Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1885-11-25
The Demurrer Overruled.

United States VS.. Jackson; United States VS..
Mosby.
ing section of the Revised Statutes of the United
which any representative or delegate in Congress
is voted for, whether such officer Of election be
appointed or created by or under any law or au-
thoIity of the United States, or by or under any
State. Territorial, district or municipal law or
authority. who ~neglects or refuses to perform
him by any law Of the United States, or OF any
State or Territory thereof; or who violates any
acts thereby unauthorized with intent to al,
feet any such election, or the result thereof; or
the result of such election in regard to suck
re sentative or delegate; or rep
conesals or destroys a. certificate of I reeord 50
such .aw respecting the election Of any
I or refuses to make and return such certificate as
requ. red by law; or who aids, counsels, procures
or ADVISES any voter, person or officer to do any
aerime, or t, omit to do any duty the omission of
which is by this CT any of such ~sections made a
prescribed in section 55l0-lI.
Han mond, Judge-The demurrer challenge, the
l.. While the State statute may impose e duty
on the defendant as averred in ths Indictment,
ton of the statute, and, therefore, it is not sbch
a duty, under the law, as Congress contemplated
BY the enactment Of section 55l5 OF the Revised
2. The specific statutory Intent to affect the
| election or the result thereof is not charged by
the indictment. Revised Statutes, section 5515.
" requires only a very eursory reading of the
statute to show that the first ground of demurrer
is not at all well taken. 1t is the plain purpose
of this statute to declare as an oftense against the
United states, propriore .ieore, the neglect, re-
| officer holding an election for representative in
Congress, by any law, tate or Federal. 1t is not
necessary. as counsel argue. that the State law
imposing the duty shall attach a penalty for its
violation in order to make it an offense under
this sta ute. Ths only object for which we look
4 IN tho Sfafn laU 10 . n GDI IL. ~ a.
%offeer's duty. as one charged with the faoctiona
of holding. the election. Once given a duty to
R Isrnsnee N Is ' ana Obligation FbiisaTd; and imp ;o:s piSF y
this Federal statute. Its non-perform-
posed. 1t is, wholly imma .erial how the State
laws may look upon or treat a violation, of his
duty, i2r when the duty is assumed by him he
consequences here by this statute itself imposed
lie cannot escape by saying that the State does
not. punish the given conduct IS an. offense
and dignity Of the Gnitod States that he sD ]Tid Gs =
by every failure to discharge his duty as an officer
itself with other elections nor with the violation
OF the state laws as such in any election, but
this act of CONGRESS- steps in to protect the people
of the whole United States against the
sS yll pue sesiIs tS S6 fraudulent TSo lent elections
ton for every violation of dutv in
the performance Of their funcaoplor 10 but It
mother way, Cons1ess SEEKS by this statute to
guard the eiectiS1 of members of Congress
against-ny possible unfairness by compeii ing,
i under its pains and penalties, every one con.
4 cerned in holding the election to a strict and
serupulous observance of every duty. deyolved
npon him while SO engaged. This being the ob-
officer of election shall discha' &c his duties in a
manner to accomplish that object. If he does not
he becomes an offender against the laws of the
United States whether he IS az offender agaI st
the laws of the State or not, This is toe plain for
any further srgument, and that ground of de
The .other objection is of more Importance.
Section lG25 of the Revised Statutes Of the United
for any defect or inperfection in matter of
form only, which shall not tsnd to the prejudice
OF the defendant" But it has been properly
held that where a statute requires that an act
shall be ACCOMPANIED by 8. particular intent TO
make 1t an ohspse. the omission to charge that
US: We. Jackson, 2 Fed. Rep, 50Z-0i.
1t is a familiar principal that no act done or
omitted to be done can be an otense without a
wrongful intent, but the application of it to that
class of ofenses arising cut of the prohibitions by
the law of conduct, not in itself of an evil nature,
is often misunderstood and confusing. 4 have
subject, either in its relation to moral philosophy
or the somewhat narrower requirements of the
criminal law, unless the moral philosophy takes
into e?n;ideIstiop the governmental power to
prohibit that which may be otherwise either in
nocent or good. 1t is sufficient to sly that the
Legislature may, and often does1isomeiimes
Of %'stAt ling which ought to be Sone 1Oi OF
out OF which no harm could arise.
&! anu jet, the uOluB OF tuiJ lnluB dlloT
the prohibition would be a crime, no matter
what The intent. The evil intent consists in dis
pOSSsef fo Judge SGG en and da does a adfs hss that the doing RiI sG Of
the thing is not for the public good, and whether
its judgment be wise or unwiss, it is always bind
ms on the citizen, and the doing OF it is a crime.
This is particularly so with reference to the class
Of statutes imposing duties on public officials in
rand of the legislative will must be obeyed, aad
disoeedienee is crime and may be punished ss
such.
Now, it is only where the Legislature accom-
panies its prohibition Of particular conduct with
vito a specified intent, that that intent need be
either specifically averred by the indictment or
specifically proved on the trial. In other cases
cSsr seSn By an ia aTsrm lpast Of the dol Of the act
and is proved by evidences showing that the act
was done. II consists in a violation of the stat
ute, and proves itself when the violation is
shown. This is a sufficient statement of the gen
eral principles fer the purlose we have in hand
cedure contains the assertion of them. They
TTe {: S. 'R Ts crui k our y 29fli EH.' Is., 54 Z
U. S. We. Fox, IS u. s go; 7. s. rs; jack
81; United. ststes vs.. Thomson, II Fed; Rep.
245; United States vs.: Houshton, IA Fed. Rep.
tonds to do what he is consc GUS the law, which
every one is presumed to know, iorblds' the5e
need e dr. rot be any otter s eRnt intent ut m. shove Vases r and,
geuce or Indifference to duty or conseqgenees is
fquivslert to a criminal intent;" ] Bish: Or;
Il a Nblu tuaV q -O ~ scq.s lhs "a ON 1NI =
Bish. Or. Pro-, q 524 ct seq.
Turning now to this indictment and the statute
under which it charges the offense, We may say
without special refetence to the %niceties Of the
several counts that it charges that the defend,
Congress at a certain precinct, neglected to per
form, refused to perf ,pd and viola cd i fhs au tS o.
s ne Judges Sy to KEEP esFm ihe ns saii? It to "i b ! TAKEN axe !
out of their presence secQndly norf tina,
they snGy vid nsgsee sndtbs and Sotv I ef tss ;u tG p to- !
the box after the close of the election and count
the vote, by permitting it to be carried away
another duty of the judges to keep. the ballot;
safely, by permitting ST. of them to be taken Out
of the box before being numbered and C united
This is the substance of the indictment. The
charge that these acts alleged were done "witt
the intent to affect the election or the result
The contention of derendants is correct that nc
matter how much it may appear, by the nature Of
the acts charged, that the election would by then
be affected, if the statute only Furnishes an aet
that intention must be averred in The indict.
ment. But in ~dstermining whether this be
to observe that where the given act com
planned of is in itself of that character which
would affect the election, per sc, or .s eyer I
might affect the election, the Legislature might
and in its wisdom pt2oa6ly would prohlbit TN
Turks about it, without reference to any specis
intention at the time to affect the result of thu
election iniuriously. 1t would be the very place
to prohibit carelessness or Indifference that nigh
affect an election injuriously, a, well as a guilt!
and corrupt intention to do so by the act. AbsO
Lutte prohibition of the dac gercus act. no matte
with what intention, would be the logic of thu
situation and the surest way t? secure the object o
the Legislature, namely, a fair election. l havi
not the least doubt such was the object of thi
statute. 1t proceeds upon the idea tina
upon the officers Of an election is ,neces
sary to secure a fair election and tha
knowingly, is criminal, and shall be declared an,
punished as such by this statute. To illustrate
When the code of Tennessee requires tie judge
of an election to take an oath that they ''will 70
suffer the ballot-boX to be out of the presence o
sight. of at least two Of your number until ever
vote is counted out, IL means absolutely TO pro
hibit The Judges from allowing the box to DO on
oftheir presence-that if one must 60. Two shall
Isl: + F. ss ga Code ie S sa' TRes intent IT. with w &SGf
the box is allowed to be out of their presence i
particular violation of this es abii,hed rule 0
duty be with a corrupt intent to affect the e;ec
to be out of the presence of the judges IS suficien
to support the prohibition. Here the statute o
Tennessee imposes a duty; and Co1sresss hs
statute, and any other intent is beside the statute
The other acts avsrred are in themselves Of, $
fatal and dangerous a character hat their prohl
bition without any specific intent is, so far as tn
object of the legislation is conccrned, apparent
proper construction Of the statute is apparen
| from its words, its punctuation and grammatlcs
structure. but more than all, f 10 hi ITS ob NANTES les
law-makers had in view of securing a fair elee
ton through the strict enforcement of every dut
imposed upon the election officers.
There is a class OF offenses denounced by th
statute which require the specific intent urged b
this demurrer, but they are, as any critic i exami
ma ion will disclose, acts of COMM sion and nc
omission. Not all the acts nt com mission DE
nounced require the specific intent, and not on
of omission denouu ced requires it. But a dis
| tinet class not embraced 10 those denounced with
out special intent do require that intent, and TO
the plaineSt Of rea, ons that without it there coul
be no offense described at all. The enforcement
of every duty by Furnishing acts of omission an
commission in violation of that duty is enc thin
that is done by this statute, wholly on the theot