B. having been indicted under Rev.Stat. § 5511 for voting more
than once at the same election for a Representative in Congress, a
special deputy of the marshal swore at the trial that he saw B.
vote twice at the poll. On cross-examination, he was asked why be
did not arrest B. when he saw that he had thus voted. The question,
being objected to, was excluded.
Held that it was
irrelevant and was properly excluded.
The refusal by a federal court to grant a new trial cannot be
reviewed on a writ of error.
An indictment under Rev.Stat. § 5511 for knowingly personating
and voting under the name of another at an election at which a
Representative in Congress and also state officers were to be
elected, is fatally defective if it fails to clearly charge that
the accused so voted for a Representative in Congress.
A count in an indictment under that section which charges that
the defendant did then and there unlawfully, knowingly, and
feloniously vote at said election for a candidate for the same
office for Representative in the Congress of the United States more
than once describes the offense with sufficient certainty, and the
election at which it took place sufficiently by such reference to
the date of it named in a previous count in the indictment.
Page 153 U. S. 309
The indictment in this case contained three counts, specifying
three separate offenses against Rev.Stat. § 5511. The defendant was
convicted of all. A motion in arrest of judgment under the second
count being entertained, he was sentenced under the first
conviction to imprisonment for a term commencing on a day named,
and under the third conviction to a further term commencing on the
expiration of the first term. This Court, holding the first count
in the indictment to he fatally defective, and sustaining the
arrest of judgment under the second count, directs that the term of
imprisonment under the third count shall be held to commence on the
day named for the commencement of the first term.
The case is stated in the opinion.
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
By section 5511 of the Revised Statutes of the united states it
is provided:
"If at any election for representative or delegate in Congress,
any person knowingly personates and votes or attempts to vote in
the name of any other person, whether living, dead, or fictitious,
or votes more than once at the same election for any candidate for
the same office, or votes at a place where he may not be lawfully
entitled to vote, or votes without having a lawful right to vote,
or does any unlawful act to secure an opportunity to vote for
himself or any other person, or by force, threat, intimidation,
bribery, reward, or offer thereof unlawfully prevents any qualified
voter of any state or of any territory from freely exercising the
right of suffrage, or by any such means induces any voter to refuse
to exercise such right, or compels, or induces, by any such means,
any officer of an election in any such state or territory to
receive a vote from a person not legally qualified or entitled to
vote, or interferes in any manner with any officer of such election
in the discharge of his duties, or by any such means, or other
unlawful means, induces any officer of an election or
Page 153 U. S. 310
officer whose duty it is to ascertain, announce, or declare the
result of any such election, or give or make any certificate,
document, or evidence in relation thereto, to violate or refuse to
comply with his duty or any law regulating the same; or knowingly
receives the vote of any person not entitled to vote, or refuses to
receive the vote of any person entitled to vote, or aids, counsels,
procures, or advises any such voter, person, or officer to do any
act hereby made a crime, or omit to do any duty the omission of
which is hereby made a crime, or attempts to do so, he shall be
punished by a fine of not more than five hundred dollars, or by
imprisonment not more than three years, or by both, and shall pay
the costs of the prosecution."
Under this statute, an indictment was found against the
plaintiff in error in the District Court of the United States for
the Western Division of the Western District of Missouri. That
indictment was as follows:
"The grand jurors of the United States of America, duly chosen,
selected, impaneled, sworn, and charged to inquire of and
concerning crimes and offenses in the Western District of Missouri
and Western Division thereof, on their oaths present that on the
8th day of November, A.D. 1892, at Kansas City, in the County of
Jackson and State of Missouri, there was then and there an election
duly and in due form of law had and held for choice of
representative in the Congress of the United States, which said
place aforesaid was then and there a portion of the Fifth
Congressional District of Missouri."
"And the grand jurors aforesaid, upon their oaths aforesaid, do
further find and present that at the said election, one Morris
Blitz did
Page 153 U. S. 311
then and there unlawfully, falsely, knowingly, and feloniously
personate and vote and attempt to vote in the name of another
person other than his own name, to these grand jurors unknown,
contrary to the form of the statute in such cases made and
provided, and against the peace and dignity of the United
States."
"And the grand jurors upon their oaths aforesaid, in the name
and by the authority of the United States, do further find and
present that at said election the said Morris Blitz did then and
there, in the Western Division of the Western District of Missouri,
unlawfully, falsely, knowingly, and feloniously vote at a place,
to-wit at the Sixth Precinct in the Second Ward in said city, where
he was not then and there lawfully entitled to vote, contrary to
the form of the statute in such cases made and provided, and
against the peace and dignity of the United States."
"And the grand jurors aforesaid, upon their oaths aforesaid, in
the name and by the authority of the United States, do further find
and present that at the said election the said Morris Blitz did
then and there, in the Western Division of the Western District of
Missouri unlawfully, knowingly, and feloniously vote at said
election for a candidate for the same office for representative in
the Congress of the United States more than once, contrary to the
form of the statute in such cases made and provided, and against
the peace and dignity of the United States."
A verdict of guilty having been returned upon each count of the
indictment, the defendant moved for a new trial and in arrest of
judgment upon written grounds filed. The motion for a new trial was
denied, and the motion in arrest of judgment was sustained as to
the second count of the indictment, and overruled as to the first
and third counts. Thereupon the defendant was sentenced upon the
first count to imprisonment in the penitentiary for the period of
one year and a day, such imprisonment to begin on the 28th day of
November, 1893, on which day the sentence was pronounced, and, upon
the third count, to imprisonment for a like period, to begin upon
the expiration of the sentence upon the first count.
1. The first assignment of error relates to the refusal of the
court below to permit Wachs, a witness for the prosecution, to
answer a certain question propounded to him on cross-examination.
Upon examination in chief, the witness states that he was a special
deputy of the United States marshal at the general election in
November, 1892; that during the whole of the day of the election,
he was at the voting place in precinct No. 6, in Kansas City,
Missouri, and that he saw
Page 153 U. S. 312
Blitz, whom he had known by sight for about three years, vote
twice at that poll, once in the morning, about 10 o'clock, and
again in the afternoon, between 3 and 4 o'clock. Upon
cross-examination, he was asked, "Why did you not arrest Blitz when
you saw that he had voted?" The witness was not allowed to answer
this question, and to that action of the court the defendant
excepted.
The question was clearly irrelevant, and was properly excluded.
The reasons, whatever they may have been, that induced the witness
not to arrest the defendant when the latter voted the second time
at the same election, did not throw any light upon the issue to be
determined. If the object was to test the accuracy or credibility
of the witness, it is quite sufficient to say that the extent to
which a cross-examination may be allowed for such a purpose,
especially where, as in this case, the question had no reference to
any matter disclosed by the examination in chief, is largely
subject to the sound discretion of the trial court, and the
exercise of that discretion is not reviewable upon writ of error --
certainly not where the question, upon its face, suggests nothing
material to the inquiry whether the defendant is guilty or not
guilty of the specific offense charged in the indictment.
2. The overruling of the motion for new trial is next assigned
for error. We had supposed that it was well understood by the bar
that the refusal of a court of the United States to grant a new
trial cannot be reviewed upon writ of error.
Parsons v.
Bedford, 3 Pet. 433,
28 U. S. 447;
Railroad Co. v. Fraloff, 100 U. S. 24;
Wabash Railway Co. v. McDaniels, 107
U. S. 456.
3. The third assignment of error relates to the overruling of
the motion to arrest the judgment upon the first and third counts
of the indictment.
We are of opinion that this motion should have been sustained in
respect to the first count. The statute makes it an offense for any
person to knowingly personate and vote or attempt to vote in the
name of another person, whether living, dead, or fictitious at an
election for representative or delegate in Congress. It appears in
this case -- and if it did
Page 153 U. S. 313
not appear, the Court would judicially know -- that the election
referred to in the introductory part of the indictment was a
general one at which voters were at liberty to vote at the same
poll, by printed ballot, not only for a representative in Congress,
but for state officers, including Presidential electors. It was one
election for all such officers, and the exercise of the privilege
of voting was manifested by one act upon the part of the voter,
namely, depositing in the ballot box a general ballot showing upon
its face for what officers he voted.
The first count charged that the defendant knowingly personated
and voted, and attempted to vote, in the name of another person to
the grand jurors unknown at an election had and held for choice of
representative in the Congress of the United States. But that was
not, except by inference, a charge that the defendant in fact voted
for representative in Congress. He may have voted only for state
officers, and yet it could be said, not unreasonably, that he voted
at an election had and held for representative in Congress. If, in
voting for a state officer at such election, he knowingly
personated and voted in the name of another, it was an offense
against the state, punishable alone by the state, although the
general election at which he voted was one at which a
representative in Congress was chosen. The object of section 5511
was to prevent frauds that would affect the vote for
representatives in Congress, and not to bring elections for state
officers under the control of the general government. It was
consequently held, in
Coy's Case, that a conspiracy by
unlawful means to induce the officers of election appointed by the
state to omit the duty imposed upon them by the state law in
respect to the custody and safekeeping of sealed returns showing
the results of an election held for both state officers and for
representatives in Congress, was an offense against the United
States, although the only purpose of the conspirators may have been
to obtain the custody of such returns for the purpose of
fraudulently changing them so far as they applied to certain state
officers. This Court, speaking by Mr. Justice Miller, said:
"The object to be
Page 153 U. S. 314
attained by these acts of Congress is to guard against the
danger and the opportunity of tampering with the election returns,
as well as against direct and intentional frauds upon the vote for
members of that body. The law is violated whenever the evidences
concerning the votes cast for that purpose are exposed or subjected
in the hands of improper persons or unauthorized individuals to the
opportunity for their falsification, or to the danger of such
changes or forgeries as may affect that election, whether they
actually do so or not, and whether the purpose of the party guilty
of thus wresting them from their proper custody and exposing them
to such danger might accomplish this result."
Again:
"The manifest purpose of both systems of legislation is to
remove the ballot box, as well as the certificates of the votes
cast, from all possible opportunity of falsification, forgery, or
destruction, and to say that the mere careless omission, or the
want of an intention on the part of persons who are alleged to have
acted feloniously in the violation of those laws, excuses them
because they did not intend to violate their provisions as to all
the persons voted for at such an election, although they might have
intended to affect the result as regards some of them, is
manifestly contrary to common sense, and is not supported by any
sound authority."
In re Coy, 127 U. S. 731,
127 U. S.
754-755.
It is not to be inferred from the decision in that case that
section 5511 is applicable to any act or omission of duty upon the
part of an officer of election, or of a voter or other person,
except such act or omission of duty as affected or might affect the
integrity of the election for a representative in Congress. The
conspiracy charged in that case did imperil the integrity of the
vote for representative in Congress, because the returns of the
election related to representative in Congress as well as to state
officers, and were liable to be falsified if they passed, before
certificates of election were issued, into the hands of
unauthorized persons. But this reasoning has no application to the
present case. Voting, in the name of another, for a state officer
cannot possibly affect the integrity of an election for
representative in Congress. With frauds of
Page 153 U. S. 315
that character the national government has no concern, and
therefore an indictment under section 5511 for knowingly
personating and voting under the name of another should clearly
show that the accused actually voted for a representative in
Congress, and not simply that in voting he falsely personated
another at a general election at which such representative was or
could have been chosen. In cases like the present one, it should
not be left in doubt, or to mere inference, from the words of the
indictment, whether the offense charged was one within federal
cognizance.
United States v. Morrissey, 32 F. 147;
United States v. Seaman, 23 F. 882. The general rule that
an indictment for an offense purely statutory is sufficient if it
pursues substantially the words of the statute is subject to the
qualification, fundamental in the law of criminal procedure,
"that the accused must be apprised by the indictment, with
reasonable certainty, of the nature of the accusation against him,
to the end that he may prepare his defense, and plead the judgment
as a bar to any subsequent prosecution for the same offense."
United States v. Simmonds, 96 U. S.
360,
96 U. S. 362;
United States v. Hess, 124 U. S. 483,
124 U. S. 488.
As said in
United States v. Carll, 105
U. S. 612, it is not sufficient to set forth the offense
in the words of the statute
"unless those words of themselves fully, directly, and
expressly, without any uncertainty or ambiguity, set forth all the
elements necessary to constitute the offense intended to be
punished."
The want of care in framing the first count is further shown by
the fact that although voting and attempting to vote knowingly in
the name of another for representative in Congress may be distinct
offenses under the statute, the indictment charges that the
defendant did knowingly "personate and vote and attempt to vote" in
the name of another person. If the attempt to so vote was
immediately followed by voting, then the allegation that the
accused attempted to vote was unnecessary. The first count leaves
it in doubt whether it was intended to charge two distinct offenses
or only the offense of voting in the name of another person. This
defect alone might not have been sufficient, after verdict, as
ground
Page 153 U. S. 316
for arresting the judgment on that count, but it is referred to
as supporting of illustrating the rule that enjoins such certainty
in an indictment as will inform the accused of the precise nature
of the charge against him.
In respect to the third count of the indictment, but little need
be said. It is clearly sufficient, for it charges that "at said
election" the defendant voted more than once for representative in
Congress. Such double voting is made an offense by the statute. The
only question that could arise upon the third count is whether the
words of the first count, referring to the election had and held on
the 8th day of November, 1892, for representative in Congress, can
be drawn through the second count into the third count by the
words, "at the said election." As the election named in the first
count is the only one specifically described in the indictment,
there can be no doubt that the words "at said election," in the
third count, refer to the election described in the first
count.
In
Commonwealth v. Clapp, 16 Gray 238, where the
question was as to the sufficiency of the description of the
prosecutor and the defendant in the second count, on which the
defendant was convicted, it was held that that count could be
supported by reference to the first count, upon which the defendant
was acquitted, the court observing that in the most approved books
of forms, ancient and modern, it is found almost invariably when an
indictment contains more than one count, that all the counts after
the first omit the description of the defendant, which is contained
and is necessary in the first, and describe him only as "the said
A. B." In
Phillips v. Fielding, 2 H.Bl. 123, 131, Gould,
J., recalled the case of an indictment for forgery in which there
were three counts for forgery and three for the utterance. In the
first count, the prisoner was particularly described, and, the
grand jury having rejected the first three counts, an objection was
raised that the remaining counts described him, "the said A. B.,"
by reference to the first. But all the judges, he said, held the
description to be good. So, in 1 Chitty's Cr.Law 250:
"Though every count should appear, upon the face of it, to
charge the defendant with a distinct offense, yet one
Page 153 U. S. 317
count may refer to matter in any other count so as to avoid
unnecessary repetitions, as, for instance, to describe the
defendant as 'the said,' etc.,"
and, "though the first count should be defective, or be rejected
by the grand jury, this circumstance will not vitiate the residue."
See also 2 Gabbett's Cr.Law 248;
Reg. v. Huntley,
8 Cox's Crim.Cas. 260;
Queen v. Waverton, 17 Q.B. 562.
While repetition may be avoided by referring from one count to
another, and therefore, within the principles of the adjudged
cases, a subsequent count of an indictment may be sustained even if
it refers to allegations in a previous count or counts which have
been adjudged to be insufficient, the reference should be
sufficiently full, in effect, "to incorporate the matter going
before with that in the court in which it is made." 1 Bishop Cr.Pr.
§ 431; Wharton's Cr.Pl. & Pr. § 299.
As judgment was pronounced on both the first and third counts,
as the term of imprisonment under the judgment on the third count
was to commence from the expiration of the judgment on the first
count, and as no judgment should have been pronounced upon the
first count, the contention of the plaintiff is that the cause must
be remanded, with directions for a new trial.
In
Kite v. Commonwealth, 11 Met. (Mass.) 581, 585, it
appeared that the accused was sentenced for a named period to
confinement at hard labor, to take effect from and after the
expiration of three previous sentences specified. The judgment was
objected to as erroneous and void because there were not three
former sentences, legal and valid, and therefore no fixed time from
which the punishment on the last sentence should begin. Chief
Justice Shaw, referring to this objection and delivering the
unanimous judgment of the court, said that it was not error in a
judgment in a criminal case to make one term of imprisonment
commence when another terminates. "It is as certain," he said,
"as the nature of the case will admit, and there is no other
mode in which a party may be sentenced on several convictions.
Though uncertain at the time, depending upon a possible contingency
that the
Page 153 U. S. 318
imprisonment on the former sentence will be remitted or
shortened, it will be made certain by the court. If the previous
sentence is shortened by a reversal of the judgment or a pardon, it
then expires, and then, by its terms, the sentence in question
takes effect as if the previous one had expired by lapse of time.
Nor will it make any difference that the previous judgment is
reversed for error. It is voidable only, not void, and until
reversed by a judgment, it is to be deemed of full force and
effect, and, though erroneous and subsequently reversed on error,
it is quite sufficient to fix the term at which another sentence
shall take effect."
See also Dolan's Case, 101 Mass. 219, 223.
In these views we concur. A reversal of the judgments on both
the first and third counts in this case could only result in
another trial upon the third count, the first count being
insufficient. But as there has been a trial upon the third count,
the sentence in respect to that count should stand, and the term of
imprisonment under it be held to commence from the 28th day of
November, 1893, the date fixed by the judgment below for
imprisonment to begin under the sentence on the first count.
The judgment upon the first count must be reversed, and the
cause remanded with directions to arrest judgment upon that count.
The judgment below, so far as it relates to the third count, is
affirmed.