7 R.I. 349 | R.I. | 1863
The gist of the offence charged by this indictment against the prisoner is, not merely that he voted at the spring election in Portsmouth without being qualified to vote, but that he did sofraudulently, that is, with knowledge that he was unqualified. In this view of the offence, we are all of opinion that the evidence did not support the indictment. The prisoner's name was upon the voting list prepared by the canvassers for the moderator of the town meeting. Being a resident of Portsmouth, his right, under the constitution, to vote there in 1862, depended upon whether, being registered as a voter in that town on or before the last day of December, 1861, he had, for and within the year next preceding the time he offered to vote, paid a tax or taxes assessed against him to the amount of one dollar. *353 He had duly paid, in labor, a road tax to the amount of seventy cents, assessed against him for 1861, and had also paid, within the year, to the collector of taxes, upon his call, a personal property tax to the amount of eighty-two cents. The defect of qualification is supposed to exist in the fact that this last tax was, by the assessors' book, assessed against Isaac Borden, and not against him. It was, in fact, with a tax on real estate, assessed against "Isaac Borden by J.E. Macomber," whatever that assessment means. However ambiguous and irregular such an assessment may be, three out of four of the assessors swore, that what they intended by it was, to assess the prisoner eighty-two cents for $1000, personal property, and Borden, whose tenant the prisoner was, for the tax on $4,000 of real estate. The other evidence supports the view that such was their intent. Some years before, the prisoner had been assessed by his own name, standing in its proper alphabetical place on the assessment book, for $1000, personal property; but for the last few years, as we should judge from the testimony, since he had become the tenant of Borden, for the same sum, — his name being coupled with Borden's, — against whom the assessment was designed to charge the tax of the real estate, whilst Borden was separately assessed for $40,000, personal estate. Now, the question was not, as urged by the Attorney General, merely, or principally, whether this was a rigidly correct assessment of a personal property tax for $1000 against the prisoner, but whether, under such circumstances, he might not fairly deem himself assessed for the tax, especially when the collector had called upon him for it, and he had paid it within the year before he voted as he had done in years before, and the canvassers had put his name upon the voting list.
It is insisted, that as the facts were called to the attention of the prisoner before he voted, by a person who challenged his vote and threatened to prosecute him if he voted, that the prisoner voted at his peril. It is evident that the prisoner regarded, as he treated, this, as an attempt to scare him from the exercise of his right; and we are yet to learn that a mistake about one's rights, with full knowledge of all the facts relating to them, and an honest assertion of them, is equivalent to fraud, under such a *354 statute as this. The statute, 9 Anne, c. 10, § 40, visited a penalty upon a postmaster, who wittingly, willingly andknowingly detained letters, and caused them to be detained and opened; but in Meirelles v. Banning, 2 Barn. Adolph. 909, the King's Bench held that a postmaster who delivered a bankrupt's letters to his assignee, believing that the assignee was entitled to them for the purposes of the commission, and such having been the practice of the office for more than thirty years, was not liable to the penalty. It is not the mere act or neglect, but the offence, consisting of the bad intent coupled with it which the law, in such cases, designs to punish. The distinction between acts done honestly, under a mistaken sense of right, and acts done fraudulently, with a consciousness of wrong, is familiar to every one who has had occasion to trace the boundary line between trespass and larceny.
All the evidence in this case, as reported to us, tends to show that the prisoner, reputed to be an honest man, voted under the belief that he had a right to do so; and without canvassing whether the property tax that he paid to the collector was regularly and properly assessed against him, we see no reason to doubt that he thought that it was; and accordingly, on that ground, order the verdict against him to be set aside, and a new trial to be granted to him, in the Court of Common Pleas for the county of Newport. *355