The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-06-23
LEES 0FFENSE TR|ABLE,
The Supreme Court Decides
Against Him and
Houston.
INTERPRETED IN THE CANVASS
They We're Amenable for Acting as
Election Officers Without
Being Sworn.

cision of Judge Bahrs in sustaining the
demurrer to the indictments against
George f. Lee and Albert Houston. and in
so doing has decided that the charge
brought against the two men is based on a
trlable offense. The men were accused of
wulfully and feloniously interfering with
an election by acting-Lee as clerk and
Houston as an inspector-without being
sworn into office and without being APP
pointed. Judge Bahrs sustained demur-
rer to the Indictment, which alleged that
the offense charged was no legal offense,
and therefore that the indictments were
insufficient. He recommended in his de-
cision that the case be submitted to another
Grand Jury.
In the Supreme Court the respondent,
Lee, moved to dismiss the appeal on the
ground that the matter having been
ordered submitted to another Grand Jury,
the right of the people to appeal was
thereby cut off. The court considered this
matter first and denied the notion hold
ing that the right of the people to appeal
cannot be lost bv an order of the court,
made of its own voIition, directing sub
mission of the case to new Grand Jury,
tor the right OF the people to appeal Is
dlitCcQ US Vic COuS, ana III Is dH lUl-
portant right. The District Attorney, the
court holds, has the right to stand upon
the sufficiency of an indictment, and to
have the matter decided in the appellate
court, otherwise it would be compelled to
come into court again with the same form
OF indictment, which would again be over
thrown, and in consequence the defendant
would never be tried, and the people, with
the right of appeal secured to them, would
never be able to have the Supreme Court
pass upon pleading believed by them to
be sufficient.
The opinion then deals with the main
question. The Indictment charged that
George Lee willfully, unlawfully and feloni-
ously lnterfered with the regular election
officers by willfully and unlawfully acting
as clerk in tallying the votes cast, he at
the time not being an officer of the election
board, either appointed or qualified, and
that by his action he prevented fair can
vass of the votes. The defendant de-
| INJURED 70 this charge, on the ground that
what was stated did not constitute public
offense.
The specific act charged, the court noted,
was one not specifically described as for
hidden in the statutes, so that if it be a
crime at all it becomes so because it is an
act which in some way interferes with the
officers so as to prevent such election or
| canvass from being fairly had and lawfully
conducted"
The mere fact that the actual act is not
prohibited, the court holds, does not rem
der its commission less a crime than if it
belonged to class made penal by the
statute. 1t is too much to expect that the
statutes shall contain each possible in
fringement of the law, and the Legislature
has not attempted to do SO. 1t would be
impossible to enumerate the ways and
means which the ingenuity of man
might devise to defeat the orderly or law
full conduct of an election. The Legisla-
ture has, without undertaking the task,
seen tit to make offenses of them all. 1t is
merely for the court to say whether or not
the act charged comes within the class.
! In conclusion the opinion states: "Of
/ the sufficiency of the act complained of in
the case at bar we entertain no doubt.
| The law guarantees not only the orderly
but the legal conduct of elections. An cleo
ton legally conducted is carried on by
| officers duly appointed and under oath for
| the proper performance of their duties.
/ One who willfully and feloniously usurps
the functions of an elective officer, whether
| he does SO by force or guile, is in either
case interfering with the legal conduct of
that election, and is amenable to the law
| for his conduct"
The case of Albert Houston, one exactly
| similar in every sense, except that where
Lee was charged with unlawiully acting as
clerk, Houston is accused of unlawfully
acting as inspector was decided in SINH
lar manner and for the same reasons as set
| forth in the Lee case.