Barrow v. Commonwealth

OPINION op the Court by

Judge 'Barker

— Reversing.

James L. Barrow was indicted for knowingly preventing P. A. Bell .from voting at the general election in 1903, held in Gave Spring precinct No. 17, in Logan county, Ky. To this indictment he pleaded not guilty, but upon a trial before a jury he was found guilty, and his punishment fixed as the statute provides. From the judgment based upon this verdict he is here on appeal.

At .the election under consideration the appellant was clerk. F. A. Bell presented himself and offered to .vote, but a question was raised as to his right so to do. The judges differed as to this, and the sheriff decided, with that judge who favored the applicant’s right to vote. Although we think the evidence is vague and uncertain a:s to whether or not appellant refused to prepare and deliver a ballot to Bell after a majority of the judges had decided in favor of his right to vote, it may .be conceded after a verdict of guilty, that there was evidence sufficient to convict him. The first question arising on the record is. Whether or not that part of section. 1583, Ky. Stat., 1903, under which- the indictment was. found, applies to clerks of elections. The section is as. follows.: “Any officer of election who- shall receive, or assent to receive, or record a vote at an election at a time or place known by him not to. be the time and, place lawfully appointed, or who shall knowingly receive the vote of any other than a qualified votey, or so refuse to receive tbe vote of a qualified voter, shall, for every such offense, be fined from $50 to $500, forfeit any office be then holds', and be disqualified from ever bolding any office.”

Observe that three distinct offenses are here created and punished: (1) Tbe bolding of an election at an unlawful place or time; (2) knowingly receiving an unlawful vote; (3) knowingly refusing to receive a lawful vote. Tbe language as to tbe first includes all tbe officers of election, shown by denouncing tbe illegal exercise of tbe duties, of each'. It is made an offense to' receive, or assent to receive, or to record, a vote at an unlawful time or place. Here tbe word “record” shows the inclusion of tbe clerk, because to record tbe votes is bis particular duty. Tbe unlawful receiving or assenting to. receive votes includes only tbe judges and sheriff who discharge this duty. But tbe word “record” does not occur in describing tbe second and third offenses, and the omission is pregnant with significance. In these tbe illegal acts consist in knowingly receiving illegal, or'knowingly refusing to receive legal, votes. Tbe omission of the word “record” in connection with these offenses shows that tbe clerk was. not intended to be included, because to record, or refuse to' record, compasses bis whole duty in tbe premises. This is entirely consonant with reason. All tbe officers are forbidden to participate in an illegal election, and each is therefore forbidden to exercise bis particular duty with reference thereto. To bold- an illegal election all must participate, and therefore, to. prevent an illegal election, tbe exercise of tbe duty of each in reference thereto is made a crime. Not so as to tbe second and third offenses. With tbe receiving or refusing to receive votes, the clerk has ¡no voice under the statute. The decision as to the right of suffrage is primarily with the judges. If they disagree, then the sheriff acts as umpire between them. Section 1484, Ky. Stat. Sluppose the clerk should believe the proposed voter qualified, biit the judge® decided him unqualified; must the clerk, in the face of the decision of those having the right to decide this question, override their judgment and record the vote in spite of it? Of what avail is the provision of the statute that the judges must decide the question of the voter’s right to suffrage, if the clerk may veto their decision? And yet to this position we are driven if the clerk is included in the meaning of the statute under which this indictment was found. If a voter presents himself, who is known by the clerk to he a qualified voter, hut who the judges decide is unqualified, the clerk is placed in this position: If he refuses to give the voter a ballot and receive his vote, he is guilty of knowingly refusing to receive the vote of a qualified voter; if he gives the voter a ballot and records his vote, he overrides the opinion of the judges that the applicant is not qualified.

Such a construction of the statute would throw the holding of an eelction into chaos; and to escape so obvious an anomaly we conclude that the clerk had nothing to do with the receiving or refusing to receive votes, and is not included in the language of the statute under which the appellant is prosecuted. If the clerk refuses to' obey the order of the judges, he may he punished under section 1577, Ky. Stats., which is as follows: “Any public officer upon whom a, duty is imposed under this chapter, and no penalty provided for the violation thereof, who shall willfully neglect, to perform such, duty, or who shall willfully perform it in such a way as to hinder the objects of this law, shall be punished by a fine of fifty dollars and imprisonment in the county jail for two months.” Our conclusion is that that part of section 1583 under which appellant was indicted does not apply to the clerks.of election, and the demurrer to the indictment herein should have been sustained.

The judgment is reversed for proceedings consistent herewith.