State v. Jackson , 1881 Me. LEXIS 21 ( 1881 )

Libbey, J.

This is an indictment against the defendant for unlawfully and wilfully attempting to influence a qualified voter to give in his ballot at a municipal election, in the city of Rock-land, by offering and paying him money therefor.

The offence charged is not within E. S., c. 4, .§ 67.

Is bribery at a municipal election a misdemeanor at common law in this State ? It is claimed by the learned counsel for the defendant, that it is not recognized as such in this country. We 'think it is. It was an offence at common law in England. 1 Eussell on Crimes, 154; Plympton’s Case, 2 Ld. Raym. 1377 ; Rex v. Pitt, 3 Burr. 1335.

The common law of England upon the subject of bribery, fraud and corruption at elections, is generally adopted as the common law in this country. Comm. v. Silsbee, 9 Mass. 417 ; Comm. v. Hoxey, 16 Mass. 385; 1 Bish. Crim. Law, 355 ; Walsh v. The People, 65 Ill. 58; State v. Purdy, 36 Wis. 224; State v. Collier, 72 Mo. 13 ; People v. Thornton, N. Y.; S. C. Third Department; Albany L. J. Dec. 3, 1881, p. 441; Com. of Penn. v. McHale, S. C. Penn.; Albany L. J. Nov. 19, 1881, p. 412.

Bishop in his work on criminal law, vol. 1, § 922, says : "We see it to be of the highest importance that persons be elected to carry on the government in its various departments, and that in every case a suitable choice be made. Therefore- any act tending to defeat these objects, as forcibly or unlawfully preventing an election being held, bribing or corruptly influencing an elector, casting more than one vote, is punishable under the criminal common law.”

Paxon, J., in the opinion of the court in Comm. v. McHale, supra, says : "We are of opinion that all such crimes as especially affect public society, are indictable at common law. The test is not whether precedents can be found in the books, but whether they affect the public policy or economy. It needs no argument to show that the acts charged in these indictments are of this character. They are not only offences which affect public society, but they affect it in the gravest manner. An offence against the freedom and purity of the election, is a crime against the nation. It strikes at the foundation of republican institutions. Its tendency is to prevent the expression of the will of the people in the choice of rulers, and to weaken the public confidence in' elections. When this confidence is once destroyed, the end of popular government is not distant. Surely if a woman’s tongue can so far affect the good of society as to demand her punishment as a common scold, the offense which involves the right of a free people, to choose their own rulers in the manner pointed out by law, is not beneath the dignity of the common law, nor beyond its power to punish. The one is an annoyance to a small portion of the body politic, the other shakes the social fabric to its foundations.”

We have no doubt that bribery at a municipal election is a misdemeanor punishable by the common law of this State.

An attempt to bribe or corruptly influence the elector, although not accomplished, will submit the offender, to an indictment. State v. Ames, 64 Maine, 386.

But admitting that attempting to bribe an elector at a municipal election is an offence at common law, it is claimed by the counsel for the defendant that the indictment in this case does not properly charge such offence.

1. It is claimed that willfully and unlawfully attempting to influence an elector to give in his ballot, by offering or paying him money therefor, is not criminal. We think it is. What the law deems criminal and seeks to prevent is the corrupting of the elective franchise. Every elector not only has the right to vote or not to vote according to his own judgment of duty, but he has an interest that every other elector shall exercise the franchise in the same manner, without being influencedJjy the corrupt payment of money, or other unlawful means. If the elector determines that under all the circumstances it is not his duty to vote, but is induced to cast his' ballot in the election by the corrupt payment of money, the ballot does not represent the free and unbiased act of the elector, but it represents the money paid for it; and when counted neutralizes the ballot of the honest voter. When such corrupt influences are used, the result of the election does not depend upon the honest, uncorrupted judgment of the electors, but upon the amount of money paid to corrupt them. It is an offence against the people, and has been so regarded in England as well as in this country.

Plympton's Case, supra, was an information at common law, for offering an elector money to-induce him to cast his vote for mayor.

The statute of 2 Geo. 2, c. 24, § 7, declares it an offence for any elector to "ask, receive, or take money or other reward, by way of gift, loan, or other device . . . to give his vote,” "or to refuse or forbear to give his vote in any such election,” and any person who by such means, shall corrupt or procure any elector to give his vote, or to forbear to give his vote in any such election, shall be equally guilty with the elector.

It was held that this statute was merely an affirmance of the common law, and did not take away the common law crime. Rex v. Pitt, 3 Burr. 1335.

The statute of 5 & 6, Win. 4, c. 76, § 54, in regard to tlie election of mayor, or of a councilor, auditor or assessor of any borough, uses terms similar to the statute of 2 Geo. 2.

The form of an indictment under the statute of Massachusetts, given by Train and Heard (Precedents of Indictments, 185,) is the same upon the point under consideration, as the indictment in this case. f

2. It is further objected that it is not alleged in the indictment that a legal meeting of ward one in Bockland was held; nor for what city one alderman and three councilmen were to be elected; nor that Augustus Montgomery was a legal voter in the same ward one in which the meeting was held. But on a careful examination of the indictment, we think the allegations sufficient on each of these points. State v. Bailey, 21 Maine, 62 ; State v. Boyington, 56 Maine, 512.

Exceptions overruled.

Judgment for the State.

Appleton, C. 3., Walton, Bareows, Daneorth and Peters, JJ., concurred.