such act is not, necessarily, fraudulent or criminal.

It is further objected, that the indictment does not charge, that the vote was given at an election held under the act to regulate elections, which is an essential part of the description of the offence. The charge is, that the vote was given "at an election held, pursuant to the statute in such case made and provided, for electors of president and vice-president of the United States, for a member of the house of representatives of the United States for the first district of the said state of New Jersey, for a governor of said state, for a member of the general assembly for the third assembly district of said county, for a sheriff and three coroners for said county." There is but one statute in the state, pursuant to which the election of these officers can he held, namely, the act to regulate elections; there is, therefore, in substance, an averment that the election was held under that act. In this and other particulars alluded to, the indictment lacks that technical precision and strict conformity to the phraseology of the statute constituting the offence, which is eminently desirable, but it is not thereby rendered fatally defective.

But the indictment is fatally defective in not specifying the particular disability which is relied on, as a disqualification of the defendant as a voter. It lacks, in this particular, the first essential of a valid indictment, inasmuch as it does not apprise the defendant of the precise nature of the offence with which he is charged, so as to enable