68 So. 608 | La. | 1915
Defendant was prosecuted under an indictment which reads, in part:
“The grand jurors * * * upon their oath, present that one David Schwartz, * * * on or about the 27th day of August [1914] in the parish of Jefferson * * * then and there being, did willfully, unlawfully, untruly, and falsely answer, under oath administered by a commissioner of election, the pertinent question, ‘Are you duly registered and qualified to vote at the Democratic primary election, on August 27, 1914, in the Second ward of the parish of Jefferson?’the said question having been asked by a commissioner of election, and the said misstatement and answer was made with the intention to mislead and deceive the commissioners of election for the purpose of voting in the Democratic primary election held in the Twenty-Eighth judicial district, and particularly in the Second ward of the parish of Jefferson on August 27, 1914, contrary to the form of the statutes,” etc.
He demurred and subsequently filed a motion in arrest of judgment, attacking the indictment for insufficiency of allegation, both in form and substance, as follows:
That it charges no offense known to the laws of the state; that it does not inform defendant of the cause and nature of the accusation against him; that if it is intended to charge him with an offense under section 32 of Act No. 49 of 1906, the indictment sets forth a conclusion of law, and fails to specify the facts and circumstances pertaining to such offense. It fails to allege that defendant was not a qualified voter of ward 2, at the time of said election; or to describe the election at which any false statement was made with sufficient certainty; or to charge with legal certainty that any election was had under any lawful authority; or to allege for what purpose the election was held; or that it was held for any lawful purpose; or to show what answer was made by defendant to the question of the commissioner,
The prosecution is founded upon section 32, of Act 49, of 1906, which reads:
“Sec. 32. * * * That any person offering to vote, who shall, under oath administered by any of the commissioners of such' election, willfully, untruly or falsely answer any pertinent question asked by any election commissioner, or make misstatements, intended to mislead and to deceive the commissioners of election, for the purpose of voting, shall be deemed guilty of a misdemeanor and upon conviction thereof, shall be punished as provided for in section 31 of this act.”
The only person to whom the section, or any part of it, applies is described in the first sis words, which declare, “That any person offering to vote,” etc., but the indictment describes no such person; there being no suggestion in it that defendant offered to vote. The language of the section proceeds, “who shall, under oath administered by any of the commissioners of such election,” meaning some particular, as contradistinguished from any, election; but what particular election? Turning to the title and preceding sections of the act, we conclude that the word, “such,” as thus used, refers to some one of the several “primary” elections for which the act provides but the indictment does not charge that defendant made any false answer “under oath administered by any of the commissioners of” a primary election. It reads “under oath administered by a commissioner of election.” And, again, the inquiry, What election? but here we find no answer. The indictment does not give it, and we are unable to do so. The statute proceeds—
“willfully, untruly or falsely answer any pertinent question asked by any election commissioner, or make misstatements, intended to mislead and to deceive the commissioners of election, for the purpose of voting, shall be deemed guilty,” etc.
The indictment reads—
“did, willfully,, unlawfully, untruly and falsely answer, under oath administered by a commissioner of election, the pertinent question, ‘Are you duly registered and qualified to vote at the Democratic primary election, on August 27, 1914, in the Second ward of the parish of Jefferson? the said question having been asked by a commissioner of election, and the said misstatement and answer was made with the intention to mislead the commissioners of election for the purpose of voting in the Democratic primary election held in the Twenty-Eighth judicial district, and particularly in the Second ward of the parish of Jefferson on August 27, 1914,” etc.
“It is sufficient to follow the words of the statute, when those words describe the acts constituting the offense with such precision and certainty as to fully inform defendant as to the nature, of the charge against which he is to prepare his defense, and to furnish him a complete plea of autre fois acquit, or convict, in bar of*281 another indictment.” Marr’s Or. Jur. of La., p. 408, citing State v. McClanahan, 9 La. Ann. 210; State v. Cason, 20 La. Ann. 48; State v. Flicker, 45 La. Ann. 647, 12 South. 755.
“The charge should be sufficiently specific to enable the defendant to prepare his defense, and, if the mere following of the words of the statute does not give this information, then to charge in the words of the statute is to do no more than to charge a conclusion of law; thus, to charge that defendant did ‘keep a disorderly tavern’ is not sufficient; the indictment should specify in what the disorder consisted.” Id., citing State v. Lubin, 42 La. Ann. 79, 7 South. 68.
Other pertinent authorities cited by defendant’s learned counsel are Marr’s Or. Jur. of La., pp. 414, 415; Clark’s Or. Pr. 259; Bishop’s New Or. Pro. vol. 1, pp. 624, 627; Archibold’s Or. Prac. and PI. (8th Ed.) pp. 275, 276; Joyce on Indictments, pp. 293, 294; State v. Quinn, 136 La. 435, 67 South. 206: State v. Stiles, 5 La. Ann. 326; State v. Hood, 6 La. Ann. 179 ; State v. Read, 6 La. Ann. 227; State v. Durbin, 20 La. Ann. 408; State v. Breaux, 122 La. 521, 47 South. 876; State v. Noel, 125 La. 309, 51 South. 215; Wharton’s Cr. Law, 133; Chit. Or. Law, 283; State v. Palmer, 32 La. Ann. 565; State v. Edson, 10 La. Ann. 229; 15 Cyc. pp. 451, 452; Carter v. State, 55 Ala. 181; Pearce v. State, 1 Sneed. (Term.) 63 Am. Dec. 135; Gandy v. State, 82 Ala. 61, 2 South. 465; State v. Keating, 202 Mo. 197, 100 S. W. 648; Lane v. State, 39 Ohio St. 312; State v. Vincent, 1 Marv. (Del.) page 560, 41 Atl. 199 (1895); Com. v. Degnan, 50 Pa. Super. Ct. (1912) 354; People v. McKenna, 81 Cal. 159, 22 Pac. 488.
It is accordingly ordered and adjudged that the conviction and sentence appealed from be set aside, the demurrer sustained, and the defendant discharged.