Commonwealth v. Cover

Argued October 8, 1924. Defendant, Alex. Cover, who acted as one of the clerks at a primary election held in the 16th Ward of the City of Johnstown, September 18, 1923, was jointly indicted with four other election officers, viz, the judge of elections, two inspectors, and one other clerk, on a charge of making a false return of the votes cast in the election district named. All five defendants were convicted. Motions for a new trial and in arrest of judgment were made, but subsequently withdrawn as to all except Cover. The motions were overruled as to him and defendants sentenced. Cover appealed to the Superior Court which reversed the conviction as to him, and ordered his discharge, assigning two reasons, first, because the trial judge failed to properly instruct the jury as to the respective duties imposed by law on election officers, and, second, because the Commonwealth failed to prove defendants were duly elected, qualified and acting officers of election or that they were in any way connected with the making of false returns. On petition of the district attorney of Cambria County, the Commonwealth was allowed an appeal from the judgment of the Superior Court to this court, and the only questions involved here are the adequacy of the court's charge respecting the duties of election officers, and whether the evidence was sufficient to sustain the indictment.

The trial judge instructed the jury it was their duty, first, to determine whether ballots were altered and false returns made, and, if so, whether defendants, or any of them, wilfully caused this to be done. No instructions were given as to the respective duties of the several defendants until the close of the charge, at which time, in response to request of counsel, the court said further, "Counsel for the defense have asked us to call your attention to the different duties of judge of election, inspectors, etc., under the law. The law provides that none of these officers shall have a pencil in his possession during the count or reading of the ballots. You can take that into consideration in considering their respective duties. It was stated we believe, that Ed. M. Lysett was judge of election; John Quinn and John Pohl, inspectors; and Michael Havener and Alex. Cover, the clerks. You will take all that into consideration in arriving at the guilt or innocence of the defendants."

The foregoing instructions, it will be observed, do not contain a single word of information as to the duties imposed by law on the several election officers. The jury were thus without guide to aid them in deciding which, if any, of defendants were responsible for the irregularities found present in the returns. Their natural tendency would be, under the instruction given, to hold all equally liable as an election board, on the theory that their duties and obligations were identical, while, as a matter of fact, they are distinctly unlike, consequently a fraud may possibly have been committed by two or more of the members of the board without concurrence or knowledge of the others. The Act of July 9, 1919, P. L. 839, amending earlier primary election laws, provides, inter alia, that "the judge or one of the inspectors, in the presence of the other officers, shall read aloud the names marked or inserted upon the ballot, keeping the ballots of each party in sequence, together with the office for which the person named is a candidate, and any other relevant matter necessary to identify him, and the clerk shall carefully enter each vote as read, and keep account of the same in triplicate tally papers for each party, to be provided as aforesaid."

The duty of handling the ballots is by the act just referred to imposed upon the judge and inspectors, while the clerks are required to keep the tally sheets. The latter are without means of knowing whether ballots are correctly read and called, nor would it be possible in all cases for the former to personally see that the clerks entered the proper tally. Consequently, in this case it was of the utmost importance that the jury should be informed and understand that the duties of defendants were not identical and in what respect they differed, as such information was of the greatest significance in passing on the guilt or innocence of the respective defendants. The charge was wholly inadequate for this purpose.

Was evidence produced sufficient to convict defendant of the offense charged in the indictment? It cannot be denied that flagrant irregularities existed in connection with the making and filing of the election returns from the district in question. The computation board was composed of Judges EVANS and McCANN of the Court of Common Pleas of Cambria County, the county commissioners being disqualified because two of the members were candidates for reelection. Judge EVANS was called as a witness at the trial, and testified the ballot box was brought into court sealed; that when opened it contained all papers required by law to be returned, but that, upon examination of the contents of the box, they observed the ballots in many instances were mutilated by erasures and that in the vote for several candidates the ballots and tally sheet failed to agree. This evidence was ample to sustain the conclusion that one or more of the election officers were guilty of the offense charged. The contention of defendant, however, and the conclusion of the Superior Court is that this situation was not proof that an election was held at which defendant acted as one of the clerks, and, if so, there was nothing to connect him with the offense charged.

The indictment charged that defendant, on September 18, 1923, "being then and there the appointed, qualified and acting clerk of the election board of the Sixteenth Ward of the City of Johnstown, in said county, 'unlawfully and knowingly inserted and knowingly permitted to be inserted, certain false figures and other fraudulent entries in the tally paper, return sheet, statements, certificate, ballot and other records and documents authorized and required to be made, used, signed, returned and preserved for public purposes in connection with the primary election, then and there held.' " The Commonwealth proved the ballot box and returns remained in the custody of the persons authorized by law to receive and preserve them until delivered to the judges to be opened, and later offered in evidence the "triplicate return sheet of the Democratic party for an election held in the Sixteenth Ward of the City of Johnstown on the 18th day of September, 1923, in which Ed. M. Lysett is named as judge of election, John Quinn and John Pohl are named as inspectors, and Michael Havener and Alex. Cover are named as clerks." This offer was not objected to on the ground that it failed to identify defendant as the Alex. Cover whose signature appeared as clerk in the return sheet, but was based solely on the fact that the indictment did not refer to any primary election held, and further because the paper had not been identified. The return sheet was then identified by the witness as one of the primary election records turned over to Judge EVANS. In absence of denial that defendant was an election officer or of any question being raised as to the identity of defendant, the above evidence was ample to justify the conclusion that defendant was the person mentioned in the indictment and election returns. Identity of name is prima facie evidence of identity of person (Atchison v. McColloch, 5 Watts 13, 15; Clark v. Freeman, 25 Pa. 133; Hamsher v. Kline,57 Pa. 397; McConeghy v. Kirk, 68 Pa. 200; Lampeter Twp. Rd., 35 Pa. Super. 379); if identity is denied, identification may be established by proper evidence. This reason applies with special force here, where defendant was actually in court with opportunity to raise the question, if he were not in fact the Alex. Cover mentioned in the indictment. Under the circumstances, this court would not be justified in holding as matter of law that defendant's identity had not been established; the question accordingly would be for the jury. As counsel did not see fit to raise the question at the trial, it was no doubt an after-thought. In view of our disposition of the case, defendant will have ample opportunity to prove he was not, in fact, a member of the election board.

We conclude the judgment of the Superior Court reversing the judgment of the court of quarter sessions was proper because of the insufficiency of the charge to the jury on the question of the duties of defendant. On a retrial of the case, the jury should be instructed that if defendant faithfully performed the duties of his office as prescribed by the statute, and tallied the votes accurately as called by the judge or inspector, and did not participate in any fraud, he should be acquitted; the charge should further contain full instructions as to the duties of the respective election officers under the statutes.

Judgment modified and new trial ordered.