Egan v. Jones , 21 Nev. 433 ( 1893 )

The facts sufficiently appear in the opinion. This is what purports to be an election contest, brought under section 1560, Gen. Stat. Nev., which reads: "Any elector, of the proper county, may contest the right of any person declared duly elected to an office exercised in and for such county; and also any elector of a township may contest the right of any person declared duly elected to any office in and for such township, for any of the following causes: First, for malconduct on the part of the board of inspectors or any member thereof; second, when the person whose right to the office is contested was not at the time of election eligible to such office." It appears from the complaint that at the general election held in the month of November, 1892, the contestant, Egan, and the contestee, Jones, were opposing candidates for the office of district attorney in and for Lander county, Nevada; that Egan received two hundred and fifty-three votes, and Jones two hundred and sixty-nine votes; and thereafter the board of county commissioners met and canvassed the vote, finding the result as above stated declared Jones elected, and ordered a certificate of election to issue to him. The contestant filed his complaint, and assigns as the grounds of Jones' ineligibility that at divers and sundry times during the political campaign of 1892, Jones, in his public speeches, declared that the sum of one thousand eight hundred dollars per annum, which is the salary fixed by law to be paid to the district attorney of Lander county, was more than the services required of that officer were worth, and that if the people would elect him (Jones) to the office he would return to the county treasury fifty dollars per month out of said salary; and the said Jones offered to give a bond as a guaranty of good faith and return of the money as aforesaid. A demurrer was interposed to this complaint, on the ground that it did not state facts sufficient to constitute a cause of action against the defendant. The demurrer was sustained. The contestant failing to amend, judgment was entered in favor of the contestee for his costs.

This ruling of the court is assigned as error, and appellant argues that he was not required to allege in his complaint that the contestee had been tried and convicted of the crime of bribery; and he relies on section 10, art. 4. of the constitution to support his position. Said section reads as follows: "Any person who shall be convicted of the embezzlement or defalcation of the public funds of this state, or who may be convicted of having given or offered a bribe to procure his election or appointment to office, or received a bribe to aid in the procurement of office for any other person, shall be disqualified from holding any office of profit or trust in this state; and the legisture shall, as soon as practicable, provide by law for the punishment of such defalcation, bribery or embezzlement as a felony."

Contestant argues that, under the words "or who may be convicted of having given or offered a bribe to procure his election or appointment to office," it was not necessary for him to allege in his complaint that the contestee had been convicted of the crime of bribery in order to sustain his action. We think differently. The conviction is the foundation upon which the cause of action must be based on a charge of bribery, and without such a conviction no ouster can be adjudged. The word "convicted" has a well-defined meaning, and he who reads ought not to be misled thereby. Webster's dictionary defines the word as "the past participle of the verb to convict. To prove or find guilty of an offense or crime charged; to pronounce guilty, as by legal decision." Black's Law Dictionary: "Convicted. This term has a definite signification in law, and means that a judgment of final condemnation has been pronounced against the accused." Anderson's Law Dictionary: "Convicted. Found guilty of the crime whereof one stands indicted." Rap. L. Law Dictionary: "The finding of a person guilty of an offense." Bouvier: "Conviction. A condemnation. In its most extensive sense this word signifies the giving judgment against a defendant, whether criminal or civil. In a more limited sense it means the judgment given against the criminal." (See, also, Blaufus v. People, 69 N. Y. 109; Faunce v. People, 51 Ill. 312;Ritter v. Press Co., 68 Mo. 460.)

Under our system of government and the statute of this state, and the constitutional provision referred to, "convicted" means when a person has been indicted by a grand jury, tried by a court and jury, and found guilty of the offense charged in the indictment; and it was the intention of the framers of the constitution that no person should be ousted from an office, when charged with the crime of bribery, until after such trial and conviction upon a verdict of guilty.

By the section of the constitution referred to, bribery in made a felony under article 1, section 8. "No person shall be tried for a capital or other infamous crime * * * except on presentment or indictment of a grand jury." Section 1 Crim. Proc., reads: "A crime or public offense is an act or omission forbidden by law, and to which is annexed, on conviction: * * * Fourth, removal from office; fifth, disqualification to hold or enjoy any office of honor, trust, or profit under this territory." "Sec. 5. No person can be punished for a public offense except upon legal conviction in a court having jurisdiction. Sec. 6. Every public offense must be prosecuted by indictment, except — First, where proceedings are had for the removal of a civil officer of the territory." The exception merely refers to proceedings by impeachment. This is seen by reading section 3952: "If the offense for which the defendant is impeached be the subject of an indictment, the indictment shall not be barred by the impeachment." The court did not err in sustaining the demurrer, and the judgment is affirmed.