The Louisiana Democrat. [volume] (Alexandria, La.) 1845-1918, 1878-04-10

forged instrument. Waterman's Arch.
ibold Criminal Practice aud Pleadings,
S47, 26. The words of our statute are,
"alter or publish as true" and are not
misprint, for they occur first in the
act of 1878, and are repeated in the
Revised Statutes of 1856 and 1870. 1t
was hence contended by the defend
ants counsel that the Legislature had
not made the act charged to have been
done by him a crime-the charge being
"uttering and publishing as true"-
and that the crime as laid in the infor.
nation, and for which he was tried, is
not the crime created by the statute.
The statute used the word ALTER.
The information has UTTER. The
statute uses the distinctive, alter or
publish, thus 0aking two crimes. The
information has the copulative utter
and publish, thus describing one Of
tense. The prosecution is based on
section 1913 Revised Statutes, and the
word UTTER is not used in it, while it
is employed in the next section, in re-
lation to the intelt in passing paper
securities, and is used ia section S35
for creating another and distinct Of.
Tense, thus-"whoever shall utter or
tender in payment" etc. The two
words would appear to have been en-
ployed Intentionally and it was urged,
both in the oral and printed argument,
that the words cutter and publish. u
used in the information as descriptive
of the crime, do not charge the crime
either of uttering or publishing defined
by the statute. In other words, the
statute made it crime to alter tile re-
cord, and the defendant was not
charged with that. The statute also
made it crime to publish az true all
altered record, and The defendant was
not charged with that, but with utter
ing and publishing, etc. The act OF
uttering is separate and distinct from
either of the others, and unless the
phrase cutter and publish" means lie
gally the same as the single word
publish" aud designates the same act,
the offense charged in the information
has no existence. If the draushtsman
of the information had the statute be.
fore him, he must have intended the
word utter, used by him conjunctively
with publish, as expressing only wnat
the latter word expresses by itself; but
legally that is not true, as the law wri-
tiers all teach. We did not give this
objection of the defendants counsel a
place in our former opinion, because
among the twenty-seven bills of excep.
ton, and the assignment of errors ad
dniOnal thereto, the two on which We
rested our decision we're conclusive
of the invalidity of tile proceedings
That the crime should have been
charged to have been committed by
the defendant under color OF bis Office
| is to our minds necessity. No one
i but the returning officers had any pow.
: er, mission or authority to compile,
! canvass or publish the returns of cleo
lions. The compilation by any other
persons, and it's publication, could
produce no legal consequence. All
persons are presumed to know that the
publication Of the result of an election
by any others than the Returnins
Board was null and void legally, aud
hence it was legally impossible that
sucl, publication should deceive, injnre
or defraud any one, and since the
; criminal act must not only be done
with intent to det,aud, but must he le.
gally capable of etfecting the fraud, il
must be charged to have been done by
| virtue of and in the capacity of the re-.
turning officer. We are asked iu the
briet if four presidents of banks had
appropriated large sums of money t..
induce the returning officers to make
necessary alterations in the Il ures
and. after the alterations had beel
made and the result changed, they ha,
caused them to be published, woult
not they be punishable ? Unqnestion.
ably, ii we understand it to- DO assam
ed that the publication is made in the
name aud under the authority OF he
returning officers, because there, is an.
other statute that applies to those VII,
pr"cu,e to be falsely made, etc. Bn
that is within the Attorney General,
imaginary case and not ours. w.
supposed a case where it is not alleged
or charged, and therefore not to bt
pretended that the published docu.
ment bore the certificate of the return
ing officers, but only that of four banl
presidents. 1t is undeniable that suci
publication would not be criminal I'M
der our statute for the reasons We ther
gave. We stated that case to show
that it was Of the essence of the ,ffeus,
of uttering and publishing false cleo.
ton returns under the statute that til,
Publishing should be made by person.
having authority and capacity unde
the law to make it, and therefore i
was essential that the information
should contain an averment of tina
authority aud capacity, and was fatal
ly defective without it. Its omission
conld not be supplied by the COURT
1t is a matter of history that the act o
the defendant. which actually constitu
ted his crime was done in his .Officia
capacity as a member of the Returuin,
Bnard. Why was it that the canvass
ing and publishing of the vote to b,
made by him and his co.returning off
GERS became the object of public all
xiety, aud whec made became the sub
ject of public condemnation If fou
private persons had done what the.
did, and then published as election
returns whatever might have been il
conformity to their wishes, would no
the act have been treated with deiis
ion, and could it have produced an,
effect legally or otherwisei Is it 90
apparent if this defendant had no
been a member of the Returning Boar,
and had published the altered returns
being only a private person, that q
one wonld have thought of prosecuting
him 70. that actf 1t was becaus
! what he did was done in recognize
official capacity that the fame and til