State v. Bailey , 21 Me. 62 ( 1842 )

The opinion of the Court was drawn up by

Tenney J.

— The two-first objections, relied upon by the defendants’ counsel, are to the indictment. It is contended, that it should contain the allegation, that the inhabitants were summoned by warrant from the selectmen, duly and legally served upon them, 8fc. This part of the indictment has no other connection with the acts of the defendant, which constitute the offence charged, than that there was such an occasion, as rendered those acts criminal, when under other circumstances they would have been in violation of no law; and it is believed that a general charge, sufficiently broad to embrace the proof necessary to render the meeting legal, is all which can be required.

It is alleged, that on the day named, the male inhabitants and legal voters were convened according to the constitution and laws of the State in legal town meeting for the choice of town officers. We can conceive of no benefit, which the defendant could derive by a detail of all the steps taken to make the meeting legal. The record was the only proper evidence on this point, and it could not be contradicted. No rebutting evidence could be adduced. It has not been required in cases which bear some analogy to the one before us. In indictments against towns for defects in highways, a general charge, that the highway complained of, was legally such, is sufficient. If the proof had failed to sustain this allegation, the accused Would have had the advantage of the defect.

The second objection is equally without foundation. No statute requires that the warning should be in the mode contended for, nor is it essential to the legality of the meeting. The voters of the town were legally assembled, though the warrant was in the form in which from the indictment, we may suppose it; hence an allegation of that which is not required to be in the warrant, is unnecessary. The charge in this part of the indictment embraces every thing material. The meeting being legal, the citizens had full opportunity of exercising their rights, and the statute under which this bill was found, was intended to guard them against an invasion of those rights.

The objection to the proof offered, that the warrant itself ' and not the record thereof should have been introduced, is not sustained. The warrant was one of the documents from which the record was made, but it is the record itself made perfect from all the necessary materials by the sworn officer appointed for the purpose, and having the official certificate, which is the proper evidence. This only is the record, and this is the only evidence legally admissible, where from the nature of the case, it is presumed to exist. Nothing short of this can be treated as evidence, unless allowed by special legislative enactments, and it cannot be controled by that which is of an inferior character.

It is insisted that the witness relied upon, to support the charge, by appearing voluntarily before the grand jury, was to be deemed the complainant, and that therefore he was incompetent, because a moiety of the pecuniary penalty belongs to him. Was he the complainant in the sense contemplated in the statute ? Is every witness who may testify before that body, without being called on in the mode pointed out, by which witnesses are compelled to appear and give testimony, to be treated as complainants ? It is apprehended, that there must be some record, touching the charge, which admits of no dispute, that the one entitled to the half of the penalty is the complainant; he must be such throughout. One cannot be a complainant at one stage of the proceedings and cease to be such at another. If one make complaint before a magistrate, obtain a warrant, and on the examination before him the accused is recognised to appear at a higher tribunal, and another appears before the grand jury voluntarily, and gives testimony, which of those is the complainant; and in the event of conviction, entitled to a part of the penalty ? After conviction and sentence, is the Judge who tried the case to hear testimony, in order to ascertain who is the one entitled thereto ? We are of the opinion, that this claim should be settled by the same species of evidence, which shows that a charge was made and a conviction followed thereon. Comm. v. Frost, 5 Mass. R. 53.

Our statute requires that there should be a list of witnesses in each case filed with the clerk. This may be regarded as a record ; but it is not required that this list should be accompanied by a statement of the character of each, whether complainant or not; whether a witness appeared before the grand jury or in court voluntarily or not; and therefore we do not perceive that this can lead to any unerring conclusion. We find no record that the witness relied upon by the government’s attorney, in this case, was the complainant. We are not to suppose there was any preliminary examination, in the absence of proof thereof; and the indictment is silent as to any one except the State, as being interested in the penalty.

It is contended, that the omission of the presiding officer at the meeting to keep a check list, renders the proceedings illegal and void. There is no express requirement, that a check list shall be kept at such a meeting. No person can vote, till the presiding officer has had opportunity to ascertain, that his name is upon the list, and to check the same. This would seem to be a provision, intended to prevent from voting those whose right may be thought doubtful by the presiding officer. But if the one who should preside in the meeting, were to fail to keep a list, we are not satisfied, that this would render void the whole proceedings, disfranchise the town, and deprive all its citizens of their municipal rights. Neither do we think the means taken by the moderator to prevent the effect of the wrongful act of the defendant can avail him. It was sufficient that the meeting was legal, and the balloting properly commenced, and so continued till the two votes were deposited in the box by the defendant; and even if the conduct of the officer presiding was afterwards unwarranted by law, it would not exonerate him from the act committed in violation of the statute.

The defendant moves in arrest of judgment, and founds his motion upon the want of any allegation in the indictment, that he was an elector in the town of Harpswell. This prosecution is under the statute of 1821, ch. 115, sec. 16. The language is, “ If any person at any meeting for the choice of town officers shall knowingly give in more than one vote,” &c. The terms are different from those used in the tenth section of the same chapter in relation to the choice of State officers, and will embrace one not an elector of the town. The meaning of the Legislature cannot be mistaken; the language is clear and unequivocal, and will apply to one not an elector of the town 8s well as to one who is such. We cannot think that it was intended, that he should escape the penalty for putting in two votes, although an uncertainty may exist, whether he had the right to vote at all.

The exceptions and motion are overruled.