May v. State ( 1901 )

Appellant was convicted of illegal voting, and his punishment assessed at two years confinement in the penitentiary; hence this appeal.

Error is assigned on account of the refusal of the court to quash the indictment. Appellant insists the indictment is defective on two grounds: (1) Because it nowhere alleges that the Prairie Hill schoolhouse, where it is alleged defendant illegally voted, was the place selected by the Commissioners Court of Bosque County, Texas, for the holding of the election at said precinct; (2) because it is nowhere alleged that appellant voted for any men or measures at said election. With reference to the first proposition, we would observe that it is alleged in said indictment that "an election was then and there held, and authorized by law, at Prairie Hill schoolhouse, in voting precinct No. 10." It occurs to us that it was not necessary to state as a fact that the Commissioners Court had designated Prairie Hill schoolhouse as a voting place in said precinct, the allegation that the election was authorized by law at Prairie Hill schoolhouse being sufficient. This averment would authorize proof of the facts which would render an election at said place a legal election. With reference to the second contention, — that the indictment should have charged that appellant voted for or against some particular officer to be chosen, or for or against some particular measure, — we do not think this is well taken. Gallagher v. State, 10 Texas Criminal Appeals, 470, cited by appellant, as we understand it, is authority against him. Of course, it will not be seriously contended that the form laid down by Judge White as an indictment for this character of offense would be authority. The charge here is that appellant voted at a certain election, "which said election was then and there held for the purpose of electing various State, county, and precinct officers of Texas." This not only designates the character of the election as being a general election, but charges that the same was held for the purpose of choosing State, county, and precinct officers of Texas. This is a sufficient description and averment as to the character of election. The gist of appellant's offense is that he voted at a certain legal election, not that he voted for or against any particular men, or for or against any particular measure. Indeed, we do not understand how the pleader could procure this information. The ballot is intended to be secret, and only under certain conditions can any inquiry be made which would involve the opening of the ballot boxes.

On the trial appellant objected to all oral evidence showing the election was held at Prairie Hill schoolhouse, in precinct No. 10, on the ground that the Commissioners Court, when they made precinct No. 10 a voting precinct of Bosque County, failed to designate any place at which the said election should be held in said precinct, and no authority was conferred upon any persons or other course prescribed to select a place in which said election should be held. The order of the court designating the precinct, describing it by metes and bounds, was also objected to, because it did not contain any order appointing or designating Prairie Hill schoolhouse as a voting place in said precinct. The judge explains these bills of exception by stating "that Prairie Hill schoolhouse, named, was within voting precinct No. 10, and was the usual place of voting in said precinct, as will appear from the statement of facts." This brings up the important question in this case. Appellant contends that article 1705, Revised Civil Statutes, is mandatory, requiring the commissioners court of each county to designate one place in each election precinct at which elections shall be held, and that this must be shown by the record. We quote from said article as follows: "The commissioners court of each county, at their first regular term in each year, if they deem it necessary, may divide their respective justices' precincts into as many election precincts as they shall deem expedient, which shall all be numbered, and no two shall be designated by the same number. No election precinct shall be formed out of any two or more justices' precincts, and they shall designate one place in each of such election precincts at which elections shall be held," etc. It will be observed that this section does not require the commissioners court at their first term in each year to lay off voting precincts and to designate voting places, but this is left optional with the court by the use of the term "if they deem it necessary." So it would follow, if the commissioners court at some previous term had designated the precinct and place therein at which to hold the election, that same would continue in force until changed. We think it would equally follow, if the commissioners court at some preceding term had designated a place in a certain precinct, and if at a subsequent term in outlining precincts they said nothing about the place, — made no change, — that the place formerly selected would continue to be the place at which to hold the election. It appears from the records of Bosque County that it was divided into twenty-one voting precincts. These were constituted in 1896. In 1898 the only change made in the description of the precincts was in two precincts, to wit, Meridian and Cedron, which are not material to this discussion. The field notes of Childers Creek voting precinct No. 10, which is involved in this prosecution, was mapped out in 1896, but it does not appear in the order made at that time Prairie Hill schoolhouse was designated as the voting place. For aught that appears, it may have been previously mapped out, and the Prairie Hill schoolhouse may have been designated. In the absence of proof that the records fail to show it was designated as a voting place for that precinct, we might indulge the presumption that at some previous time it had been designated by the commissioners court, and in that event it would continue to be the voting place in the precinct until changed by the commissioners court. However, for the purpose of meeting this question, we will concede the commissioners court had never designated Prairie Hill schoolhouse as the place in said precinct in which elections should be held. If it is shown that such place was the usual voting place in said precinct, and was so used by the voters, no other place being designated by the commissioners court, an election held at said place would be a legal election. As a general proposition, we are aware that the time and place authorized by law is essential in order to constitute a legal election; that is, if an election is held at some other place or at some other time than that authorized by law, such election is void. And it is said, as a general rule, that an election held at a place not authorized by law is absolutely void, without proof of any fraud or injury. 10 Am. and Eng. Enc. of Law, p. 684, and authorities there cited. In a number of cases elections have been held valid where a change was made as to the place of holding the election without the authority of the tribunal authorized to designate the place. These changes, however, as to the location, were slight changes, and were rendered necessary by some supervening cause. Ex parte Segars, 32 Tex.Crim. Rep.; Ex parte White, 33 Tex.Crim. Rep.; Farrington v. Turner,53 Mich. 27, 18 N.W. Rep., 544; Wakefield v. Patterson,25 Kan. 709; Delano v. Morgan, 2 Bart. El Cas., 168; State v. Burbridge,24 Fla. 112, 3 So. Rep., 869; Steele v. Calhoun, 61 Miss. 556; Dale v. Irwin, 78 111., 170. Most of the cases cited, as is stated above, were cases where the proper authority had named or designated some place, and voters by common consent changed the place. Here it does not appear that the proper authority, to wit, the commissioners court, had ever named any place, but by common consent the voters had for a number of years used Prairie Hill schoolhouse. Indeed, in the language of one witness, "Prairie Hill schoolhouse, where the election was held, has always been the usual place of holding elections for Childers Creek box." So, if it be conceded that the voters may make a change in the voting precinct under circumstances of necessity, by a stronger reason it would appear they could designate some place when none had been named by the commissioners court. This is what was done in Delano v. Morgan, supra; that is, no voting place had ever been fixed by the act but the proof showed the elections had been held in the particular place for eighteen years, and in such case it was held the election was legal. In Steele v. Calhoun, supra, it appeared the Dogwood Flat church had never been designated by any competent authority as the place for holding the election in that precinct, but it was used as the voting place by the voters for a number of years. Although the house was removed some three-fourths of a mile from its original site, it was still called by its former name, and the election held there after its change was held valid. These cases proceed on the theory that the voters are the final arbiters in such matters, and if no place has been named, and by common consent some particular place is used, and all have a fair opportunity of depositing their ballots, no voter being deceived by the location or change of the voting place, the election will be held valid. In this particular case no fraud whatever was shown or attempted to be shown. The place was situated within the voting precinct, and by common consent had been used by the voters for a number of years. Certainly, under the circumstances, in a contested election case it could not be seriously insisted that the vote of said box should be thrown out because the place, Prairie Hill schoolhouse, had never been designated by the Commissioners Court as a place for holding an election in said precinct. If the Commissioners Court had designated some other place, and without any necessity, real or apparent, the voters had changed the place, another question would arise. But, under the circumstances as disclosed by this record, we hold the election held at Prairie Hill schoolhouse for precinct No. 10 of Bosque County was a legal and valid election.

We do not believe the court erred in admitting testimony of the witness Bennett as to the name of defendant's mother before she married. He had known her is Piper, and whether he was introduced to her by that name, or whether she told him that such was her name would make no difference. As to the age of defendant, that was a matter for the jury, and we think the evidence is sufficient to justify the jury believing he was under 21 years of age when he voted.

The judgment is affirmed.

Affirmed.