Epps v. . Smith ( 1897 )

Montgomery, J.:

This action was brought bjr the plaintiff to recover of the defendant the forfeiture pronounced against violations of Chapter 159, Section 42, of the Acts of 1895. The allegation is that in the times just preceding the last general election the defendant, who was a candidate for the office of Sheriff of Vance County, gave money and whiskey to various electors in order that he might be elected to that office. The chief evidence in the case against the defendant is furnished by his sworn statement of his election expenses filed under the requirement of Section 72 of the Act of 1895.

The language of the statute under which the action is brought is clear, and we think its meaning is also clear. It would seem almost impossible to confuse or confound the natural understanding of men as to the meaning of this law, by arguing that there is no difference between a contribution made by a candidate for office for his part of the necessary expenses of a political campaign or paying individual persons to help him conduct his own personal canvass, provided the electioneering be honest and the service duly rendered, and the giving of money or any other thing of value to electors in order to be elected. The first is the payment for proper services rendered, the last is the giving for no service rendered and for no return except that of the voté of the elector. The law contemplates that the elector shall not receive money for his vote, nor shall a candidate or any other person for him, give money to an elector in order that the candidate may be elected to office.

The defendant’s counsel insisted here that it was necessary that the complaint should have alleged a wilful and corrupt intent on the part of the defendant to do the acts complained of. We axe not of that opinion. It is the doing of the particular act, to-wit, giving money to electors in order to be elected that gives the cause of action, and the intent with which the act is done is not material except that the purpose must be to procure the election of the defendant. Even in statutory crimes, where the act itself is made indictable, this Court has held over and over again, that the intent is not to be considered except as to the intent to do the act forbidden. In State v. Voight, 90 N. C., 741, this Court said: “The criminal intent is inseparably involved in the intent to do the act which the law pronounces criminal.” In State v. McBrayer, 98 N. C., 619, the Court said: ‘When the language is plain and positive and the offence is not made to depend upon the positive wilful intent and purpose, nothing is left to interpretation.” To the like effect are the decisions in State v. Kittelle, 110 N. C., 560; State v. Downs, 116 N. C., 1064; State v. McLean, at this term.

In the statement of the defendant, heretofore referred to, he said that he gave $20 to a certain named elector, who was of his own political party, “for services to the ticket.” A witness was introduced for the plaintiff who testified that that elector was opposed to the election of the defendant to the office of Sheriff and had organized a political club hostile to him, and for his opponent; that he worked for the rival candidate in a half-hearted way until the day of election, when he was “quiet.” The statement of the defendant also showed that four other named electors of a different political party from that of the defendant, received from him money and whiskey to be used by two of them “as best they could and thought proper,” and by the other two “as they liked.” There was further proof in the statement on the same line. We do not agree with his Honor that the above was not sufficient evidence to be submitted to the jury oil the issue they were trying. Tlie jury, if they believed the testimony, might reasonably have concluded that the defendant had used money and whiskey in order to be elected Sheriff of the County as charged in the complaint.

The Statute, Chapter 159, Section 42, of the Acts of 1895, under which this action was begun, was amended at the last session of the General Assembly, Chapter 185, Section 42; the amendment consisting in the striking out from the Act of 1895 the forfeiture of $400. The defendant’s counsel argued that, notwithstanding the provisions of Sec. 3764 of The Code, which reads, “the. repeal of a statute shall not affect any action brought before the repeal for any forfeitures incurred or for any recovery for any rights accruing under such statute,” the repeal of the penalty clause after this action was begun took away the plaintiff’s cause of action if he ever had any. The contention was that section 3764 of The Code was not in harmony with the Constitution, that instrument ordaining that “The General Assembly shall have no power to deprive the judicial doj^artment of any power or jurisdiction which rightly appertains to it as a co-ordinate department of the Government.” In his brief the defendant’s counsel said: “It is admitted that this Section (3764) undertakes to define the meaning and effect of future legislation and to encroach upon the judicial power, and that it ought not to be allowed to do so.” We do not understand how the Section of The Code referred to in the brief can be said to affect future legislation on the subject of penalties. There is nothing to prevent any succeeding General Assembly from repealing Section 3764, and in doing so leave to judicial determination if it should ever become necessary, the effect of the repeal. Neither do we see in that section of The Code any encroachment upon the power of the judiciary. In the case cited Houston v. Bogle, 32 N. C., 496, by the defendant’s counsel, the question involved was the right of the General Assembly to declare in the Act, under discussion there, what the legal rights of the parties to the suit were before the passage of the'Act, and where the Act had injuriously affected rights already vested. The Judge who delivered the opinion in that case stated the question in this language: “The statute was passed after-wards and the question is, can it have any effect upon the rights of the parties in this case or change the law so far as they are concerned from what it was at the time their rights vested.” This question does not arise in the case before us.

The defendant’s counsel called our attention to the fact that the Act under which this suit was brought had its origin in the Act of 1777, Chapter 116, Section 22, and he stated that he had been unable to find in our Reports a single case brought under its provisions during this century and more, except the one against his client. This may be so, and yet some enterprising citizen of Vance County, some genuine reformer, may have determined not to let this Statute perish from “innocuous desuetude.” It may be of consolation to his client for him to believe that in his trouble, wherever it is known, he has the deepest sympathy of many of his brother officers; and from the argument of his counsel here it may not be rash to infer that both client and attorney feel, with redoubled conviction of its truth, even if the client should be convicted, the force of the scriptural declaration that the men upon whom the tower of Siloam fell were no greater sinners than those who escaped.

There was error in the ruling of his Honor and there must be a new trial.

New trial.