10 Neb. 243 | Neb. | 1880
Counsel for the state are manifestly mistaken in supposing that Gandy, the plaintiff in error, was convicted of two distinct offenses. The indictment on which he was tried, it is true, contained two counts, but both of them were framed under sec. 5440 of the Revised Statutes of the United States. Neither count purports to charge a violation of section 5448, but the gravamen of each is an alleged conspiracy to violate a law of the United States, and this only.
In the first count the alleged conspiracy was that said Gandy and his co-defendant, McKinney, “ did unlawfully and fraudulently represent to one Israel R. Cummings, that he, the said Pierce H. McKinney, alias J. S. Allison,, was a United States revenue officer for the district óf Nebraska,” etc., whereby they were enabled to and did fraudulently extort from said Cummings the sum of twenty-five dollars as a revenue tax due from him as a retail dealer in spirituous, vinous, and malt liquors, and the further sum of three hundred and eighty dollars, in full satisfaction of an alleged violation by said Cummings of said revenue law in retailing such liquors, without having first paid the special tax required by law.
The second count simply charges a conspiracy between the same parties to “ personate the United States marshal, and a United States revenue officer of the
In neither of these counts is it charged that Gandy “ falsely represented himself to he a revenue officer,” which would have been an indispensable averment in an indictment under section 5448. This section is in these words : “ Every person who falsely represents himself to be a revenue officer, and in such assumed character demands and receives any money or other article of value from any person for any duty or tax due to the United States, or for any violation or pretended violation of any revenue law of the United States, shall be deemed guilty of a felony, and shall be fined five hundred dollars, and imprisoned not less than six months, and not more than two years.”
That the judge of the court, in which the alleged conviction of Gandy took place, did not consider that either count of the indictment was based upon this section, is evident from the judgment which he rendered on the verdict of guilty on “ both counts of the indictment ” returned by the jury.
The judgment was that Gandy should “ pay a fine of $1,000, and the costs of this prosecution, and that he be committed for the period of ninety days from and including the sixth day of May, 1872.” This it will be seen conforms in no respect to the judgment required by section 5448, which is a fine of just five hundred dollars, neither more nor less, together with imprisonment for “ not less than six months,” but is entirely harmonious with section 5440, which is in these words, viz: “ If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for
That the prosecution and conviction of Gandy was under this section, and none other, is made very clear we think by a proper understanding of the indictment, and the penalty imposed upon him thereunder. It only remains, therefore, for us to consider what effect, if any, such conviction in 1872 had upon his qualification for the office in question at the time of his election in 1879. That such qualification depended upon his being entitled, at that election, to exercise the elective franchise, is conceded.
In the decision of this question it is unnecessary to determine the full extent to which disqualification to vote or hold office is carried by our laws, or whether a person who is in all other respects qualified to vote can be debarred of that right by reason of his having been convicted of a felony under the law of a sister state, or of a foreign country.
Howsoever that may be, it is clear that a person convicted of a felony, under a law of this state or of the United States, is not qualified to vote unless he be “ restored to civil rights.” This much is settled by the paramount law, the Constitution, sec. 2, Art. VIII. of which declares that “No person shall be qualified to vote who is non compos mentis, or who has been convicted of treason, or felony, under the law of this state or of the United States, unless restored to civil rights.” And this provision was in force at the date of Gandy’s election, and governed regardless of what the nominal legislation on the same subject may have been, inasmuch as it was entirely unaffected thereby.
, Had the conviction been under section 5448, as contended by counsel for the state, there could have been no question as to its felonious character, for it is there expressly declared that the offender against its provisions “ shall be deemed guilty of a felony.” No similar provision being found in section 5440, and there being nothing necessarily infamous in the punishment therein provided, we must hold that Gandy was not convicted of a felony, but of a misdemeanor merely, and was fully qualified to hold the office to which he was elected.
As bearing upon this question, our attention was directed to section 5441, of the Revised Statutes of the United States, which provides that “ in every case where any person convicted of any offense against the United States is sentenced to imprisonment for a longer period than one year, the court by which the. sentence is passed may order the same to be executed in any1 state jail or penitentiary within the district or state where such court is held, the use of which jail or penitentiary is allowed by the legislature of the state for that purpose.”
It was urged with considerable earnestness by counsel for the state in argument, that inasmuch as the maximum imprisonment which might have been im
This, we think, would be giving too much importance to mere possibilities, and cannot be indulged in, especially when it is sought thereby to deprive a person of civil rights, which, next to life and personal liberty, are the most sacred. Besides, if it were intended by section 5441 to enable the court, in affixing the punishment for a given offense, in its discretion to consider it either as a felony or as a mere misdemeanor, then we think the rule adopted by the supreme court of California'in the case of People v. Cornell, 16 Cal., 187, should be applied, viz.: that the punishment actually inflicted must determine the grade of that offense. This rule certainly has the merit of being both just and humane.
A question is also presented upon the refusal of the court below to grant a supersedeas of its j udgment of ouster, or stay of proceedings, until the case could be reviewed here. No statute has been referred to by counsel, nor do we know of one that entitles a party to such an order -in this sort of proceeding, yet we doubt not that it is within the province of the trial court, in its discretion, to grant it; but its refusal to do so cannot be made a subject for review in this court. Such being our views, the judgment of the court below must be reversed, and the information dismissed at the costs of the relator.
Judgment accordingly.