Commonwealth v. McHale

Mr. Justice Paxson

delivered the opinions of the court, May 2d 1881.

Commonwealth v. MoHale, James T. Kelley, Feeney and OTHERS UNKNOWN.

Same v. Anthony MoI-Iale and others unknown.

The single assignment of error in each of the above cases is that the court below quashed the bill of indictment. As the cases are substantially identical they may be considered together.

The indictments were quashed upon the ground th.at the offences charged therein were barred by the Statute of Limitations. They were found by the grand jury on November 3d 1879. The time laid as the commission of the offence was November 5th 1877. This lacks two days of the limitation of two years prescribed for the prosecution for misdemeanors by the 77th section of the Criminal Procedure Act of 1860. The court below held, however, that the latter act did not apply, for the reason that the prosecutions were under the Act of 2d July 1839, Pamph. L. 519, entitled, “An act relating to the elections of this Commonwealth,” the 128th section of which provides that all prosecutions under said act shall be instituted “within one year next after the cause thereof shall accrue, unless otherwise herein provided.” We need not discuss the question whether the limitation contained in this section is repealed by the subsequent Act of 1860, before referred to. We decide the case upon other grounds.

The Act of 1839, with its various supplements, constitutes the Election Code of this state. It defines a large number of offences connected with the holding of elections. The greater portion of them are offences by election officers, though illegal voting and certain acts of unlawful interference with elections and election officers are also prescribed and punished.

The case of the defendants, however, does not come within the Act of 1839, and conséquently not within its limitation. The indictments charge them with a conspiracy to do the things, or at least some of the things prohibited by said act. The object of the conspiracy, as set forth in the first count of the indictment, was “ to procure a false, fraudulent and untrue count and return of the votes so cast by the said electors,” &c. The count then sets forth divers overt acts, some of which, if committed by the parties, would render them amenable to the penalties of the Act of 1839. The second and third counts charge a conspiracy of a like object and similar character, followed by other overt acts committed in furtherance of said conspiracies. The fourth and fifth counts set out the conspiracy but omit the overt acts, being what is known in criminal pleading as the common counts.

It was urged that inasmuch as the particular offences averred as constituting the overt acts were barred by the statute when the indictments were found, the court below was right in quashing the bills. This does not follow. The error into which the learned judge fell was in losing sight of the precise nature of the offence charged, and in supposing the indictment was under the Act of 1839. The indictments were for a conspiracy — a common-law offence — and with which the Act of 1839 has nothing whatever to do. The gisn of this offence is the combination — the unlawful agreement to do the particular thing. And the offence is complete, as all the authorities agree, the moment the combination is formed. The overt acts are no- part of the crime charged; they are merely the evidence of it; the iheans by which the Commonwealth is enabled to prove the conspiracy itself. The object of setting them forth in the indictment is to furnish notice to the defendants of the particular acts the Commonwealth relies upon as evidence of their having acted in concert. In this respect they supply the place of a bill of particulars. The fact of the combination is almost always inferred by the jury from the acts, the overt acts of the parties, as direct evidence in the shape of declarations can seldom be shown. When established, a conspiracy has always been regarded as a serious offence. It is the combination that makes it so. There are many things that one man may do that two or more may not combine to do. In the recent case of Commonwealth v. Bartilson, 4 Norris 487, we had occasion to review this branch of the law of conspiracy with some care, and need not repeat what was there said.

The fourth and fifth counts, as before stated, set forth no overt acts, and there is nothing to connect them even by implication with the Act of 1889.

It is manifest, from what has been said, that as the indictments charge a common-law conspiracy, they are within the limitation of the Act of 1860, and are not barred until after two years.

It was urged, however, that the indictments were properly quashed because not signed by the district attorney. They were signed by Guy E. Earquhar, Esq., who was specially appointed by the court to try these cases, under the Act of 12th March 1866, Pamph. L. 85. The appointment appears to have been regularly made in accordance with the provisions of said act, and was eminently proper, as the district attorney was a candidate at the general election at which the alleged frauds were committed, and which frauds, it is stated, increased his vote. It would therefore have been a breach of professional and official propriety for him to have acted as district attorney in these cases. But it is said the appointment was illegal because the Constitution adopted since the act of 1866 was passed, makes the district attorney a constitutional officer, and as such he cannot be stripped of his powers by the legislature. There is little force in this suggestion. While the legislature may not abolish the office, it can control the officer. They can regulate the performance of his duties, and punish him for misconduct, as in the case of other officers. And where he neglects or refuses to act, or where, from the circumstances of a given case, it is improper and indelicate for him to act, it is competent for the legislature to afford a remedy. This is all that the Act of 1866 does, and we think its provisions are not obnoxious to any constitutional provision.

The order quashing the indictment is reversed in each case, and a procedendo awarded.

Commonwealth v. Anthony McIIale. Same v. James T. Kelley.

Same v. John J. Kelly.

Paxson, J.

The court below quashed the indictment in each of the above cases, upon the ground that the offences charged were barred by the Statute of Limitations. If, as was assumed by the learned judge, the indictments are under the Act of July 2d 1839, and its supplements, and the limitation of one year contained in said act is not enlarged by the 77th section of the Criminal Procedure Act of 31st March 1860, his conclusion is not inaccurate. A careful comparison of the several indictments with the Act of 1839 and its supplements leads us to the conclusion that they are not laid under it, and hence do not come within its limitation. One of them, Com. v. John J. Kelly, No. 300, Jan. T. 1880, may have been intended to come within the provisions of section 106 of said act, but the indictment does not charge the precise offence defined in said section, although it does one of a similar nature. Nor are wo able to find any other Act of 'Assembly which will sustain those indictments. If, however, the acts charged are offences at common law they would not come within the limitation claimed for the Act of 1839. The 178th section of the Crimes Act of 31st March 1860, Pamph. L. 425, provides that “ every felony, misdemeanor or offence whatever, not specially provided for in this act, may and shall be punished as heretofore.” This is a saving section, leaving every crime not specially provided for in this act punishable as heretofore: Report on Penal Code 37. Under it an indictment will lie against a woman as a common scold: Com. v. Mohn, 2 P. F. Smith 243.

The indictment against Anthony McIIale contains throe counts. In the first count it is charged that “ intending to procuro a false count and return of the votes cast by the electors,” &c., he did “ make false and fraudulent entries in the hooks kept by the clerks at said election in said election district, which hooks are commonly known as the list of voters, of the names of divers persons, to wit, twenty-one persons whoso names are as follows,” &c. The second count charges that, with like intent, he did “ deposit among the ballots cast at said election in said election district by the electors voting thereat, false and fraudulent ballots of a large number, to wit, twenty-one ballots,” &e. The third count charges that with like intent he did, “ with the connivance of the election officers holding said election, undertake and assume to count the ballots cast by the electors voting at said election in said election district, and did falsely, fraudulently, maliciously and unlawfully make a false and fraudulent count of said ballots as to make it appear that two hundred and eleven votes were deposited for one Adolph W. Schalck for the office of district attorney, when in truth and in fact he did not receive more than one hundred and eighty-five votes,” &c. o( <v* C

The indictmenti against 'James T. Kelley charges! that with a similar intent to procure a false count, he did ‘f deposit among the ballots cajist at said election, in said election district, by th¿ electors voting thereat, false and fraudulent ballots of a large number, to wit: twe.nty-one ballots,” &c. ,,

The indictment, against John J. Kelly charges substantially the same offence as is set out in the first count of the,! indictment against McITale. ^ !

Some‘of these offences, perhaps all of them, are indictable under the Act of 1839, and its supplements, when committed by election officers. The defendants were not election officers; at least, they were not indicted as such.

It must be conceded that offences which strike at the purity and fairness of elections are of a grave character. Are they indictable at the common law ? This is a serious and at the same time comparatively new question. In considering it, we have little in the way of authority to guide us.

It was assumed by the learned counsel for the defendants that an indictment will not lie at common law for such acts. In their printed argument they dismiss the subject with this brief remark: “ Offences against the election laws are unknown to the common law; they are purely and exclusively of statutory origin.” It may safely be admitted that if the question depends upon the fact whether a precise definition of this offence can be found in the text books, or perhaps in the adjudged English cases, the law is with the defendants. This, however, would be a narrow view, and we must look beyond the cases and examine the principles upon which common-law offences rest. It is not so much a question whether such offences have been so punished as whether they might have been.

What is a common-law offence ?

The highest authority upon this point is Blackstone. In chap. 13, of vol. 4, of Sharswood’s edition, it is thus defined : “ The last speciesjjjóf offences which especially affect the Commonwealth are those against the public police or economy. By the public police and economy I mean the due regulation and domestic order of the kingdom, whereby the individuals of the state, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood and good manners, and to be decent, industrious and inoffensive in their respective stations. This head of offences must therefore be very miscellaneous, as it comprises all such crimes as especially affect public society, and are not comprehended under any of the four preceding series. These amount some of them to felony, and others to mis-demeanors only.” Th.e learned author then proceeds to define certain offences of both classes which aro among the crimes against the public police or economy. The felonies I will omit. The misdemeanors aro: 1. Common or public nuisances, of which a large variety are given, commencing with obstructions to public highways and ending with common scolds. 2. Idleness. 3. Sumptuary laws. 4. Gaming. 5. Destroying game. These, as the text shows, are but illustrations. A large number of these and other common-law offences are now, and have for many years been regulated by statute in England. But in most instances the statute is merely declaratory of the common law, the object being to define the crime with greater accuracy or to increase the punishment.

The above quotation from Blackstone is in harmony with other text writers. Bishop in his work on Criminal Law, vol. i., sects. 358 and 368 (1st ed.) says : ‘ The government requires its subjects to do more than simply abstain from attempting its overthrow. It requires them to give, when called upon, their active assistance to it. and at ail times to refrain from casting obstructions in the way of its several departments and functions. Therefore every violation of these duties, being sufficient in magnitude for the law to regard, is criminal. * * * We see it to be of the highest importance that persons be elected to carry on the government in its various departments, and that in every case a suitable choice he made. Therefore any act tending to defeat these objects, as forcibly or unlawfully preventing an election being held, bribing or corruptly .influencing an elector, casting more than onevote, is punishable under the criminal common law.” Mr. Wharton in his work on Criminal Law, vol. i. sect. 6 (6th ed), places the giving of more than one vote at an election as among the misdemeanors at common law. The Supreme Judicial Court of Massachusetts in two cases has recognised the same doctrine. The first was Commonwealth v. Silsbee, 9 Mass. 417, which was an indictment charging that the defendant did “wilfully, fraudulently, knowingly and designedly give in more than one vote for the choice of selectmen of the said town of Salem at one time of balloting, &c.” After conviction the defendant moved in arrest of judgment that there was no statute covering the offence. It was said by the court: 44 There cannot be a doubt that the offence described in the indictment is a misdemeanor at common law. It is a general principle that where a statute gives a privilege, and one wilfully violates such privilege, the common law will punish such violation. In town meetings every qualified voter has equal rights, and is entitled to give one vote for every officer to bo elected. The person who gives more infringes and violates the rights)of other voters, and for this offence the common law gives the indictment.” The other ease is Commonwealth v. Hoxey, 16 Mass. 385. The defendant was charged with disturbing a town meeting assembled to make choice of town officers for the political year then ensuing, and that the said defendant, “ intending as much as in him lay to prevent the choice of said selectmen according to the will of the electors and to interrupt the freedom of election, unlawfully and disorderly did openly declare that the old selectmen should not be chosen, and attempted repeatedly to take from the box, which contained the ballots of the electors, the votes of the electors,” &c. The defendant pleaded guilty to the indictment, and moved in arrest of judgment; “ because the said indictment purports to be founded upon a statute law of the Commonwealth; whereas there is no such statute in the state making the facts set forth in the indictment an offence against the Commonwealth; and because the facts set forth in the indictment do not amount to an offence at common law.” The court, after admitting there was no statute to meet the case, proceeded to say: “ The remaining question is, do the facts charged amount to an offence at common law ? On this question we entertain no' doubts. Here was .a violent and rude disturbance of the citizens, lawfully assembled in town meeting, and in the actual exercise of their municipal rights and duties. The tendency of the defendant’s conduct was to a breach of the peace, and to the prevention of elections necessary to the orderly government of the town, and due management of its concerns for the year. It is true that the common law knows nothing perfectly agreeing with our municipal assemblies. But other meetings are well known and often held in England, the disturbance of which is punishable at common law as a misdemeanor. In this Commonwealth town meetings are recognised in our Constitution and laws; and the elections made and business transacted by the citizens at those meetings lie at the foundation of our whole civil polity. If then there were no statute prohibiting disorderly conduct at such meetings, an indictment for such conduct might be supported.” While the court put this case partly upon the ground that the defendant’s conduct tended to a breach of the peace, it is evident the principal reason was the interference with the rights of the electors, which as the learned judge truly said “lie at the foundation of our civil polity,” and it may be safely asserted that every fraud upon the ballot tends directly to a breach of the public peace if not to revolution and civil war.

We are of opinion that all such crimes-as especially affect public society are indictable at common law. The test is not whether precedents can be found in the books, but whether they injuriously affect the public police and economy.

It needs no argument to show that the acts charged in these indictments ..are of this character. They are not only offences which affect public society, but they affect it in the gravest manner. An offence against the freedom and purity of elections is a crime against the nation. It strikes at the foundations of republican institutions. Its tendency is to prevent the expression of the will of the people in the choice of rulers, and to weaken the public confidence in elections. When this confidence is once destroyed the end of popular government is notí¡distant. Surely, if a woman’s tongue can so far affect the good of society as to demand her punishment as a common scold, an offence which involves the right of a free people to choose their own rulers in the manner, pointed out by law is not beneath the dignity of the common law, nor beneath its power to punish. The one is an annoyance to a small portion of the body politic; the other shakes the social fabric to its foundations.

We are of opinion that the offences charged in these indictments are crimes at common law. We regard the principle thus announced as not only sound but salutary. The ingenuity of politicians is such that offences against the purity of elections are constantly liable to occur which are not specifically covered by statute. It would be a reproach to the law were it powerless to punish them.

It follows from what has boon said that it was error to quash the indictments.

The judgment is reversed in each caso, a-nd a procedendo awarded.