Commonwealth v. Connelly , 1 Rep. Cont. Elect. Case. 154 ( 1895 )

Lathrop, J.

These are two complaints, each in two counts, under the St. of 1893, c. 417, § 321, the first for falsely making, and the second for filing, knowing the same to be falsely made, a nomination paper. The material parts of § 321 are as follows: “ Whoever falsely makes . . . any certificate of nomination or nomination paper, or any part thereof, ... or files any certificate of nomination or nomination paper, . . . knowing the same or any part thereof to be falsely made, . . . shall be punished,” etc.

Motions were made to quash the complaints because no fraudulent intent was alleged either in the making or the filing of the paper, and because the manner or means in which the paper was falsely made was not alleged.

We are of opinion that the motions to quash the complaints were rightly overruled. The offences charged of making and of filing respectively are purely statutory offences, and it was enough to charge them in the language of the statute.

In Tully v. Commonwealth, 4 Met. 357, it was said by Chief Justice Shaw: “ When the statute punishes an offence, by its legal designation, without enumerating the acts which constitute it, then it is necessary to use the terms which technically charge the offence named, at common law. . . . But we think this is not necessary, when the statute describes the whole offence, and the indictment charges the crime in the words of the statute.” See also Commonwealth v. Harris, 13 Allen, 534, 539; Commonwealth v. Barrett, 108 Mass. 302.

We have no occasion to consider whether the first count of the first complaint sufficiently sets forth in what manner or by what means the defendant falsely made said nomination papers, for the manner and means-are fully set forth in the second count. The counts are for the same offence, and the motion to quash is to the whole complaint, and not to any particular count thereof.

The gist of the offence in the second complaint is that the defendant filed the nomination paper knowing the same to be falsely made.

As to the first ground assigned in the motion to quash, the authorities above cited show that it was sufficient to set out the offence in the words of the statute.

The second complaint does not set out, in either count, in detail, in what respect the nomination paper was falsely made. But the offence charged is purely a statutory offence, and it was enough to charge it in the words of the statute. Tully v. Commonwealth, ubi supra. Commonwealth v. Ferry, 146 Mass. 203, 208.

The remaining question is whether the judge erred in refusing to instruct the jury in each case to return a verdict of not guilty. Section 78 of the St. of 1893, c. 417, provides: “Every voter signing a nomination paper shall sign the same in person, and shall add to his signature his place of residence, with the street and number thereof, if any.” The question is what is meant by the words “ shall sign the same in person.” The natural meaning of the statute is that a voter shall, with his own hand, write his name and address. If anything less than this is permitted, the signing must be done at the request of the voter and in his presence. Previous authority or- subsequent ratification is not enough. To hold otherwise would be to give no effect to the words “in person.” There is nothing in the agreed facts to show that any one of the six names written by the defendant was written in the presence of the voter to whom it belonged.

No fraudulent intent is necessary to constitute'the offence. It is immaterial that the defendant did not intend to break the law. It is enough that he did the things made offences by the statute. Commonwealth v. Farren, 9 Allen, 489. Commonwealth v. Goodman, 97 Mass. 117. Commonwealth v. Raymond, 97 Mass. 567. Commonwealth v. Emmons, 98 Mass. 6. Commonwealth v. Wentworth, 118 Mass. 441. Commonwealth v. Shea, 150 Mass. 314, 315. Commonwealth v. Gray, 150 Mass. 327. Commonwealth v. Warren, 160 Mass. 533.

When, therefore, the defendant signed the names of the six voters to the nomination paper he falsely made such paper, and when he filed such paper he filed a falsely made nomination paper, however innocent his intention may have been.

It is contended, however, that, as it is admitted that the defendant did not know that the paper was falsely made other than that he signed the names as before stated, believing that he was authorized so to do, and that it was lawful and proper for him to file the paper, the jury would not be warranted in convicting him of the offence set forth in the second complaint.

It was undoubtedly incumbent upon the government to prove that when the defendant filed the paper he knew that it was falsely made. But this is not the case of one person making the paper and another person filing it. The defendant himself made the paper and filed' it. The statute points out how the paper is to be made, namely, that it is to be signed by the voters “ in person.” He is presumed to know what the statute requires, and what the statute means. When the government had shown the facts, the presumptions of law warranted a conviction.

The case of Commonwealth v. Bradford, 9 Met. 268, relied upon by the defendant, was an indictment under the Rev. Sts. c. 4, § 6, which provided that, “ if any person, knowing himself not to be a qualified voter, shall, at any election, wilfully give in a vote, for any officers to be then chosen, he shall forfeit” a certain sum. The word “ wilfully ” was held to mean “ designedly, purposely, with an intent to claim and exercise the right of suffrage.” The main issue in the case was whether the defendant had had a domicil in Boston for six months before the election. At the trial in the court below the jury had been instructed that the fact that the defendant had consulted counsel with reference to his right to vote, and had received an affirmative answer, could not be regarded as negativing a knowledge on his part of his want of the legal qualification to vote. It was said by Chief Justice Shaw, with reference to this aspect of the case : “ In order to convict a party, under this statute, which is extremely liberal in this respect, it is necessary to prove, not only that the party had no right to vote, but that lie- knew it. As this qualification depends upon domicil, and that is often a complicated question of law and fact, we have no doubt, that if the voter, in good faith, and with an honest purpose to ascertain the right, shall make a true statement of the facts of his case to a professional man, or any-other man of skill and experience, capable of advising him correctly, the evidence of such advice, and the facts upon which it was taken, are competent, as bearing upon the question whether he knew that he had not a right to vote.”

In the case at bar no complicated question of law and fact was presented; nor did any question of the effect of consulting counsel arise.

The defendant does not object to the fact that the court below directed a verdict of guilty in each case, if there was no evidence from which the jury would be warranted in acquitting him. Nor does his counsel press the plea to the jurisdiction which was filed in the court below. The order therefore must be,

Exceptions overruled.