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the constant practice of the courts in this country has been recognised, to arrest the judgment on one or more of the counts, and to sentence on others, which are determined to be good; such, we know, is the practice in this state, and has been ruled to be the law by the supreme court of the United States, United States v. Furlong, 5 Wheat. 184; 8 S. & R. 420.

The case of Rose v. State, Minor 28, seems to be in opposition to this principle; in that case, one count in the indictment was quashed, and it was held, that this set aside the whole indictment; but upon what principle of previous decision this opinion is based, it seems rather difficult to determine. Still, I do not think it would be safe for us now, to disturb a practice which has been pursued by the courts in this state, following the English decisions, which date back as far as the year 1792 and before. Because we say, that the first count does not state the offence with that legal precision which would justify a verdict and judgment, we do not decide, that the parties are not sufficiently described, nor that all the other matters set forth in the same are not averred with sufficient certainty. And if there were no other objection, we should be disposed to hold, that the 4th and 6th counts, perhaps, might be sustained.

But there is one general objection to the whole bill which, if well taken, must dispose of the entire case, and it is this: the inspectors, judge and clerks are all joined in the same indictment. Can there legally be such a joinder, for an offence alleged to have been perpetrated under the 102d section of the election law? particularly, when the offices are different, when the duties are distinct and separate, and when an election may be held, and the judge not be called upon to perform a single official act in relation to the receiving or registering the votes? We will first consider this question on authority, and then upon principle.

The rule of law seems to be this: where the offence

(Indictments against election officers.)

arises wholly from any joint act, which, in itself, is criminal, without regard to any particular personal defendant, the indictment may charge the defendants either jointly or severally. But where the offence charged does not wholly arise from the joint act of all the defendants, but from such act, joined with some personal and particular defect or omission of each defendant, without which it would be no offence, the indictment must charge them severally and not jointly; for, Hawkins says, "it is absurd to charge them jointly, because the offence of each arises from a defect peculiar to himself." 2 Hawk. P. C. 342; 1 Chit. C. L. 220. Hence, it was decided, in the case of Rex v. Weston, 1 Stra. 623, that an indictment against six, jointly and severally, for exercising a trade, should be quashed, because there ought to have been distinct indictments. In the case of Rex v. Philips, 2 Stra. 921, six were charged in an indictment with perjury, and four of them pleading, were convicted; it was moved in arrest of judgment, that they could not be joined, and on that ground the court arrested the judgment. A case is reported in 6 Mod. 210, where there was an indictment against several for the neglect of a day of fasting by proclamation, which was quashed, because the indictment was joint and should have been several. 2 Hawk. P. C. 343.

It appears to us, that there never was a case where the rule, which has just been stated, could be more properly applied than in the present. In the first place, the duties of the inspectors are different from those of the other officers mentioned in the bill; they receive the votes and decide upon the qualifications of the electors who tender them; and it is only when the inspectors differ in opinion, in any particular case, that the judge is called upon to act; hence, an entire election may pass off without he, who is stationed there as judge, being called upon to perform any official act as to the reception of votes. The clerks have nothing to say about the reception or rejection of a vote;

(Indictments against election officers.)

it is their duty simply to record the names of those who, their superiors determine, are legal voters, when the tickets are received; the clerks never receive a ticket, nor can they put one in the ballot-box, or count them when told off; their duties are purely clerical. The acts and doings of these defendants, on this occasion, were not necessarily criminal in themselves, but were legal; and could only become criminal, by a violation of their duty. The two inspectors might have committed most of the acts charged in the bill, and the judge and clerks have been entirely innocent of any participation in the transaction; hence, we say, in the language of the law, "the offence charged doth not arise from the joint act of all the defendants, but from such, joined with some personal or particular defect or omission of each defendant (or a part of them), without which it would be no offence; when such is the state of the case, the indictment must charge them severally and not jointly." Nothing, then, can be more clear, than that it is a manifest error in law, to join all these defendants in the same indictment; and such a joinder of the parties necessarily entitles them to judgment on the demurrer as to the whole bill.

There are a few considerations which, it seems to me, will strike the common sense of every one, as to the propriety of the rule just stated and of its application to the present case. We know that the inspectors and judge are elected by the people, the clerks are not; a particular form of oath is prescribed by law for the inspectors; another and different one for the judge; and still another, varying in form and substance, is to be taken by the clerks, before they enter upon the duties of their office. Each of these three classes of officers moves in a different sphere; each has different and distinct functions to perform; and then to say, that all shall be charged in the same indictment for a highly penal offence, when, from the nature of some of the acts charged, some of the officers could not have. participated in doing the act, or have prevented the same,

(Indictments against election officers.)

had they attempted, must convince the judgment of every fair-minded man that it is wrong.

Now, many of the acts alleged to have been done, might and must have been committed by the two inspectors alone, or by one inspector and the judge; how unreasonable to join the clerks and judge in the same bill, and thereby deprive them of the testimony of those who, if permitted to testify, would perhaps establish, beyond all doubt, their entire innocence, and show that some of them, at least, did not participate in the transaction. And what injury can be done to the commonwealth, by preferring several bills against them? If the two inspectors united in placing in the ballot-box the names of individuals who never voted, and required the clerks to enter them upon the tally-list, why not indict those who did the act, separately and alone, and call the judge and clerks to prove the fact? By such a severance of the charges, no injury can possibly be done to the prosecution, in the elucidation of the truth, and presenting the cause as the facts really transpired, which is the real design of every criminal prosecution; on the contrary, great good may be thereby accomplished. Under the system of pleading above indicated, and which the law has wisely prescribed, no injury will be done to the cause of public justice or to the defendants, and no one will have just ground of complaint; the accused will then have a fair chance to present their defence, in its true and legitimate form, and the prosecution can command the testimony of all persons who, it is supposed, could be cognisant of the transaction. Any bill of indictment which does not contain these important elements, is not in accordance with the great and fundamental principles of pleading in criminal cases, nor sanctioned in judicial proceedings.

The law has no meshes in which to catch the unsuspecting or unwary; its main design is, when an individual is called to the bar of public justice to answer for alleged misconduct, to hold him responsible, personally, for his

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own misdeeds, and not for the defects or omissions of another; and to present him with a plain, unambiguous statement of the accusation against him; this he has a right to demand, and such a presentment no honest man will fear to meet. It is this which the defendants claim, in the legal issue which has been raised upon this record; and this, the court, in an upright and conscientious performance of duty, are bound to accord to them, as they are to the humblest man that appears in court. Guarded· as we are by the law, and the wisdom of long-established principles, solemnly settled, our judgment must be rendered in favor of the defendants on this demurrer.

Judgment for defendants.

In Commonwealth v. Gray, 2 Duvall 373, it was ruled by the court of appeals of Kentucky, that an indictment charging the defendant, as one of the judges of an election, with knowingly and unlawfully receiving the vote of an unqualified person, was sufficient, without showing whether the sheriff or the other judge was in favor of, or opposed to, allowing the illegal vote to be cast. And it was said by Robertson, J., in delivering the opinion of the court, that "primâ facie both judges concurred, or the appellee and the sheriff co-operated in receiving the unlawful vote; and if there was such co-operation, the other concurring officer or officers may have been ignorant of the illegality, and therefore, innocent; or, if guilty, that cumulative guilt could not exculpate the appellee, who should be personally and severally liable for his own unlawful act, in receiving, as charged, the illegal vote; it was not at all necessary, therefore, to show how the other officers acted." And see Commonwealth v. Ayer, Cush. Elect. Cas. 674.