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(Indictments against election officers.)

duties, and independently of any connection with their conduct of the election; for such acts, they could not be held amenable under this section. For aught the court can know from this record, such may have been the wrongs complained of.

Another reason why the specific acts, which constitute the alleged fraud, should be stated, is, in order that the accused may know what they must prepare to answer. This count alleges that they "did commit wilful fraud in the discharge of their duties." Is such a general allegation as this sufficient? are they not entitled to some notice in what the prosecutors assert this fraud to consist? should there not be some specification, an averment of some one fact, which would admonish them of what will be the accusation they must answer on the trial? They were officers, acting under the sanction of an oath, enjoying the confidence of their fellow-citizens, as manifested by their election to the stations which they held; surely, it would have been but fair and reasonable, that the commonwealth should specify upon the record something, some act, which would individuate the alleged fraud. In our opinion, the law requires it should be done; it is the law of England, of the United States and of Pennsyl vania; a right to seek a simple and intelligible statement of what one shall be called upon to answer, is what the citizen may demand. It is given in all similar accusations for crimes; and the want of such averment renders this first count bad, and therefore, as to that, judgment must be entered for the defendants on the demurrer.

To the next four counts there are two objections; first, that although these counts contain an allegation of acts which constitute the fraud complained of, yet, the facts are not stated with that precision and certainty which the rules of pleading require. The law is clear, that the specific acts alleged to have been done by the accused, which bring his conduct within the prohibitions of the statute, must be stated with as much certainty as the nature and

(Indictments against election officers.)

circumstances of the case will admit; without such specification of facts, the record cannot sustain a verdict. In prosecutions for larceny, the indictment must describe the property stolen with reasonable certainty, not only what the property was, but its nature and character; so, in burglary, there must be an allegation what premises were entered, and who was the owner or possessor when the breaking occurred; in homicide, the means by which the deed was done must be stated on the record. So with regard to offences created by statute; therefore, an indictment charging the defendant with obtaining money by false pretences, without stating what the particular pretences were, is bad; and not only so, but the property of which the prosecutor was defrauded, must also be described with reasonable certainty. 1 Chit. C. L. 140; 2 Hawk. P. C. 321; 2 Stra. 1127; 8 Penn. St. R. 260; 2 Whart. C. L. § 2155. The indictment must also state the goods to be the property of some person named, and when no name is laid, the indictment will be quashed. Regina v. Parker, 3 Ad. & Ellis 292; 8 C. &. P. 196. So also, an indictment for procuring money by false tokens, under the 21 Hen. VIII., must aver what the tokens were; likewise, an indictment for words spoken of a magistrate, in the execution of his office, must set forth the words; and nothing is better settled than that, in a prosecution for perjury, the pleader must state upon the record the. language used by the accused when he committed the offence..

Let us apply this settled rule of law to the second count of this indictment, which charges that the defendants "did fraudulently procure and cause to be written on the list of voters kept at such election, a large number, to wit, one hundred and fifty names of persons, as having lawfully voted at such election, whereas, in truth and in fact, no such persons voted at the same." Is, then, this specification of the acts stated with that certainty which the nature of the case admits? The criminal pleader is

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(Indictments against election officers.)

always presumed to be acquainted with the facts of the case, before he prepares a record statement of them, therefore, he must have known the names of, at least, some one, among this one hundred and fifty, if not all of them. It seems to us, that it is not requiring too much of the prosecution, when we say, they ought to set forth the names of some of them upon the record. It must be proved, on the trial, what are the names of the persons which, it is alleged, were fraudulently written on the list of voters kept at the election; it is the material point to be established before a jury; without establishing the fact of the names, thus entered on the list, of the individuals who did not vote at the election, as charged in the bill, the prosecution must fail; for it will not do to make the charge, without indicating who such persons were, by name. If so, why not give the names in the bill? Why should the prosecution be suffered to withhold or suppress them? In our opinion, a fair administration of the criminal law demands that it should be done, in order that the defendants may be apprised of what they must be prepared to meet on the trial. To them it is a matter of infinite importance; there may be a thousand names on the tally-list; under this bill, how can the defendants know which name, out of this one thousand, the prosecution will select, as an individual who did not vote, whose name is recorded? Must they be put to the trouble and expense to subpoena those thousand voters to defend themselves against this charge, if they are innocent? without so doing, how can they, with safety, go to trial? And even then, more might be required, for some of those who voted may have left the state, and other proof may be necessary.

It appears to us, that no charge ought to be tolerated in an indictment, which would thus embarrass the accused, who are always presumed to be innocent until their guilt is established. The rules of pleading are not arbitrary, but are founded upon the soundest reason, when they re

(Indictments against election officers.)

quire that a prosecutor shall state the accusation with as much certainty as can be admitted by its nature and character. In this count, it has not been done; the names of the persons which, it is averred, were put upon the tally-list, but who never voted, could have been stated in the bill, yet they are not. We think the law requires such a statement (justice and fairness to the accused demand it); and that there is no such precision in the averment of facts which constitute the crime, as is usual in similar cases, where offences have been prohibited by statute. It is difficult, nay, impossible, to see why this case should form an exception to the general rule, particularly, when it was so easy to have made the statement with that precision which would have given full and fair notice to the accused. These remarks apply, with equal force, to the 3d and 5th counts; but I do not think, the 4th and 6th counts are embraced within this principle, nor can this objection be made to them.

Yet, it is contended that, if the first count be bad, and judgment be given for the defendants on the demurrer, as to that count, and it fall, all the others must necessarily fall with it, because there is no allegation in either of the other counts, that the defendants were inspectors, judge and clerks, but all the subsequent counts refer to the first count, as their antecedent, for this averment. That the indictment must state the particular office which each held at the election, and their various stations be designated, when prosecuted for official misconduct, I think, is clearly settled in the case of Commonwealth v. Rupp, 9 Watts 114. But whilst we pronounce the first count defective, and rule that we must give judgment for the defendants on the demurrer, as to that count, I do not think it so clear, that where the first count is referred to, as for the "day and year aforesaid," "the county aforesaid," and "being officers as aforesaid," all the subsequent counts should be pronounced bad, because there is not a repetition of the distinct office which each held; for, it seems to be well settled,

(Indictments against election officers.)

that the defect of some of the counts in an indictment, will not affect the validity of the remainder; judgment may be given against the defendant upon those which are valid. 1 Bos. & Pul. 187; 1 Chit. C. L. 205. Therefore, it is held, although every count should appear, upon its face, to charge the defendant with a distinct offence, yet, one count may refer to matter in any other count, so as to avoid unnecessary repetition, as for instance, to describe the defendant as "the said," &c.; and though the first count be defective, or be rejected by the grand jury, this circumstance will not vitiate the residue. 2 H. Bl. 131; 1 Chit. C. L. 205. And it was said by Gould, J., in the case cited from H. Bl., "that he remembered a case of an indictment for forgery, in which there were three counts for the forgery, and three for the utterance; in the first count, the prisoner was particularly described, and the grand jury rejected the first three counts; an objection was raised, that the remaining counts described him the said A. B.,' by reference to the first, but the judges held that the description was good, and that the latter counts might refer to the former."

This principle seems to be repeated by most of the best writers on criminal law. No reason is given in any of the cases, for this seeming paradox, in relation to various counts in indictments, for all say, that every separate count should charge the defendant as if he had committed a distinct offence. But I apprehend the true reason is this: while the court rule that the offence is not described with sufficient legal precision, and on that ground, refuse to give judgment for the prosecution, for the alleged crime thus defectively stated, they hold that the description of the defendant, the time, place and venue are laid with sufficient precision, and therefore, that this part of the first or previous counts may be referred to, for that is not pronounced invalid.* It is upon this ground that I conceive

* And see Commonwealth v. Kaas, 3 Brewst. 422.

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