§ 567. In considering whether an officer of election has acted wilfully and corruptly in rejecting a vote which is offered, it is proper to look at the character of the question he was called upon to decide, and the manner in which he conducted himself in hearing and disposing of it. If the question be a plain one to the common understanding, one about which men of ordinary intelligence would be likely to agree, and if it be decided without deliberation, and against the right, a strong presumption of wilfulness and corruption will arise. But if it be a question of doubt or difficulty, one about which men of ordinary intelligence might honestly differ, and if the judge acts with deliberation, and with an apparent desire to decide rightly, and errs in his judgment, it is fair to presume that it is a case of honest error.

(Ib.)

§ 468. In Commonwealth vs. Samuel Silsbee, (9 Mass., 416,) the indictment charged that the defendant, a legal voter, at the town meeting held on the eleventh day of March, 1811, at Salem, for the choice of town officers, "did then and there wilfully &c., give in more than one vote for the choice of selectmen for said town of Salem, at one time of balloting."

This was not made an offense by the express provisions of any statute, but the Court held it to be an offense at common law.

"There cannot be a doubt," says the court, “that the offense described is a misdemeanor at common law. It is a general principle that where a statute gives a privilege, and one wilfully violates such privilege, the common law will punish such violation. In town meetings every qualified voter has equal rights, and is entitled to give one vote for every officer to be elected. The person who gives more, in

fringes and violates the rights of the other voters, and for this offense the common law gives the indictment."

§ 469. The better opinion seems to be that double voting or any other wilful and corrupt attempt to defeat a fair expression of the legal voters through the ballot box is, in the absence of statute, an offense which may, as a general rule, be punished by indictment under the common law. This rule, however, is not universal. For example, in Ohio it has been decided "that the common law, though in force in this State in all civil cases, could not be resorted to for the punishment of crimes and misdemeanors." (Key vs. Vattier, 1 Ohio, 132. Van Valkenburg vs. The State, 11 Ohio, 404.) And in some of the States there are statutes expressly providing that all crimes and misdemeanors shall be defined and punished by statute. (Bishop on Crim. Law, Secs. 44-45.)

§ 470. Under a statute providing that any person who shall vote "without being duly qualified," shall be punished, &c., and also providing that no person is entitled to vote elsewhere than in the township of his residence, it was held that a person who was a resident of and qualified voter in, one township, and who voted in another, was liable upon an indictment under such statute. The same statute required the voter if challenged to swear to his residence in the township, and it was held that he was liable to indictment, both for perjury and for illegal voting. (The State vs. Minnick, 15 Iowa, 123.)

§ 471. In the same case it was held that it is not necessary in an indictment to state what officers

were to be chosen at the election at which the illegal vote was given. The Court will take judicial notice of the statutory provisions which provide for the election of certain officers on a given day. Nor is it necessary that in such an indictment there should be an averment that the defendant voted for or against any particular person. It being shown that defendant voted, the presumption that he voted for some person, necessarily arises.

§ 472. Where the defendant, an unmarried man, left his father's home in D. township, and went to F. township, on the Sunday before the election, remained there chopping wood until the evening of or the next morning after the election, and (having, while there, voted) quit his work and returned home, it was held that the verdict of guilty was fully warranted by the facts. (Ibid.)

Such circumstances as these are not only admissible to prove a wilful and corrupt violation of the election law, but, if unexplained, they are well nigh conclusive upon the question.

§ 473. On the trial of an indictment under a statute for "wilfully voting when not a citizen of the United States," evidence that the defendant consulted "friends" as to his right to vote, "and was advised by them that such right existed," was held inadmissible. A person who votes illegally cannot be excused on the ground that he has taken counsel of those no better informed than himself. If he had consulted persons learned in the law, and being advised by them with full knowledge of all the facts that he was a legal voter, this fact might have been shown as tending to disprove a criminal intent, but such evi

dence would not be conclusive. [State vs. Shelley, And see Gordon vs. State, 52 Ala.,

15th Iowa, 404.

208. And see Sec. 541.]

§ 474. If an indictment against a party for voting illegally, charges that the election was held on the day fixed by law, what officers were then to be elected, and that such election was authorized by law, it is not necessary to aver further that the election was held by the proper officers. As we have seen it is not necessary even to state what officers were to be chosen at the election, because the law fixes that, and the Courts must take judicial notice of it. An averment that the defendant voted illegally at an election held upon a specified day, and authorized by law, includes the idea that the election was held by the proper officers. Such an averment clearly and necessarily implies not only that the election held that day throughout the State was authorized, but also that the polls at which the defendant voted, were opened, and the election conducted by the properly constituted officers. (The State vs. Douglass, 7th Iowa, 413.)

§ 475. It is a disputed question whether under an indictment for illegal voting it is necessary, in order to convict, to show that the defendant had knowledge of his disqualification. In Commonwealth vs. Aglar, (Thacher's Criminal Cases, 412. Brightley's Election Cases, 695,) the municipal court of the city of Boston held that a person is not liable criminally for illegal voting, unless he knew at the time that he was not a qualified voter, and that he was doing or attempting to do, an illegal act; and that if he honestly believed that he had a right to vote, it is not a wilful act punishable by indictment. The same

doctrine prevails in Rhode Island, where the courts hold that to sustain an indictment for illegal voting, the ballot must be fraudulently cast, that is, with knowledge by the voter of his disqualification. (State vs. Macowber, 7 Rhode Island, 349.) It has also been held that whether the offense was wilfully committed, is a question for the jury. (Commonwealth vs. Wallace, Thach. Cr. Cases, 592.)

In Tennessee 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 a state of facts which would, in point of law, disqualify him. (McGuire vs. State, 7 Humph., 54.) And so in North Carolina. (State vs. Hart, 6 Jones, [Law,] 389. State vs. Boyett, 10 Ired, 336.)

In California the courts have avoided both extremes, and planted themselves upon a sort of middle ground, by adopting the following rule: 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 vs. Harris,

29 Cal., 578.)

§ 476. It is held in Indiana that on the trial of an indictment for illegal voting, 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 defense. (Morris vs. State, 7 Black f., 607.)

§ 477. The question when the act of voting is to be considered as complete, is also a disputed question. Thus, in Alabama it was held that it is not