52 Ala. 299 | Ala. | 1875
The city court of Mobile was originally established as a criminal court only, having in Mobile county jurisdiction concurrent with the circuit court, “ in the administration of the criminal law.” Pamph. Acts 1845-46, p. 29, § 4. It was authorized at stated times to hold three regular terms annually, and by special adjournment, “ such other terms as may be necessary for dispatch of business.” Ib. 53. The times of holding the regular terms were, from time to time,
The 40th section of the act of April 22d, 1873, entitled “ An act to regulate elections in the State of Alabama,” declares, “ that any person voting more than once at any election held in this State, or depositing more than one ballot for the same office as his vote at such election, or is guilty of any other kind of illegal or fraudulent voting, shall be deemed guilty of a felony,” &c. Pamph. Acts 1872-73, p. 25. The 30th section declares that at all elections the elector must vote by ballot, and the 31st section, that the ballot must be a white paper ticket, on which must be written or printed, or partly written or partly printed, the names for whom the elector intends to vote, and must designate the office for which each person so named is intended by him to be chosen.” Ib. 23.
The indictment contains three counts. The first charges the appellant with having voted more than one time at the last general election. The second charges that at this election, having voted by ballot, once at the sixth ward polls in the city of Mobile, he voted a second time, by ballot, at the seventh ward polls in said city. The third charges that he voted more than once, at said election, by ballot, voting one time at the sixth, and one time at the seventh ward in said city. The difference in the counts is, that the first is a general charge of voting more than once, without naming the places at which the votes were cast, and how cast, whether by ballot or otherwise. The second is more specific, averring the voting was by ballot, and that the first vote was cast at one polling place and the second at another. The third count varies from the second in omitting the order in which the two votes were cast. To each count a demurrer was interposed, and the cause assigned is, that the offence is not described with sufficient certainty, nor the persons or offices for which the votes were given. The demurrer was overruled.
The offence denounced by the statute, and intended to be described in the indictment, is voting more than once. An indictment for a statutory offence is generally sufficient, when it is framed in or pursues the words of the statute. The exception is, if thereby the fact, in the doing or omission of which the offence consists, is not directly and explicitly averred. Voting more than once, at an election held in this State, is the fact constituting the offence. The times of holding the general elections are prescribed by law, and are judicially known. When the indictment charges that at a general election held at
Putting witnesses under the rule, or examining them out of the hearing of each other, is not. a matter of right in parties, but rests in the sound discretion of the court. The order for such examination may be made by the court of its own motion, 'if deemed essential to the discovery of- the truth, and should rarely if ever be withheld, when moved for by either party. If the rule is made, and a witness remains in court in violation of it, intentionally or by mistake, it is discretionary with the court to permit or refuse his examination, and the exercise of
The statute required that three inspectors should be appointed to attend and conduct an election, at each precinct or ballot-box, and the appointment of two clerks. When a vote was cast, one of the inspectors must have received it, and distinctly and audibly called the name of the voter, which the clerks were required to enter on separate lists called “ poll-lists,” and the ballot numbered with the number corresponding to the number of the voter’s name on the “ poll-lists.” Pamph. Acts 1872-3, p. 21, § 26; p. 21, §§ 32, 33. The poll-lists of the seventh ward were not introduced by the State, but by the defendant, and his name did not appear upon them. Neither the inspectors nor clerks of either of the polling places, at which it is alleged the defendant voted, were introduced as witnesses ; but the State proved by witnesses that they saw the defendant vote at each of the polling places. The court charged the jury, that it was not material nor necessary for the State to introduce any of the inspectors, and that the poll-lists were of no peculiar value as evidence, and had no higher grade than oral evidence.
The present statute is not materially variant from the acts of 1815 and 1819. Aik. Dig. p. 138-142. The duties of inspectors and clerks were defined under those statutes, and the mode of voting prescribed, as defined a.nd prescribed in the statute of 1872-3, under which the indictment is found. Under those statutes, illegal voting, whether committed by voting more than once, or voting without the requisite qualifications, was punishable by a pecuniary penalty, recoverable by a qui tarn action. In Blackwell v. Thompson (2 Stew. & Port. 348), which was a qui tarn action for voting at an election without legal qualifications, it was held, the act of voting was not complete until the ballot was deposited in the box, and the name of the voter entered on the poll-lists kept by the clerks ; and that before a conviction could be had, the poll-list, which was the highest evidence of the vote, must be produced, or account given of its absence. The poll-lists are required to be made and kept for the express purpose of showing who are the voters at an election. They are made by sworn officers, under the supervision of sworn officers, while the act of voting is being done, and as evidence of the act; of consequence, they
If it does not appear from the poll-lists that the defendant voted in bis real name, or in the name by which he is indicted, nor that there is a name on the poll-lists representing the baL lot cast by him, the offence of illegal voting has not been committed. ; A ballot found in the ballot-box, without a name on the poll-lists corresponding to it or with which it could be connected, could not be counted as a vote, could not affect the result of an election, and would be no more than a blank piece of paper. To sustain the charge against the defendant, it was indispensable to produce the poll-lists, and to have shown that on them appeared the name of the defendant as casting two votes, on names which he gave or recognized as his, corresponding with ballots received from him and deposited in the ballot-box. The charge given was therefore erroneous, in asserting the poll-lists were of no value as evidence, and were of no-higher grade than oral evidence. It is not necessary to notice the refusals to charge as requested by the appellant. For the error in the charge given, the judgment of conviction is reversed and the cause remanded. The defendant will remain in custody, until discharged by due course of >law.