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by death or imprisonment in a State prison. Here, the remedy provided by the law affords a statutory indication that the disqualifying provision is understood as applying only to cases of conviction in a court of the State. Furthermore, section 76 of the act of 1872 - plainly inserted for a better enforcement of the disqualifying provision-declares that "if any person who shall have been convicted of bribery, felony, or other infamous crimes, under the laws of this State, shall thereafter vote, he shall, upon conviction thereof, be adjudged guilty of a felony," etc. This section throws light upon the language of the disqualifying provision it was intended to enforce, and shows plainly that only convictions arising under the laws of the State are intended to work the disqualification of a voter. I therefore conclude, from an examination of the statutes of the State appertaining to this subject, that these statutes do not deprive of the right of suffrage a person who has been convicted, in the courts of the United States, of a mere statutory offense against the United States.

This conclusion is strengthened by the construction put, by the courts of the State, upon the provision respecting the disqualification of witnesses, contained in the laws of the State, where the language used is broader than that used in respect to voters. The provision in respect to witnesses is that no person sentenced upon a conviction for felony shall be competent to testify in any proceeding, etc., unless he be pardoned by the Governor, etc.1 In Cole v. Cole, it is intimated that a conviction in another State would not, probably, render the testimony of a witness inadmissible by virtue of this statute; and this has been expressly ruled on several occasions at nisi prius, as I am informed, The cases are not reported.3

It is proper to add that the precise question in hand appears to have been presented to the Attorney-General of the State, and the opinion expressed by that officer is in harmony with the conclusion I have reached. See opinion of Attorney-General of State where the Attorney-General says: "I am of the opinion that a conviction for crime, in order to disqualify an elector, must be had under the jurisdiction of, and in the courts of this State, and that a conviction under the Federal laws and in the Federal courts does not work such disqualification." In accordance with these views the demurrer is sustained, and the accused must be discharged.

12 Rev. Stat., p. 701, sec. 23. 250 How. Pr. 59, 66.

3 See, also, Com. v. Green, 17 Mass. 515; Com. v. Hall, 4 Allen, 305.

4 p. 413, and again on p. 524.

ELECTIONS-REFUSING TO ANSWER QUESTIONS.

UNITED STATES v. DAVIS.

[6 Fed. Rep. 682.]

In the United States District Court, District of Massachusetts, 1881.

One is not Guilty of the statutory offense of refusing to give or giving false information to supervisors of election, where the supervisors did not make the inquiries at the place of his residence.

NELSON, D. J. The defendant has been convicted under the Revised Statutes,1 and now moves in arrest of judgment for alleged defects in the indictment. Section 5523 is as follows: "Every person who, during the progress of any verification of any list of the persons who may have registered or voted which is had or made under any of the provisions of title The Elective Franchise,' refuses to answer or refrains from answering, or, answering, knowingly gives false information in respect to any inquiry lawfully made, shall be punishable by imprisonment for not more than thirty days, or by a fine of not more than $100, or by both, and shall pay the costs of the prosecution."

The provisions of the elective franchise title referred to in this section are contained in sections 2016, 2021, and 2026. Section 2026 provides that the chief supervisor of elections "shall require of the supervisors of elections, when necessary, lists of the persons who may register and vote, or either, in their respective election districts or voting precincts, and cause the names of those upon any such list whose right to register or vote is honestly doubted, to be verified by proper inquiry and examination at the respective places by them assigned as their residences." Section 2216 makes it the duty of supervisors of elections "to make, when required, the lists, or either of them, provided for in section 2026, and verify the same;" and section 2021 provides for the appointment of special deputy marshals, "whose duty it shall be, when required thereto, to aid and assist the supervisors of elections in the verification of any list of persons who may have registered or voted."

These several provisions were originally parts of the act of February 28, 1871, and though separated in the revision of the statutes, they should evidently be construed together to ascertain their true meaning and effect. Taken together their meaning is very plain. They provide for a verification, by the supervisors of elections, under the direction of the chief supervisor, of the lists of persons who may register and vote in the several election districts or voting precincts, and direct the man

1 sec. 5523.

1

ner in which the verification shall be conducted. It is to be made by the supervisors by inquiry and examination at the places assigned in the registration or voting lists by the persons whose names are registered thereon as their places of residence. It is made the duty of all persons found by the supervisors at such places of residence, in the progress of their verification, in response to proper inquiries, to give to the supervisors all the information in their possession in regard to the persons registered as residing there, bearing upon their eligibility as voters. Neglect or refusal to answer such inquiries, or the giving of false information, is made a misdemeanor, punishable by fine and imprisonment. The inquiries can be lawfully made only at the places assigned as residences, and no person is bound, under the penalties of section 5523, to answer the inquiries or give the information elsewhere. The indictment should correspond with the statute, and should set forth the offense according to its terms.

The evidence at the trial showed that the inquiry of the supervisor to the defendant, which he refused to answer, was made at the place assigned by him in the registration list as his place of residence. But the indictment fails to aver this with sufficient certainty, according to the rules of criminal pleading. The allegation is that the supervisor made an inquiry, which was a lawful inquiry, of the defendant, which the defendant unlawfully refused to answer. But it designates no place where the inquiry was made, except that it was made in the city of Boston. The indictment, therefore, describes no offense punishable by the laws of the United States.

The omission is matter of substance and not of form only, and the indictment is not aided by section 1025, which provides that no indictment shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected, by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.

Judgment arrested.

ELECTIONS-PREVENTING EXERCISE OF SUFFRAGE

UNITED STATES v. CAHILL.

[4 McCrary, 200.]

In the United States Circuit Court, Eastern District of Missouri, 1881.

An Indictment under the United States Laws for unlawfully preventing a voter from exercising the right of suffrage will lie only where the interference took place at a Congressional election.

Indictment for violation of election law under the Revised Statutes.1

1 sec. 5511.

TREAT, D. J. The demurrer is special to each of the two counts: (1) The facts on which depended the right of Batton to vote are not set out; (2) there is no allegation that the election was for a representative in Congress. The indictment is designed to charge an offense under section 5511,1 for unlawfully preventing a qualified voter from freely exercising the right of suffrage, etc.

It is contended by defendant that it is not sufficient in an indictment to charge generally that the person whose vote was refused, or who was prevented from voting, was "a qualified voter," but that the several facts on which his right to vote depended should be set out. Reference has been made to several authorities in support of the proposition. While it may be conceded that where a person offering to vote sues an officer of election for refusing his vote, or where he is the party plaintiff whose right of action is dependent on his legal qualification, he should set out the facts on which his qualification rests; yet that rule does not apply where, as in this case, the defendant is not the voter, but a defendant in a criminal proceeding against him for unlawfully interfering with the voter. It will devolve on the United States at the trial to show affirmatively that Batton was a legally qualified voter, entitled to cast his vote for a representative in Congress at the election named, but the detailed facts on which his qualification depends need not be averred in the indictment.

The other ground of demurrer is well taken. True, an indictment, using the same terms, was before the United States Supreme Court, but its attention was not directed to the point now under consideration, nor does it appear what, in that case, was the full language of the court.

It is clear that no Federal statute can interfere with voters, except at an election for representatives in Congress, and then only as to their protection in voting for a representative in Congress. Hence it is essential that it be charged in the indictment that "at an election for representative," etc., the offense was committed; and it is not sufficient to allege that "at an election at which a representative was voted for," etc. It may be that the election in question was for some other purpose, over which the Federal government had no control, and with which it had no right to interfere. But the defect is still graver when it is averred that at an election where a representative was voted for, Batton was a qualified voter, etc., and entitled to vote, and that, when proceeding to offer and deposit his ballot, he was prevented by threats and intimidation; yet nowhere is it alleged that he offered or proposed, or was about to vote for, or was qualified to vote for, a representative in Congress.

1 Revised Statutes.

It would hardly be contended that because Congress may pass a law to control Congressional elections and protect voters against unlawful or violent interference with the right to vote for Congressional representatives, therefore, whatever occurred at an election which did not interfere with such a right must be considered within the terms of the act, because the words are general, viz.: "Unlawfully prevents any qualified voter of any State from freely exercising the right of suffrage," etc. The language must necessarily be so construed as to confine the provisions of the statute within constitutional limits.

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There was a suggestion made by defendant's counsel in argument as to the so-called threat, as set out in the second count; but as the special demurrer raises no such point, the court does not pass upon it. It may be that the specific language should be construed as qualifying the general averment; and if, without further averments, the specific language was not an unlawful threat, the indictment would fall.

While it is of great importance that purity of elections and the free exercise of the right of suffrage be enforced in all cases, yet it is equally important that there be no usurpation of jurisdiction, one tribunal with another. So far as the act of Congress takes supervision of elections for representatives in Congress, there is no difficulty as to Federal jurisdiction; yet there may be mixed elections, or elections at which local officers alone are to be voted for.

If, at a mixed election, a voter appears to cast his ballot solely for a state or municipal office, and is interfered with in his attempted exercise of that privilege, or if, under the State law, he is qualified to vote for local officers, and not for a representative in Congress, and is interfered with, does the act of Congress apply? Hence, should not the indictment specify that the election was for a representative in Congress; that the voter was qualified to vote for a representative at the time and place averred; that said qualified voter appeared at the polls and offered or attempted to vote for a representative in Congress; and that he was unlawfully interfered with in such attempted exercise of that specified right?

If this be not so, then the Federal jurisdiction must be held to extend to whatever local elections are held at which any one casts a vote for a representative in Congress, whether the election be for that purpose or not; and that if at such an election a vote is cast for such a representative, any one who appears to vote for a local officer can not have his vote challenged without incurring the penalty of the Federal law. These extreme cases are stated to illustrate the position that the indictment must contain needed averments to bring the alleged offense within the constitution and laws of the United States. The court holds 2 DEFENCES. 10

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