| Ill. | Jan 15, 1880
delivered the opinion of the Court:
O
An election was held in the village of Gibson, in the county of Ford, in this State, on the 16th day of April, 1878, for the election of trustees and town clerk. One Selberg offered his vote, and, it being challenged, it was rejected, and plaintiff in error filed an affidavit of his residence, to enable him to vote. He was afterwards indicted for perjury, tried, convicted, and sentenced to the penitentiary for one year. To reverse that judgment he prosecutes error.
It is insisted that the second count of the indictment under which the conviction was had is insufficient, and the court below erred in refusing to quash it; that, inasmuch as it is not charged that the affidavit was knowingly made, it is vicious, under the 80th section of the Election law.' That section provides, that if any witness sworn under that chapter shall knowingly, wilfully and corruptly swear falsely, he shall be deemed guilty of perjury, etc. The 225th section of the Criminal Code, in defining perjury, omits the word “ knowingly,” and only requires the oath to be wilfully and corruptly false; and it is believed that such is the definition of most, if not all, of the criminal codes of the various States of the Union. It is difficult to comprehend how a person can wilfully and corruptly swear falsely without doing so knowingly. The word “wilfully” usually implies intention as well as deliberation and purpose, and if the purpose was to swear falsely, it must follow that it was done knowingly; but the indictment is sufficient under the 408th section of the Crimininal Code, which provides, that if the presentment be made in the language of the statute, or so plainly that the nature of the offence may be easily understood by the jury, it shall be sufficient; and this presentment complies with that requirement, and must be held good.
It is urged that the second count does not sufficiently aver that the election board was legally organized according to law to receive votes, etc. It does aver that there was a certain election for trustees and village clerk for the village of Gibson, called and held in pursuance of law therein. This is an averment that the board was legally constituted. If it was not, then it would not have been held in pursuance of law. It is also averred that J. B. Goshorn had full power aud authority to administer the oath as judge of the election. This averment is comprehensive, and if he was not a judge of the election, he could not lawfully administer the oath; and if the board had not been organized, he would not have been a judge of the election, and would not have had lawful power and authority to swear plaintiff in error.
It requires but a superficial knowledge of pleading to understand that in such a case there need be no averment as to the manner in which the board was organized. It is not required that it be averred who the officer was who administered the oath, and to set it out, or to aver the officer who administered the oath had been duly elected, setting out his commission and oath of office. To require such averments would lead back indefinitely and collaterally, without end, to find a point where it could be absolutely known that the officer acting was undoubtedly legally elected. Where persons are found acting and performing the functions of public officers, the law presumes that they are rightfully acting, and proof is not required of that fact in any collateral proceeding. These persons were acting, it is averred, as an election board, and proof of that fact was all that was required, and all know that the proof must never be more limited than the averment. The one must be as broad and no broader than the other. This count in this respect was sufficient.
It is, however, insisted that the count was bad under the decision in the case of Morrill v. The People, 32 Ill. 499" date_filed="1863-11-15" court="Ill." case_name="Morrell v. People">32 Ill. 499. This indictment is by no means artificially drawn, but we think it is not obnoxious to the objection that existed in Morrill’s case. There, no averment was made that there was pending a proceeding when the affidavit was made in which it could be used, or that any such proceeding afterwards existed. It, in that case, did not charge that a motion for a continuance had been made, or was ever made, and if no such motion was pending, or was afterwards made, there was no lawful occasion for making the affidavit. But here, it is averred that Selberg had offered to vote and his vote had been rejected, and that thereupon it became material that plaintiff in error should make an affidavit that Selberg was a resident of the election precinct, and that he did make and swear to it. This, we think, avers and shows its materiality. It shows the effort to vote was made and disallowed, and the law then required that a voter of the precinct should make such an affidavit before he could vote. There is nothing showing Selberg had withdrawn his application. Hence its materiality is shown. In that case it was not, nor could it be, material until it was shown a matter was pending in which it could be lawfully used, and none such was shown. But here, the matter is shown to have been before the election board, and Selberg could not vote until such an affidavit was made and presented to the board. Hence its materiality. The lawful occasion is, we think, sufficiently averred.
It is also urged that the court erred in its definition of the word resident. It is not objected that the instruction does not follow the statute, but it is claimed that the statute is unconstitutional. The 66th section of the Election law defines a residence to be a permanent abode. The first section of article seven of the organic law declares that every person who shall have resided in the State, etc., for the periods named, and being a citizen, etc., shall be entitled to vote. It is claimed that the terms residence, and permanent abode, are entirely different, and the latter term requires more than the former. But in the case of Spragins v. Houghton, 2 Scam. 377, the court said : “ Every man is a resident who has taken up his permanent abode in the State.” We must presume the framers of the constitution used the word in the sense in which it had been defined in that case. There was, therefore, no error in instructing the jury that Selberg must have had a permanent abode in the village to have such a residence as entitled him to vote, as the law is not repugnant to the fundamental law of the State.
It is urged that the court erred in giving the first and second instructions for the people. They state that “declarations made by Selberg to Johnson as to where he resided, or what place he called his home, or where he got his washing done, gave no such knowledge as the law requires upon which to base an affidavit that Selberg had resided there thirty days next preceding said election, or that he, said Selberg, was an actual bona fide resident there. If plaintiff in error honestly believed, as he stated in his affidavit, that Selberg was a bona fide resident of the election district and had been for thirty days, then he was not guilty of wilful and corrupt perjury. But the jury, in determining the fairness and honesty of that belief, were bound to look to all of the evidence showing the circumstances under which the oath was taken. If from the evidence it appeared that a reasonable man could not have held an honest belief of a bona fide residence, then they would be compelled to find the oath false and that he intended to swear falsely. Aman can not corruptly swear falsely and shield himself from the penalty of perjury by stating in his affidavit that he believes his statement to be true, nor can he escape by showing slight facts which are insufficient to create a reasonable belief. If, on the consideration of all the evidence, the jury believe that it was only a pretence that he believed statements of others, which are contradicted by other circumstances, they should give no weight to such pretences. A person has no right to act recklessly, shut his eyes to facts and evidence and wholly ignore them, and then escape the consequences of his reckless disregard of truth by pretence that trifling facts, improbable statements of others, and evidence that could convince no one, had led him to believe that his statements are true.
All know that we can not look into and inspect the mind of another, but we can judge of his motives by his acts. And it is true that this is a crime hard to establish, but the motives may be established by the circumstances' under which accused takes the oath. On the truth or falsehood of evidence all of our rights depend. By false evidence all rights, whether of life, liberty, reputation or property, depend. Hence the crime has been denounced as the most infamous and detestable. Persons may guard and protect themselves against most other crimes, but against this they have and can have no security. And to permit persons to escape on a mere pretence that they believed the false statements, is highly calculated to subject all classes of persons to the most grievous wrongs. The belief of the accused should be reasonable, and not capricious and wilfully entertained without reasonably fair evidence upon which it may be based. But in these instructions the court invaded the province of the jury by telling them the evidence was inadequate to create an honest belief in the accused. That was for the jury to determine and not for the court.
Objections are made to the people’s ninth instruction. It is insisted that it is not sufficiently limited. By it the jury are told that if they believed the defendant swore wilfully false as to any of the facts in issue in the case, they might disregard all of his testimony unless corroborated, etc. It is claimed that they should have been instructed that he so swore as to some material fact, before they might disregard his evidence unless corroborated. We are unable to perceive any well founded distinction in telling them that the evidence must be wilfully false as to any of the facts in issue, and as to material facts in the case. All facts in issue are undoubtedly material, because the whole case depends upon the facts in issue. There was no error in giving this instruction.
But for the error indicated, the judgment of the court below is reversed and the cause remanded.
Judgment reversed.