Commonwealth v. McGurty

C. Allen, J. 1. It was impossible to produce the ballot at the trial, because it had been destroyed by the city clerk, as required by the St. of 1884, c. 299, § 26. It is now objected, that such destruction must be deemed to have been the act of the prosecutor, namely, the government, and that therefore the government could not properly be allowed to introduce secondary evidence of what the ballot was. But a destruction of ballots, under this general provision of law, cannot be deemed a wrongful or negligent destruction of a document, or one which involves any fault upon the part of the government or its agents; and the case does not fall within the doctrine, which has sometimes been declared or implied, that a document which has been destroyed through the fault of the prosecutor cannot be proved by secondary evidence. See 3 Greenl. Ev. § 107; Commonwealth v. Snell, 3 Mass. 82; Joannes v. Bennett, 5 Allen, 169. [260] 2. It was not necessary to show that the ballot had been can-celled by a mechanical device, as provided in § 10 of the statute. Such cancellation is not essential to insure the counting of a ballot, since § 12 makes provision for the case where a ballot-box containing such mechanical device cannot be furnished. Besides, the evidence showing that the ballot came from the ballot-box which was actually used in the election would warrant the inference that it had been duly cast within the meaning of § 43. 3. The alteration was sufficient to sustain the indictment. If the ballot had been originally cast, with the erasure shown, it. could not properly have been counted as a ballot for Mr. Wake-field. The erasure was sufficient to “ alter ” the ballot, so that the voter’s intention would have been defeated if the fraud had not been observed or discovered. The name upon the ballot is to be taken as a whole. If the lines and marks drawn across it were sufficient to show an apparent intention upon the part of the voter to erase the name, so that the ballot would not be counted as a vote for Mr. Wakefield, that is sufficient to support the charge of altering the ballot by drawing lines and marks across the words and name “ Nelson S. Wakefield.” 4. The objection that the vote for Mr. Wakefield was not a “ ballot cast for any officer,” because he was merely a candidate for office, and was not elected, cannot prevail. The statute merely uses a short form of expression, and the meaning is not open to doubt; otherwise the statute would only apply to existing officers who might be candidates for re-election. The phraseology of “ voting for any officers to be then chosen ” is common and familiar in the legislation of this Commonwealth. Pub. Sts. c. 7, § 55. . Gen. Sts. c. 7, § 28. See also St. 1884, c. 299, § 41. 5. The fact that the fraud of the defendant did not succeed, and that, by direction of the election officer, the ballot was counted and returned for Mr. Wakefield, cannot avail the defendant in defence to the indictment. The ballot was altered with intent to cheat and defraud, although the fraud was discovered at once. Exceptions overruled.