126 Ky. 183 | Ky. Ct. App. | 1907
Opinion op the Court by
Reversing.
Tlie following indictment was returned bv tlie grand jury of Jefferson county against appellee: “The grand jurors of the county of Jefferson, in tlie name and by the authority of the Commonwealth of Kentucky, acense Frank Gr. Drewry of the crime of unlawfully and feloniously certifying to an improper certificate of election committed in manner and form as follows., to-wit: That on the 7th day of November, 1905, there was held under the laws of the State of Kentucky, in the city of Louisville, in the county of Jefferson, an election of county, city and legislative
To this indictment a demurrer was sustained, and in support of the ruling of the trial judge it is insisted that the indictment is fatally defective, because it has no caption; second,. because the accusatory part of the indictment states no, offense; third, because the indictment does not properly charge that appellee was an officer of election, or that an election was held in the precinct, but does affirmatively charge that there was held in this precinct á pretended election, which was illegal and void. These several objections we will notice in the order named.
Section 1585a of the Kentucky Statutes of 1903 provides that: “Any officer of the election who shall knowingly and wilfully give or certify to an improper certificate of the election as herein required * * * shall be guilty of felony, and upon conviction thereof
We do not regard the objection that tbe indictment does not sufficiently aver that appellee was an officer of election well taken. It charges in terms that an election was held under tbe laws of tbe State, and that “officers of election were appointed under and in accordance with these laws, to serve as such in tbe Thirty-Eight precinct of tbe Twelfth Ward, and that tbe said Prank G. Drewry was duly so appointed to serve as clerk of election in said precinct.” This allegation sufficiently stated bis connection as an officer with tbe election. It was not necessary that tbe indictment should set out when or by whom be was appointed or selected. Tbe averment that be was duly appointed to. serve as clerk of tbe election is more than a mere conclusion of tbe pleader. It is a substantial statement of fact. It would add nothing to tbe validity of tbe indictment to state with more particularity the facts relating to bis appointment to this office; nor would it give him any fuller information of tbe fact that tbe accusation was for a crime committed as an officer of the election. Commonwealth v. Brown, 93 S. W. 605, 29 Ky. Law Rep. 434. It is distinctly charged that, as such officer Drewry wilfully and knowingly certified that a certain number of votes were cast at the election, when be knew that they bad not been cast; and although tbe indictment is not aptly drawn, and contains an unusually large quantity of surplus matter, yet it states no offense under tbe statute.
In considering tbe sufficiency of an indictment, tbe whole of it must be looked to. Tbe essential and indispensable requisites in tbe particulars under consideration are that it shall contain “a statement of
In addition to these general observations applicable to all indictments, it is especially provided, in section 1591 of the Kentucky Statutes of 1903, that the provisons of.the chapter relating to elections “shall be liberally construed so as to prevent any evasion of its prohibitions and penalties by shifts or device.” This statute was enacted to prevent persons charged with offenses against the election laws from escaping just punishment on mere technicalities and minor irregularities ; and while this statute was not intended to, and does not, abrogate the Code provisions relating to the essential elements necessary to constitute a good indictment, it should be read in connection with, them, as illustrating the legislative intent concerning prosecutions of offenses against the election laws.
In our opinion the lower court erred in sustaining