State v. Milby , 1901 Wash. LEXIS 701 ( 1901 )

The opinion of the court was delivered by

White, J.

A motion has been interposed to strike appellant’s brief, and to affirm the judgment of the court below, because the brief does not point out the errors relied upon by the appellant for reversal. We think it sufficiently appears from the brief that the insufficiency of the evidence on the part of the state to support conviction and the insufficiency of the information are the errors relied upon, and the motion is therefore denied.

Appellant was informed against by the prosecuting attorney of Kittitas county, charged with the crime of improperly attempting. to influence an elector in giving his vote at the general election on Hovember 6, 1900. The section under which the information is laid is as follows:

“Ho person shall in any way, directly or indirectly, by menace or other corrupt means or device (directly or indirectly), attempt to influence any person in giving or refusing to give his vote in any such election, or to deter or dissuade any person from giving his vote therein,” etc. § 7421, Bal. Code.

The information, omitting the formal parts, is as follows:

“That on the 6th day of November, A. D. 1900, at a general election then held pursuant to the laws of the state of Washington, in the first ward of the city of Roslyn, in Kittitas county, in the state of Washington, the defendant, William Milby, did unlawfully and feloniously attempt to influence one Louis Diggs in the giving of his, the said Diggs’, vote at said election, by the following corrupt means and device, to-wit: At the time the said Diggs came to the polls in the said first ward of the city of Roslyn and on said day, to cast his vote at the election aforesaid, the said defendant, for the purpose of influencing the said Diggs in giving his said vote, did then and there arrange for the payment to said Diggs of a sum of money, and did procure said sum of money to be paid to Diggs after he, the said Diggs, had voted.”

The facts in' the case are as follows: On the day of the election, a Mr. Haight, who was acting as town marshal, saw the appellant, who was a judge of the election, give a piece of paper to one Medley, after Medley had voted. When he saw this he said to the officers conducting the election:

“ 'Gentlemen, have I voted V and they said, 'Yes” and I says, 'I want a slip of paper the same as the rest have heen getting” and they seemed to be surprised, and said, 'Is there anything wrong going on here?’ I says, 'Yes, and it has got to stop.’ ... I says, 'Mr. Milby, did you give that slip of paper?’ and he says, 'Yes, he asked me for it” and I says, 'This work has got to be stopped.’ ”

This caused a good deal of comment to fe made as to the manner in which the election was being conducted, and suspicions were aroused. Isaac Brown, Bred Wood-son and Mr. Haight and others set about to discover the fraud, if any was being perpetrated. Isaac Brown says that he had a good deal to do with sending Diggs to get the slip of paper hereinafter referred to, and that it might be said that he sent Diggs for it, and that Diggs came right back with it.- Diggs testifies that he did not mean to vote until the afternoon, but in the forenoon he met Bred Woodson, who asked him- if he had voted yet. He answered “Ho.” Woodson then said to him. “You go and vote, and you ask Milby about it, and they will give you a slip of paper, and bring that to me and I will put you on to something.” “Of course,” he says, “I did not knW what ‘putting you on to something’ meant.” When Diggs voted he received from Milby a slip of paper, as hereinafter detailed. He says that after he voted he found out what the slip of paper meant; that he discovered where to get the money; that he got $5 on the slip and then surrendered it. He does not testify as to how he discovered where to get the money. When he got the slip he went to see Woodson, but Woodson was out, and he took the slip of paper to Brown at Brown’s store. There were quite a number of gentlemen there. The slip was shown to them, and there was quite a discussion over it. It read, “Milby all right.” After the discussion Brown asked Diggs if he knew what that was for, and told him that it was $o for his vote; that then he did not know where to get the money, but discovered where to get it. Mr. Haight testified that he was present at Brown’s store when the slip of paper was being examined; that Diggs wyent out of the store to get some money, and took the slip with him; that Diggs and Woodson went around together on the street; that he followed them; that Woodson -went into an alley with Diggs, and in a moment came out, leaving Diggs in the alley, and said to Haight, “There is where he is getting his money;” that at that time Diggs and one Johnny Robinson, who was a barber in the town, had stepped out of the main alley into a little alley behind a saloon, and witness walked in from where he was, and saw Robinson gire Diggs some silver dollars; that he was about eight feet from them at the time, and came up just as Robinson was giving the money to Diggs; that they were in from the street about seventy-five feet; that just as the witness stepped up Robinson gave Diggs the money. The following is what occurred between appellant and Diggs when Diggs went to vote: When Diggs went into the polling booth he called for the appellant to give him some instruction about his ballot. Diggs asked the appellant if an “X” at the top of the national ticket voted the whole ticket. He wanted to vote the straight republican ticket. He knew at the time he made the inquiry the effect of voting an “X” at the top of a ticket he wished to vote. Something was said in the same conversation as to how to mark the ballot in order to vote for governor on down. This was before the slip of paper was given by the appellant to Diggs. Appellant did not tell Diggs how to vote further than that an “X” at the top of the national ticket voted the entire ticket. When Diggs asked appellant this question, he further said, “I heard there was a piece of paper being given,” and appellant answered, “Tes, that is all right,” and while Diggs was marking his ballot appellant took out of his pocket a book, and tore from it a piece of paper, and turned to the wall and wrote thereon. Diggs marked and folded his ballot, and appellant put the slip of paper down by the side of it, and went out of the booth. The slip of paper contained the words, “Milby all right.” Diggs further testified that nothing was said as to how he should vote, and nothing as to what the slip of paper was for, and that appellant did not know how he (Diggs) voted. It is fair to infer, however, from the fact that appellant was in the booth while Diggs was marking his ballot that he did know how Diggs voted. Fred Woodson, who tvas instrumental in sending Diggs in to get the slip, and who piloted Diggs to Johnny Eobinson, where he is supposed to have received money thereon, was not called as a witness by the state, and no reason was given for not calling him. Eobinson was not a witness. Isaac Brown was. There was no testimony showing any acquaintanceship between Johnny Eobinson and the appellant, nor was it shown that they belonged to the same political party, or were in any way interested in the success of any particular candidate for office. But it is reasonable to infer from the testimony that Woodson was acting in the role of a detective, and that he knew the plans of the conspirators, and who had charge of the corruption fund; for he told Diggs that he would put him on to something after he voted, and the something he put him on to was getting the money from Eobinson. Dnder these facts the jury was justified in believing that the appellant and Eobinson were confederates in a scheme to corruptly influence electors, and that the ajDpellant’s part in the scheme was to give out information by means of the slip of paper to his confederates as to how the elector voted, in order that the corruptionmoney theretofore promised might be paid as promised. ■ The giving out by the judge of election of a slip of paper marked as this was is a strong circumstance tending to show that the appellant and some one on the outside were acting in concert in knowing how the elector to whom the slip was given voted. It is true that there was no attempt made by the appellant in the election booth to influence Diggs in giving his vote further than giving to1 him the slip of paper, and no attempt was made by any one on the outside to influence him in giving his vote. He did not know, when he came to vote and received the slip, what it indicated. He did not know it was of any value whatever. He did not know that it represented money. He did not learn this until after he had voted, and then from Isaac Brown at Brown’s store. He must have known, however, that it was given to him by the appellant for an unlawful purpose. notwithstanding the want of knowledge in the particulars we have indicated, on the part of Diggs, the jury was justified in believing that giving the slip of paper to him by the appellant was an act in furtherance of a general conspiracy between the appellant and others to corruptly influence voters at that election. So far as the appellant is concerned, the attempt to corruptly influence the voter was made by him when he gave to the voter the slip of paper on which .money, under a previous agreement between him and his co-conspirators, was to he paid to the voter producing the slip; and under such circumstances it is immaterial whether or not the voter knew the attempt to influence his vote was being made. The crime with which the appellant is charged is most detestable. If this crime prevails, then corruption will reign in high places, and representative government will speedily come to an end. Patriotic juries, when circumstances are disclosed such as in this case, are apt to convict, and the courts should not interfere with their verdicts unless there is an utter failure of evidence to support the same. We are convinced that the appellant intended to corrupt Diggs in giving his vote when he informed him he should receive the slip of paper, and that this intent was carried into execution when the slip of paper was given to the voter. So far- as the appellant was concerned, the part he was to perform in the attempt to corrupt the voter was consummated when he gave out the slip, and as to him the crime was complete. The information is in the statutory language, and sets forth the means by which the voter was to he corrupted in giving his vote, and we think-this is sufficient. Section 7421, supra, under which the information was drawn, and under which judgment was pronounced, is general in its language, and applies to all persons who attempt to corrupt the voter, and, in point of time, is the last expression of the legislative will.

The judgment of the court below is affirmed.

Reavis, C. J., and Fullerton, Dunbar, Anders, Mount and Hadley, JJ., concur.