George v. State

Hodges, J.

The prosecution was based upon section 660, subsection 6, of the Penal Code, which provides that any person “who shall deposit or aid or abet another to deposit a ballot at any election in any name other than his own, as appears on the list of registered voters prescribed by law,” shall be guilty of a misdemeanor. It was alleged that at a Democratic primary election, held for the purpose of nominating a candidate from the Democratic party to fill the unexpired term of a named person as tax-collector for Chatham county, the defendant deposited a ballot in a name other than his own, as said name appeared on the list of registered voters, etc. He was convicted, and moved in arrest of judgment, on the ground that the verdict and judgment were illegal and void, in that the facts stated in the accusation did not constitute an offense under the laws of this State. The motion was overruled, and he excepted.

As it reads, the law referred to above does not include a primary election. See People v. Cavanaugh, 112 Cal. 674, 676 (44 Pac. 1057), where it was held that the word “election” in an act entitled “An act to promote the purity of elections by regulating the conduct thereof,” etc., does not mean primary election. In Commonwealth v. Helm, 9 Ky. Law Rep. 532, it was held that the term “election,” in a statute making it criminal to bet upon the result of an election under the constitution and laws of the commonwealth or of the United States, does not include a primary election. In Woodruff v. State, 68 N. J. L. 89 (52 Atl. 294), it was held that a primary election is not an election, so as to render a fraud committed at a primary election within the common-law offense of fraud at an election. Judgment reversed.