State v. . Houston , 103 N.C. 383 ( 1889 )

(By SMITH, C. J., concurring: Under the Constitution, Art. VI, sec. 1, a person does not forfeit his rights as an elector by a mere verdict of guilty, or a confession, when indicted for a felony, etc.; but, in order that such forfeiture shall attach, such verdict or confession must be followed by a judgment of the court against the accused. Where one is convicted of a felony, but the judgment is suspended, he does not forfeit his rights as an elector. Therefore, the indictment in this case should have been quashed, because it appeared on its face that the judgment was suspended on the "conviction" charged in the bill.) The defendant is charged in the indictment with the crime of perjury, in swearing, before a registrar, when making application to be registered as a voter, preparatory to the exercise of the electoral franchise, that he was "a duly qualified voter," when in fact he was not so duly qualified and entitled to be registered, he having been theretofore (to wit, in July, 1884) convicted of larceny by the verdict of a jury, (384) upon which judgment had been suspended.

Upon the trial his counsel entered a motion to quash the indictment, which was allowed by the court, upon the ground of its insufficiency in form to warrant a conviction and sentence, from which ruling the Solicitor on behalf of the State appealed. The oath administered is contained in section 2681 of The Code, and is in these words: "I, ..........., do solemnly swear that I will support the Constitution of the United States, and the Constitution of the State of North Carolina; that I have been a resident of the State of North Carolina for twelve months, and of the county of ......... for ninety days; that I am a duly qualified elector, and that I have not registered for this election in any other precinct, and that I am an actual and bona fide resident of ........ township. So help me, God."

The inquiry that presents itself, is as to the meaning and force of the words "a duly qualified voter," contained in said oath, in the taking of which the perjury is alleged to have been committed, and whether, in their connection, they embrace more than the original conditions on which depend the right to be admitted to the registry as a competent voter. There is an omission, in the form of the oath, of some of the essential requisites prescribed in the Constitution, such as naturalization of one alien born, which the term may supply; and thus the oath is confined, as suggested, to those indispensable qualifications set out in the Constitution, Art. VI, sec. 1, and does not extend to the loss of the franchise consequent upon the commission of and conviction for crime. This construction is supported by the form of the oath (385) directed to be taken, under section 2684, where a registered voter is challenged. It is made the duty of the judges to explain, to the person offering to vote, the required qualifications, and to ascertain by examination if he possesses them, and then to administer the oath therein set out, in which, among other specific prerequisites, are the words, "that you are not disqualified from voting by the Constitution and laws of thisState." In the former, the voter swears to his possessing the qualifications of an elector; in the latter, that he has not lost the right, by any provision in the Constitution and under the laws which takes it from him. The last oath points distinctly, as the first does not, to the disqualification which may arise under the Constitution. We are, therefore, of the opinion, that the oath administered to the defendant did not embrace the alleged grounds of disqualification, and that for this reason there was no error in the ruling of his Honor, in quashing the indictment.

No error. Affirmed.