Supreme Court. Monroe General Term.

December, 1865.

*Johnson, Welles*and *E. Darwin Smith,*Justices.

#### The People *v.*Salem Standish.

It is necessary to the validity of an indictment, under the statute, for illegal voting at a general or special town or charter election, that it should contain an allegation of the facts which render the act of voting criminal.

Where the indictment contained only the general allegations that the defendant was not a qualified voter at the time he gave his vote, and the defendant was convicted on evidence that he had, prior'to the election, made a het on the election, the conviction was reversed.

The defendant was indicted for illegal voting at the general election in November, 1864. The indictment charged: “That Salem Standish, late of the town of South Bristol, in the county of Ontario and State of New York, on the 8th day of November, A. D., 1864, at South Bristol aforesaid, at a general election held at the house of Joel Sutton in said town for the election, among other officers of electors of President and Vice-President of the United States, Governor and Lieutenant-Governor of the State of New York, a sheriff, clerk and judge in and for said county, then and there duly holden according to law, he, the said Salem Standish, then and there not being a qualified voter as he the said Salem Standish did then and there well know, did willfully, knowingly and corruptly give in a vote for the officers aforesaid, being officers to be chosen, against the form of the statute in such case made and provided and against the peace of the people of the State of New York and their dignity.”

The trial of the indictment came on before the Court of Sessions of Ontario county, in the month of June, 1865. After the jury were empannelled for the trial, the district attorney opened the case on the part of the People, and stated to the said court and jury, that he intended to prove *104and establish under said indictment that the said defendant had voted at the last general election held in Ontario county, in the State of New York, in November, 1864, and that the defendant was not a legal voter at said election for the reason that he had, prior to said election being held, made a bet upon the result of said election:

And thereupon the counsel for the defendant moved the court to quash the said indictment upon the ground,

1st. That said indictment did not set forth any offense upon which the defendant could be tried.

2d. That inasmuch as the statute sets forth different offenses, the particular offense with which the defendant is charged must be set forth in the indictment.

The court denied the motion and the defendant, by his counsel excepted to the decision. The defendant’s counsel then objected to any evidence being given that the defendant had made a bet upon the election upon the ground that so such offense was- set forth or charged in the indictment. The court overruled the objection and the defendant’s counsel excepted to the decision.

The trial then proceeded, when evidence was given on the part of the People tending to show that the defendant, on the day previous to the general election held on the 8th day of November, 1864, had made a bet on the result of that election and that at the election he voted for persons to be elected at such election. In the course of the trial a number of exceptions were taken by the defendant’s counsel to rulings and decisions of the court. The jury by their verdict found the defendant guilty of the crime charged in the indictment.

*H. C.*Cheesebro, for the defendant.

*Edwin Hicks*(District Attorney), for the people.

*By the Court.*Welles J.

By § 15 of chapter 240 of the Laws of 1847 *(Sess. L. of that year, p.*266), it is pro*105vided that, *“ No*persons shall be permitted to vote at any election who, previous thereto, sháll have been convicted of bribery or any infamous crime, unless he shall have been pardoned and restored to all the rights of a citizen; or who shall make any bet or wager, or be directly or indirectly interested in any bet or wager depending on the result of any election at which such person may offer to vote.”

It is also provided by statute that “ Any person not duly qualified to vote under the laws of this State, who shall knowingly vote or offer to vote at any general or special, town or charter election in this State, shall be adjudged guilty of a misdemeanor, and on conviction shall be imprisoned for a period not exceeding six months, at the discretion of the court before which the offense is tried,” &c., &c. (1 *N. Y. St. at*Large, 147, § 13; 1 *R. S., 5th Ed., p.*449, § 13.)

There are various other disabilities which will disqualify a person from voting at the elections; such, for example, as those which relate to his citizenship, age, the time in Which he has been an inhabitant of the State, county and election district, &c.

The rule in regard to the forms of indictments for crime is that the offense charged must be clearly and particularly set forth and stated, so that the individual charged may understand precisely what he is to meet and answer. The simple act of voting at an election is no crime; it is other facts connected with or attending that act which constitute its criminality. Those facts which give character to. the act, and which render it criminal, should be alleged in the indictment, otherwise the great object of pleading—that of informing a party what he is' called upon to answer'—• will be defeated. The indictment in the present case does, in general terms, negative the fact of the defendant's being a qualified voter; but what he had done or omitted, or what had happened to deprive him of the franchise, is not *106stated or alluded to. *Prima fade,*every white man of the age of twenty-one years is entitled to vote, and when he offers a vote it must be received, unless some fact is shown or appears which disqualifies him; and when charged with voting without being legally qualified, the indictment should show the fact or facts which disqualify him. I am clearly of the opinion that the indictment was fatally defective in omitting to set forth the fact which disqualified the defendant from voting. The conviction should therefore be reversed; and as there can never be a legal conviction upon this indictment, there is no occasion for directing the proceedings remitted.

Conviction reversed.