State v. Bruce , 5 Or. 68 ( 1873 )

By the Court,

Bonham, J.:

It is claimed by counsel for appellant in this case:

1. That the facts charged in the indictment do not constitute a crime.

2. That there was a fatal variance between the evidence adduced by the State and tbe allegations of the indictment.

8. That the court erred in admitting irrelevant testimony tending to show that defendant voted at places in Multnomah County, on October 13, other than Bast Portland precinct.

These three propositions embrace all the questions necessary to be considered in this case, inasmuch as the other objection, that the verdict of the jury was against the evidence, could in no event be made available in the absence of a showing of all the evidence in the case, which the bill of exceptions does not pretend to give.

The statute upon which this indictment is based (Crim. Code, § 630), reads as follows: “If any person shall vote or offer to vote at any legally authorized election in this State, knowing himself not entitled by law to vote thereat, or shall vote or offer to vote at any poll or in any precinct at any such election, knowing himself not entitled by law to vote at such poll or in such precinct,, such person, upon conviction thereof, shall be punished,” etc.

It was conceded on the argument, and the bill of exceptions shows, that Bobert Bruce, the appellant, was a lawful voter within the State of Oregon on the 13th day of October, 1873, and it would follow, under our Constitution and elec-' tion laws, that he had the right on that day to cast one vote at any voting precinct within the State for representative in Congress, provided there was a legally authorized election for the same then held.

In view of these facts, is the indictment in this case sufficient to sustain the verdict and the judgment pronounced upon it? While we agree that a demurrer to this indictment should have been sustained, had one been interposed, on the ground that it does not substantially conform to the requirements of chapter eight, title one, of the Criminal Code, yet we do not think that the defects in the same are of such a character that they may be successfully urged on motion in arrest of judgment or upon appeal.

. Under the provisions of chapter eight, title one, of the Code of Criminal Procedure, the defendant had the right, if he had chosen at the proper time and in the proper manner to have demanded it, to have required that the State should specify wherein and for what reason he was charged to have been an illegal voter—whether because he was charged to be a minor, a non-resident of the- State, an alien who had not declared his intention to become a citizen, as required by law, or that he was not entitled to vote at the time and place charged, because he had already voted at the same election at some other time and place.

But having slept upon his rights by failing to demand, by demurrer, a fuller specification of the facts and circumstances necessary to the complete identification of the transaction charged against him as a crime, he cannot be heard to objeet to the indictment after a trial upon the merits, when it substantially charges a crime in the language of the statute.

By his silence and acquiescence, the defendant virtually says: “I understand the nature and cause of the accusation against me, and am ready to meet it upon the issues of fact raised by my plea of not guilty.” If the defendant had not so understood the accusation, it was his right and duty to have said so by demurrer, without putting the court and its officer, and the county, to the unnecessary labor and expense of a trial, by the result of which he had resolved, in advance, not to abide, if the issue should be found against him.

This reasoning, of course, does not apply to an indictment which is subject to the objections raised by the first and fourth grounds of demurrer, as specified by statute. (Crim. Code, §§ 123, 131.)

Counsel for appellant in this case, in support of their position that the indictment is fatally defective in not specifying the grounds of the disqualification of defendant as a voter at East Portland precinct, cite, with much reliance, the case of Quinn v. The State (9 American R. 754), in which the Supreme Court of the State of Indiana held that an indictment for illegal voting very similar to this was insufficient, because it did not sufficiently inform the defendant of the precise nature of the offense charged, so as to enable him to prepare for his defense; but in the case referred to, it will be observed that a motion to quash the indictment was interposed by the defendant, which, after argument, was overruled by the court below, and exceptions to the ruling duly taken. In the case in hand, if the indictment had been demurred to, and the demurrer had been overruled, we should hold the same as was held by the Supreme Court of Indiana in Quinn v. The State; but the cases do not stand alike—the motion to quash under the Indiana practice being equivalent to the demurrer under ours.

To hold that every minor defect in an indictment may, for the first time, be taken advantage of after trial upon the merits, would do violence not only ib the spirit, but to the letter of our Code of Criminal Practice, and would result in entailing upon the public unnecessary expense, and in many instances in thwarting the ends of justice.

We hold, then, that the indictment in this case, although defective in the respects hereinbefore mentioned, does, charge a crime, and that its defects, not having been objected to by demurrer, are .cured after verdict. This view of the case, as to the sufficiency of the indictment, disposes of the second and third objections against the appellant, involving the questions of irrelevancy of the testimony and the alleged variance between the proofs and the allegations of the indictment.

Judgment affirmed.