Moore v. State , 52 Ala. 424 ( 1875 )

MANNING, J.

1. The objection to the oath administered to the jury that tried defendant is not well taken. The record recites that they were “ duly sworn according to law, to try the issue joined,” &c., which is sufficient. The record does not purport to set forth the oath at length as administered.

2. There was no error in allowing the persons who acted as challengers on election day to prove that they were such, and received notice of their appointment from the sheriff, orally. A challenger receives his appointment but for a day; the sheriff of whom he received the notice was one of the officials authorized to make the appointment; no record evidence of this is required to be kept; and if a challenger fails to attend at the polls, the inspectors can designate another person to take his place. Section 34 of “ Act to regulate elections in the State of Alabama,” approved April 22, 1873.

In Jacob v. The United States (1 Brock. 520), concerning the authority of a certain person, as collector of revenue, to cause a seizure of the property of a distiller, for violation of the law, Chief Justice Marshall, after consideration, held that proof that he had been and was acting as such officer was sufficient. “ That he has acted notoriously as a public officer has been deemed,” says Chief' Justice Marshall, “primé facie evidence of his character, without producing his commission or appointment.”

3. The judge of the city court erred in not giving to the jury’ the written charges asked oil behalf of defendant, and numbered 1, 2, 3, and 5, respectively.: The accused was charged with perjury, and the only particular, as the evidence shows, in which his oath was impeached, was in the question of his age, whether or not on election day he was twenty-one years old. If the jury believed from the evidence that he was twenty-one years old, they should not have found him guilty upon the imagination or belief that he was recklessly swearing to what he did not know or believe. In this prosecution, he should not have been convicted, if the oath he had taken was not false in fact.

4. There was no error in refusing charge numbered 4. That defendant did not vote after taking a false oath to enable him to do so, might be considered in mitigating the penalty, but does not entitle him to a verdict of acquittal.

The judgment of the court below is reversed and the cause remanded. The prisoner will be kept in custody until discharged by due course of law.