12 Wis. 519 | Wis. | 1860
By the Court,
Hone of the authorities cited by the counsel for the plaintiffs in error sustain the position that, where knowledge of the disqualification of any of the grand jurors by whom the indictment was preferred, does not come to the accused until after the trial and verdict, he may then avail himself of such defect by motion in arrest of judgment. Whilst in some of the states it is held that ■ obj ections like the present, which do not go to the character of the juror, but are strictly legal and technical in their na
In giving a construction to the statute under which the indictment was found, we cannot adopt the distinction made by counsel between the positive and negative qualities of the voter, or those things which under the constitution and laws are said to give, and those which are said to take away from the individual, the elective franchise. We cannot for a moment believe that the legislature, in framing and passing the statute, contemplated or intended to recognize such a distinction. On the contrary it seems to us plain that the word “ qualifications ” was not used in the limited sense in which it occurs in the constitution, but with reference to its more enlarged meaning when all the laws touching the privilege of the party offering to vote were applied to the facts of the case. Violations of the laws with respect to those things which are necessary to confer, and those which are declared to destroy the privilege where it once existed, are equally within the mischiefs which the act was designed to prevent; and the restriction of its operation to cases of the first class would manifestly defeat the intention of the legislature. The language used, when understood according to its ordinary grammatical signification, is broad enough' to cover both. The words “ any person not having all the qualifications of an elector ” are equivalent in their effect and meaning to the words any person disqualified, incapacitated or disentitled, from any of the causes fixed by law, and refer of course to the state or condition of the person at the time his vote is received.
It was not necessary to state in the indictment that the person from whom the vote was received did not take the oath prescribed by section 36, of chapter 7 of the Revised Statutes. The rule seems to be universal that where the exception is in a separate section of the statute, or in a proviso which is distinct from the enacting clause, it then becomes a matter of defense which the prosecution need not anticipate or notice. In order to become material for him to negative, it must be contained in and form a part of the enacting clause itself. Here the enacting clause, so far as the offense charged is concerned, is the first division of section 42, chapter 169, and the exception is found in section 39jof chap. 7. No direct reference is made in the enacting clause to section 39 or any other part of chapter. 7, nor is the same or any part of it incorporated into it. It is true that we are obliged to look to chapter 7 to ascertain when an offense has been committed, and the defendants, in a proper case, might be compelled to rely on its provisions to confirm their innocence ; but this does not make that chapter a part of the enacting clause, as was,contended by counsel. Counsel referred, and very properly, to the provisions of the constitution to ascertain what were the qualifications of the elector, and if it be true that chap. 7 be a part of the enacting clause, then why is not the constitution and all other laws which have a bearing upon the question ? To hold that the prosecutor was in this case bound to aver that Pierce did not take the oath prescribed by section 36, would be to impose on him the intolerable burden of denying in advance all the defenses which the accused might by law set up or urge. It was properly omitted in the indictment.
The objection of duplicity is untenable. The rule is well settled that, where a statute makes either' of two or more distinct acts, connected with the same general offense and subject to the same measure and kind of punishment, indictable separately and as distinct crimes, when each shall have been committed by different persons or at different times, they may, when committed by the same person at the
It is very possible, as was contended by the counsel for the state, that the language of the record does not express the views of the learned judge who presided at the trial in the circuit, nor accurately convey the ideas which he intended to give to the jury, but that is a matter which we cannot notice. "We must be governed by the record as we find it, and by the charge as we understand and as we suppose the jury must have understood it. According to the record, we