II. That in default of so electing, the first cause of action be stricken out as irrelevant. III. That the plaintiff pay the defendant's attorney ten dollars, costs of this motion. Enter: 381 W. M. S., J. S. C. ELECTIONS. BY GEO. CARTER CHANEY. I. OFFENSES AGAINST ELECTION LAWS, 383. 1. Illegal Voting, 383. a. Voting When Not Qualified, 384. (1) In General, 384. (2) Not Being a Citizen of the United States, 385. (3) Not Being of Full Age, 386. (a) In General, 386. (b) And Being Over Fourteen, 386. (4) Not Having Paid Taxes, 386. (5) Being a Female, 387. (6) By Reason of Insufficient Residence, 387. (a) In State, 387. (b) In County, 388. (c) In Ward, 388. b. Voting When Disqualified by Conviction of Crime, 389. c. Voting More than Once at Same Election, 390. d. Voting in Name of Another Elector, 395. 2. Refusing Legal or Accepting Illegal Votes, 396. b. Receiving Illegal Vote, 397. 3. Neglect or Refusal of Election Officer to Perform His Duty, 397. a. To File Certified Poll-book, 398. b. To Administer Oath to Challenged Elector, 398. c. Of Nearest Justice to Receive Ballot-box, 399. 4. Betting on Result of Election, 399. 5. Interfering with Elector, 401. a. By Giving Him Intoxicating Liquor, 401. c. By Threats, 403. (1) To Discharge from Employment, 403. 6. Interfering with Election or Election Officers, 404. b. By Selling Liquor on Election Day, 404. c. By Obtaining or Attempting to Obtain Possession of Ballot-box or Ballots, 405. d. By Destroying or Attempting to Destroy Ballot-box, Pollbook or Ballots, 406. e. By Altering Ballot, 407. f. By Altering Poll-book, 408. 7. Fraudulent Registration, 409. a. In General, 409. b. By Giving False Residence, 409. b. Aiding and Abetting Illegal Voter, 413. II. ACTION FOR PENALTY OR DAMAGES, 416. III. ELECTION CONTESTS, 419. 1. By Notice, 421. a. On Ground of Ineligibility of Officer Elect, 422. b. On Ground of Irregularities in Conduct of Election, 422. 2. By Petition, 424. a. To Ordinary Tribunal, 424. (1) In General, 424. (2) Election Held at Wrong Place, 425. (3) Void Ballots Counted, 427. (4) Illegal Recount, 428. b. To the Legislature, 431. (1) Petition, 431. (2) Answer, 437. (3) Replication, 439. CROSS-REFERENCES. For Forms in Proceedings by Mandamus to Compel Performance of See also the GENERAL INDEX to this work. I. OFFENSES AGAINST ELECTION LAWS. 1. Illegal Voting.1 the defendant by surprise. Moreover, a general charge of illegal voting states no facts upon which issue may be taken. Gordon v. State, 52 Ala. 308; People v. Neil, 91 Cal. 465; Quinn v. State, 35 Ind. 486; State v. Symonds, 57 Me. 148; State v. Moore, 27 N. J. L. 105; State v. Tweed, 27 N. J. L. 111; People v. Standish, 6 Park. Crim. Rep. (N. Y. Supreme Ct.) 111; Com. v. Huber, 13 Lanc. Bar. (Pa.) 139; Pearce v. State, I Sneed (Tenn.) 63; State v. Haynorth, 3 Sneed (Tenn.) 64; Gallagher a. Voting When Not Qualified. (1) IN GENERAL. Form No. 8201. (Precedent in Com. v. Shaw, 7 Met. (Mass.) 52.)1 v. State, 10 Tex. App. 469; Blitz v. U. S., 153 U. S. 308; U. S. v. Hirschfield, 13 Blatchf. (U. S.) 331; U. S. v. Seaman, 23 Fed. Rep. 882. But the omission to state wherein the illegality of the vote complained of consisted should be objected to by demurrer. After verdict it is too late. State v. Bruce, 5 Oregon 68. The contrary rule, that where defendant is indicted under a statute providing against voting with the knowledge of disqualification, the charge need only follow the wording of the statute, without specifying the disqualification, is held in State v. Douglass, 7 Iowa 413; Com. v. Shaw, 7 Met. (Mass.) 52; State v. Marshall, 45 N. H. 281. And see U. S. v. Quinn, 8 Blatchf. (U. S.) 48. "Give In His Vote."- In an indictment for illegal voting, a charge that the defendant did wilfully and unlawfully "give in his vote "is equivalent to charging that he did wilfully and unlawfully "vote." State v. Moore, 27 N. J. L. 105. Intent. As a general rule, the wording of the statute should be followed, it being held in U. S. v. Watkinds, 6 Fed. Rep. 152, that an indictment for illegal voting under U. S. Rev. Stat. (1878), § 5511, should charge that defendant 'knowingly" voted. But it was decided in State v. Haynorth, 3 Sneed (Tenn.) 64, that the word "illegally' in the Tennessee statute comprehended the meaning of "knowingly;" and in Hamilton v. People, 57 Barb. (N. Y.) 625, that the use of the word "unlawfully" alone was sufficient under the New York statute, the other words 'knowingly, wilfully, and corruptly being treated as surplusage. But where the indictment is brought for illegally offering to vote, it must charge that defendant did so fraudulently." State v. Moore. 27 N. J. L. 105; Pearce v. State, I Sneed (Tenn.) 63. Authority for Election. - The specific authority for an election need not be set forth. State v. Marshall, 45 N. H. 281; Gallagher v. State, 10 Tex. App. 469. That an election was held at or in a certain precinct upon the day prescribed for holding such an election will raise the presumption that the election was legal. U. S. v. Johnson, 2 Sawy. (U. S.) 482. Authority of Officers. - The authority of the election officers need not be specifically set forth. Thus, where it was averred that defendant voted at a certain election authorized by law, then and there holden, the implication is that it was held by the proper officers. State v. Douglass, 7 Iowa 413; Gallagher v. State, 10 Tex. App. 469. And it is a sufficient averment of the appointment of an election officer to state that he is a judge of elections. State v. Randles, 7 Humph. (Tenn.) 9. Purpose of Election. - The general rule is that the title or purpose of the election should be described so definitely that fit judgment can be pronounced. Gandy v. State, 82 Ala. 61; Carter v. State, 55 Ala. 181; Com. v. Desmond, 122 Mass. 12; Lane v. State, 39 Ohio St. 312; Gallagher v. State, 10 Tex. App. 469; Hoskey v. State, 9 Tex. App. 202. Names of Candidates and Officers. Neither the names of the candidates nor of the offices to be filled need be stated. Wilson v. State, 52 Ala. 299; State v. Minnick, 15 Iowa 123; Bates' Anno. Stat. Ohio (1897), & 7225; Gallagher v. State, 10 Tex. App. 469. Place of Election. Since illegal voting is a local offense, the indictment should state with precision where the illegal vote was cast. State v. Fitzpatrick, 4 R. I. 269; Gallagher v. State, to Tex. App. 469. That the election was "held and authorized by law within and for the corporation of the city of Weatherford," was held sufficient in Gallagher v. State, 10 Tex. App. 471. See also a sufficient allegation of place in Com. v. Desmond, 122 Mass. 12. } SS. At the Superior Court,1 begun and holden at Lowell, [Commonwealth of Massachusetts, County of Middlesex. within and for the County of Middlesex, on the second Monday of February, in the year of our Lord one thousand eight hundred and forty-two. The jurors for said commonwealth on their oath present, that Adrian Shaw, late of Tewksbury, in the county of Middlesex, on the eighth day of November, in the year of our Lord one thousand eight hundred and forty-one, at Tewksbury aforesaid, in the county of Middlesex aforesaid,]2 at a town meeting of the inhabitants of said Tewksbury, at the election of governor and lieutenant governor of said Commonwealth, and of senators for the district of Middlesex, then and there duly holden, well knowing himself not to be a qualified voter, did wilfully give in a vote for the officers aforesaid, being the officers to be then and there duly chosen, [against the peace of said commonwealth, and contrary to the form of the statute in such case made and provided. Daniel Webster, District Attorney. ]2 (2) NOT BEING A CITIZEN OF THE UNITED STATES. SS. Form No. 8202.3 State of Ohio, In the Court of Common Pleas of Lucas County, Lucas County Ohio, for the Term of February, A. D. 1896. The jurors of the grand jury of the state of Ohio, within and for the body of the county of Lucas, impaneled, sworn, and charged to inquire of the crimes and offenses committed within said county of Lucas, in the name and by the authority of the state of Ohio, on their oaths do find and present † that John Doe, late of said county, on the with Mass. Stat. (1893), c. 417, § 311. See also supra, note 1, p. 383. - Falsely Giving Answers. This indictment contained a second count drawn under a statute identical with Mass. Stat. (1893), c. 417, 312, which charged that defendant on said date, "at Tewksbury in said county, at a town meeting (repeating, as to the meeting and its purposes, the words in the text) being then and there inquired of by the selectmen of said Tewksbury, presiding at said meeting and election, whether he, said Shaw, had paid any tax assessed upon him within two years next preceding said election, within any town or district in this State, to wit, the Commonwealth aforesaid, did then and there wilfully give a false answer to said selectmen, namely, that the said Shaw had paid a tax assessed upon him in the city of Lowell, in said county, within two years next preceding said election, to wit, a tax assessed to him in said Lowell in the year 1840; whereas, 7 E. of F. P. — 25. in truth and in fact, said Shaw had not paid any such tax, so assessed upon him in said Lowell, in the year 1840; and the said inquiry was then and there made of said Shaw for the purpose of ascertaining his right to vote at said election, and said false answers were returned by him, said Shaw, then and there fraudulently intending to procure his name to be inserted on the voters' list of said town, and to obtain permission then and there to vote at said election." This count was held sufficient without alleging that the district of Middlesex is in the commonwealth. 1. Trial in this case was had in the court of common pleas, but the formal parts have been changed to meet the present practice. 2. The words enclosed by [ ] will not be found in the reported case, but have been added to render the form complete. 3. Ohio. Bates' Anno. Stat. (1897). $ 7051. See also supra, note 1, p. 383. Volume 7. 385 |