United States v. Stone , 188 F. 836 ( 1911 )

ROSE, District Judge.

Two indictments have been returned against the above-named defendants. They have demurred to each of them. The government says that indictment 354 properly charges a violation of section 19 of the Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1092 [US. Comp. St. Supp. 1909, p. 1396; R. S. § 5508]). That section provides for the punishment of any two or more persons who conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution and the laws of the United States or because of his having so exercised the same.

There are two counts in the indictment. They are alike, except that in the first count the right or privilege of the citizens interfered with is said to be the right to vote at’the congressional election held on the 8th day of November, 1910, in the Fifth congressional district of Maryland for a representative in the Congress of the United .States. In the second count the right or privilege is alleged to be the right to vote at said congressional election for a candidate for Congress without discrimination against them by the state of Maryland acting through its election officers and otherwise on account of their race and color.

In each count it is alleged that the citizens in question were all duly qualified and registered under the laws and Constitution of Maryland and the laws of the United States to vote for such representative in Congress at said election in Charles county, Md.

When we speak of the indictment, it will therefore be understood that what we say is applicable to each of the counts, unless the contrary is stated.

The indictment charges that on November 8, 1910, an election was held in the Fifth congressional district of Maryland to choose a representative in the Congress of the United States. The defendants, Stone and Miller, .together with one J. Wirt Wilmer, were under the laws of Maryland supervisors of election for Charles county. Charles county is in the Fifth congressional district. It was their official duty to provide and cause to be printed the ballots to be used at such election. No ballots except those provided by them could lawfully be cast or counted. In Charles county there were a large number of persons of the negro race and of black color, citizens of the United States and of the state of Maryland and residents of Charles county. They were duly qualified and registered voters in such county, and under the Constitution and law's of Maryland and the Constitution of the United States were entitled to vote for a representative in Congress at said election. A large number .of said negro voters were illiterate. They could neither read nor write. There is no educational qualification for the right to vote prescribed by the Constitution and laws of Maryland. Stone and Miller constituted a majority of the board of supervisors of election. They conspired together to injure a large number of the duly qualified and registered negro voters in Charles county on account of their race and color in the free exercise of their right to vote at the election named for a representative in Congress. The indictment says that that right is a right secured to them and each of them by the Constitution and laws of the United States. Stone and Miller prepared and had printed and folded the official ballots in such form that any voter could easily vote for the Democratic candidate. It was difficult for any of the illiterate negro voters to vote for the Republican candidate. It would be impossible for many of them so to do. A detailed description of the ballot is given in the indictment. It is hot necessary to repeat that description here. The ballot as described was so peculiar as to suggest that those who directed its preparation must have had some other purpose in mind than to facilitate the qualified and registered voters of the county in voting for the candidates of their choice. It was conceded at the argument that such a ballot made it very much more difficult to vote for the Republican than for the Democratic candidate for Congress. The indictment says that the form of ballot was devised by Stone and Miller with the intent and purpose, on account of the race and color of said negro voters, to make it impossible for many of the duly qualified and registered negro voters of Charles county, and difficult for any of them; to vote at said congressional election for the candidate of their choice; the said Stone and Miller well knowing that said duly qualified and registered negro voters would in all probability vote for the candidate of the Republican party and not for the candidate of the Democratic party.

The defendant Dulany is charged with aiding and abetting Stone and Miller by printing the ballots for them. It is said that he well knew that Stone and Miller’s purpose in causing the ballots to be printed in the way they were printed was the purpose already set forth in the indictment.

The defendants say that the indictment is bad because such a conspiracy as is charged against them is not a conspiracy to injure the negro citizens referred to within the meaning of the word “injure” as used in section 19. They argue that no conspiracy is punishable by the statute in question unless the purpose of it is to cause personal or bodily harm to a citizen or to do some act. with intent to control or coerce his will. It is contended that the statute is not violated unless the thing which is purposed to be done is in the nature of a threat, an injury, an oppression, or an intimidation. A conspiracy merely to hinder, delay, or obstruct the exercise of the rights mentioned in the statute is not made a crime by it unless the conspiracy contemplates as the means of its accomplishment the doing of bodily harm or the putting in fear. The defendants claim that to give to this section the construction contended for by the government will make it applicable to all fraudulent practice;? at congressional elections participated in by two or more persons. They point out that this section 19 was originally enacted contemporaneously with many other provisions punishing various specific acts of fraud or corruption at congressional elections.

Those other provisions were repealed in 1894.

[ 1 ] The statute is highly penal. The punishments prescribed by it are much more severe than many of those which were prescribed for other election offenses. In such a statute doubtful words are not to be extended beyond their natural meaning in the connection in which they are used.

This prosecution belongs to a class of cases in which the courts have thought it best to insist on the technical as well as the substantial accuracy of all pleadings. Still it remains true that even such a statute, though it should be construed strictly, must not be so construed as to defeat the legislative will. Baldwin v. Franks, 120 U. S. 691, 7 Sup. Ct. 656, 763, 30 L. Ed. 766.

In this case the government does not ask that the word “injure” shall be given any other construction than that which it usually has.

[2] Unlawfully to deprive a citizen of the United States of his right to vote at a congressional election is to injure him in any ordinary use of the word “injure.”

The Supreme Court has said of this statute that it covers any conspiracy to prevent the exercise of any of the rights protected by it; or to throw obstruction in the way of exercising such right, or for 'the purpose or with intent to prevent its exercise. United States v. Waddell, 112 U. S. 80, 5 Sup. Ct. 35, 28 L. Ed. 673.

It does not follow that such a construction of the statute will make it the all-embracing enactment that defendants describe. A voter who votes for a Republican candidate for Congress may be in a very general sense injured by a fraudulent practice which results in the return of a Democratic candidate which would not otherwise have been returned. Indeed, every citizen, whether he voted for the Republican or the Democratic candidate, or for neither, might be said to be injured by a fraudulent return. It does not follow, however, that either the Republican voter or the citizens in general are thereby injured in the sense meant by this, statute. A public nuisance injures all the public. For all that, it is only some’person who is injured in some way differing from that of the great body of the public who at common law may maintain an action for the damage resulting from such nuisance. It is not every wrongful act which alters the result of the election which is punishable under the section in question. It must be some act which is intended to prevent some citizen or citizens from exercising their constitutional rights.

We think that the conspiracy charged is a conspiracy to injure the negro voters in question in the free exercise of a right or privilege secured to them by the Constitution of the United States. Defendants say that, even if this be so, the conspiracy charged is one which necessarily must have been intended to injure voters because they were Republicans and not because they were negroes. The form of ballot made no discrimination as to race or color. It was a ballot upon which no one would find it easy to vote for the Republican candidate. Any man, whether he was black or white, who was illiterate or poorly educated or had clumsy fingers or poor sight, might have found it impossible to do so. All this may be conceded. The right to vote at a congressional election is a right which was not dependent újion the race or color of the voter. The motive of the defendants might have been, as charged in the indictment, to disfranchise negro voters. If they knowingly conspired to prevent legal and qualified negro voters from voting, they offended against the statute. It would make no difference if in trying to do what they wanted to do they also injured other voters.

[3] Defendants say that the indictment is bad because it does not set forth the names of the negro voters whom the defendants are alleged to have ini ended to injure, and it does not say that their names are to the grand-jury unknown. This objection is, we think, disposed of by the decision of the Supreme Court in the case of Williamson v. United States, 207 U. S. 449, 28 Sup. Ct. 163, 52 L. Ed. 278.

[4] The defendant Dulany says that, whatever may be the case as to liis eodefendauts, he is not charged with any punishable crime. He says he committed no offense in printing the ballots that yStone and Miller told him to print, although he knew why they asked him to print so peculiar a ballot. We think the indictment is on its face good as against him. What the proof may be is another question.

[5j We pass now to the consideration of the demurrer to indictment No. 355. fly that the defendants are charged with the violation of section 37 of the Penal Code(R. S. § 5440) by conspiring to commit the offense defined and prohibited by section 20 of the Penal Code (R. S. § 5510). The latter section imposes punishment upon any one who ‘‘under color of any law, statute, ordinance, regulation or custom willfully subjects, or causes to be subjected, any inhabitant * * * to the deprivation of any rights, privileges or immunities secured -or protected by the Constitution and laws of the United States * * * by reason of his color or race.”

Uiko indictment No. 354, this contains two counts. They differ from each other in the same and in no other respect than that in ■which one count of No. 354 differs from the other.

No 355 contains all the allegations made in 354. They are phrased in substantially the same language. The material distinction between the two indictments is that No. 355 contains a number of allegations charging that what the defendants are said to have done was done under color of state laws, colloquially described as the Wilson laws. The indictment says that in Jialtimore city and in 12 of the counties of the state there are in the aggregate, approximately, 191,451 registered white, and 28,448 registered negro, voters. In that city and in those counties the law requires that on the official ballots the names of all the candidates for each office shall he arranged in alphabetical order with the designation of the party or principle represented by them following after their respective names. Specimen copies of the ballots are required to be posted not less than four .days before the election. These counties are commonly called the “non Wilson bill counties.” The remaining 11 counties are known as the “Wilson bill counties.” In them there are about 39,268 registered white, and 20,~ 345 registered negro, voters. In the latter counties party designations are not allowed on the ballots. The supervisors of election are authorized to arrange the names of the candidates for each office in any order they see fit. No specimen ballots are required to be posted. It is charged that the Legislature in enacting a different election code for the portion of the state in which the negroes were relatively numerous intended “to give the supervisors of election of said Wilson counties the opportunity and power of so arranging the official ballots to be voted in said Wilson counties in any election to be held therein, and so to keep the said arrangement secret as to subject by reason of their race and color a large number of the duly qualified and regis-tefed negro voters, aforesaid, and especially those who were illiterate, being citizens of the United States and of the state of Maryland, and inhabitants of the said Wilson counties, to the deprivation of the right of voting without discrimination by reason of their race and color at any public election to be held in said Wilson counties.”

In addition to the objections which were made to the indictment in No. 354, the defendants say that indictment No. 355 is bad because it is not alleged that the so-called Wilson laws on their face directed or made a discrimination against negro voters.

It is argued that, unless the statutes show by their wording that there is the intent to discriminate against negro voters as such, any discrimination made by the defendants in fact was not made under color of these laws, as the word “color” is to be construed in the statute in question.

We think that this contention is answered in the negative by the opinion in the Supreme Court in Yick Wo v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064, 30 L. Ed. 220.

. In view of the fact that we have arrived at the conclusion that the defendants must stand their trial, we have purposely refrained from discussing with elaboration any of the questions involved. Many of them will in other forms doubtless arise at the trial.

The demurrer to each indictment will be overruled.

MORRIS, District Judge, concurs.