Byrne v. State , 12 Wis. 519 ( 1860 )

By the Court,

Dixon, C. J.

Hone of the authorities cited by the counsel for the plaintiffs in error sustain the position that, where knowledge of the disqualification of any of the grand jurors by whom the indictment was preferred, does not come to the accused until after the trial and verdict, he may then avail himself of such defect by motion in arrest of judgment. Whilst in some of the states it is held that ■ obj ections like the present, which do not go to the character of the juror, but are strictly legal and technical in their nature, can only be taken by way of challenge and before the indictment is returned and filed (3 "Wend., 314; 6 id., 386; 9 Mass., 107), and in others that they may be plead in abatement (1 Grab, 556; 7 Eng., 630; 7 Yerg., 271; 12 Texas, 252), and in others still that they may be shown by motion at the time the defendant is arraigned (4 Greenleaf, 439 ; 36 Maine, 128), it is agreed in all that they cannot be listened to after a plea to the merits. The delays and inconveniences in the administration of criminal justice which would follow from the adoption of a different rule, would be immense, and the ends of substantial justice would not be in the least promoted by it. There was therefore no error in the ruling upon this point.

In giving a construction to the statute under which the indictment was found, we cannot adopt the distinction made by counsel between the positive and negative qualities of the voter, or those things which under the constitution and laws are said to give, and those which are said to take away from the individual, the elective franchise. We cannot for a moment believe that the legislature, in framing and passing the statute, contemplated or intended to recognize such a distinction. On the contrary it seems to us plain that the word “ qualifications ” was not used in the limited sense in which it occurs in the constitution, but with reference to its more enlarged meaning when all the laws touching the privilege of the party offering to vote were applied to the facts of the case. Violations of the laws with respect to those things which are necessary to confer, and those which are declared to destroy the privilege where it once existed, are equally within the mischiefs which the act was designed to prevent; and the restriction of its operation to cases of the first class would manifestly defeat the intention of the legislature. The language used, when understood according to its ordinary grammatical signification, is broad enough' to cover both. The words “ any person not having all the qualifications of an elector ” are equivalent in their effect and meaning to the words any person disqualified, incapacitated or disentitled, from any of the causes fixed by law, and refer of course to the state or condition of the person at the time his vote is received. The case made by the testimony is therefore within the provisions of the statute.

It was not necessary to state in the indictment that the person from whom the vote was received did not take the oath prescribed by section 36, of chapter 7 of the Revised Statutes. The rule seems to be universal that where the exception is in a separate section of the statute, or in a proviso which is distinct from the enacting clause, it then becomes a matter of defense which the prosecution need not anticipate or notice. In order to become material for him to negative, it must be contained in and form a part of the enacting clause itself. Here the enacting clause, so far as the offense charged is concerned, is the first division of section 42, chapter 169, and the exception is found in section 39jof chap. 7. No direct reference is made in the enacting clause to section 39 or any other part of chapter. 7, nor is the same or any part of it incorporated into it. It is true that we are obliged to look to chapter 7 to ascertain when an offense has been committed, and the defendants, in a proper case, might be compelled to rely on its provisions to confirm their innocence ; but this does not make that chapter a part of the enacting clause, as was,contended by counsel. Counsel referred, and very properly, to the provisions of the constitution to ascertain what were the qualifications of the elector, and if it be true that chap. 7 be a part of the enacting clause, then why is not the constitution and all other laws which have a bearing upon the question ? To hold that the prosecutor was in this case bound to aver that Pierce did not take the oath prescribed by section 36, would be to impose on him the intolerable burden of denying in advance all the defenses which the accused might by law set up or urge. It was properly omitted in the indictment.

The objection of duplicity is untenable. The rule is well settled that, where a statute makes either' of two or more distinct acts, connected with the same general offense and subject to the same measure and kind of punishment, indictable separately and as distinct crimes, when each shall have been committed by different persons or at different times, they may, when committed by the same person at the same time, be coupled, in one count, as constituting altogether but one offense. In such cases the several acts are considered as so many steps or stages in the same affair, and the offender may be indicted as for one combined act in violation of law; and proof of either of the acts mentioned in the statute and set forth in the indictment will sustain a conviction. Among the numerous authorities on this subject, we refer to the following: R. vs. Bowen, 1 Denison’s C. C., 21; State vs. Fletcher, 18 Mo., 425; State vs. Morton, 27 Vt., 310; Mackey vs. State, 3 Ohio St., 363; Stoughton vs. State, 2 id., 562; Commonwealth vs. Twitchell, 4 Cush., 74; Hinkle vs. Com., 4 Dana, 518; and State vs. Price, 6 Halst., 203. There can be no doubt that the receiving and sanctioning the reception of a vote, under the circumstances stated in the statute, are distinct offenses, and when committed separately may be indicted as such, but the indictment is not double or uncertain because both are joined in the same count for the reasons above stated. According to the authority of Mr. Ohitty, it may indeed be doubtful whether the objection of duplicity can be urged in any case of misdemeanor. At page 54 of the 1st volume of his treatise on criminal law, he says : “In the case of misdemeanors, the joinder of several offenses will not, in general, vitiate in any stage of the prosecution. Eor, in offenses inferior to felony, the practice of quashing the indictment, or calling on the prosecutor to elect on which charge he will proceed, does not prevail. But on the contrary, it is the constant practice to receive evidence of several libels and assaults upon the same indictment It was indeed formerly held that assaults on more than one individual could not be joined in the same proceeding, but this is now' exploded.”

It is very possible, as was contended by the counsel for the state, that the language of the record does not express the views of the learned judge who presided at the trial in the circuit, nor accurately convey the ideas which he intended to give to the jury, but that is a matter which we cannot notice. "We must be governed by the record as we find it, and by the charge as we understand and as we suppose the jury must have understood it. According to the record, we are informed that the jury were told that if the plaintiffs in error knew the facts which were relied upon as and which the judge held did constitute, such a wager as disqualified Pierce, then they were guilty of the offense described in the statute, and that it made no difference whether their receiving, or sanctioning the reception of, his vote under such circumstances, was or was not the result of an honest but misguided judgment on their part, of the law arising from those facts, and that an honest ignorance of the law would not excuse them when thus-acting. These instructions are so obviously incorrect, and the opposite proposition so strongly fortified by the principles of natural reason and justice, that it needed not the vast array of authorities cited by counsel to establish it. Whether there was a wager, was a question of law and fact combined, in passing upon which the plaintiffs in error were acting in an official and quasi judicial capacity, and were bound to determine the law as well as the facts. They were obliged by law to act and to decide upon the qualifications of every person offering, as a duly qualified elector, to vote at the polls at which they presided. When those qualifications were, by some proper method, called in question, and when so acting, the most that reason or justice could require of them was a Iona fide effort to discharge their duties according to the best of their knowledge and ability; and if, in so doing, they committed an obvious but sincere mistake of the law or error of judgment, they are not criminally responsible therefor. The law only required of them true candor and sincerity, and it will only punish them for corruption and falsehood — for acting contrary to their own sense of duty and the dictates of their own consciences. In this sense we understand the word “ knowingly ” to be used in the statute: that is, knowing that their duty and the obligation of their oaths commanded them to act otherwise. It is the wicked intent or corrupt motive which the laws punish as a crime, and it cannot be supposed that it was the intention of the legislature, in this instance, to substitute for them the upright but misdirected efforts of the mind or judgment of one whose action was not voluntary but in obedience to the requirements of the law. The maxim that ignorance of the law will not excuse, could, only be applied to this case so far as to prevent the plaintiffs in error from setting up their ignorance of the penalties inflicted by it as an excuse for their willful violation of the duties which it imposed upon them. This they clearly could not do. Upon this last point the judgment of the circuit court is reversed, and a venire de novo awarded.