State v. Lockbaum

Butler, C. J. This motion in arrest is insufficient, and must be overruled. The offence charged in the information was created by statute, and is well described therein. It is also alleged in the language of the statute. It is a well settled rule of the common law that such an offence thus alleged is sufficiently described in an indictment or information. To this rule there may be exceptions, owing to the imperfect manner in which such offences are sometimes described in the statutes, and the consequent necessity of further averments to insure a fair trial, an intelligible judgment, and a record which shall be available to protect the prisoner from further prosecution for the same offence. But while the law thus, by permitting exceptions to the rule, is careful to protect the rights of the accused, it is, or should be, equally careful to prevent a failure of justice. To this end it was enacted in England by 6 Geo. IV., section 21, that indictments or informations which describe the offence in the words of the statute, should be held sufficient to warrant the punishment prescribed by the statute. Judgment therefore cannot be arrested there for the want of exceptional averments, however necessary, but the prisoner must take advantage of the defect by demurrer. That is a just statute, and should be adopted in this country. It gives protection to the prisoner by permitting him to point out by demurrer the defects which do or may operate against him, and gives the state an opportunity by amendment to correct the defects, and thus insures both a fair and conclusive trial. No such enactment has been passed in this state, or, so far as I can learn, in any state of this country, and we must gather from the decisions which liave been had here and elsewhere the precise state of the law on this subject. The decisions are very numerous, and in the main harmonious. Erom the nature of the case however, and the great 'variety of these statutes regulating the internal police of the • different states, there are no settled exceptions. Each decision rests upon its own peculiar circumstances. Certain gen- • [403] eral rules only are settled in relation to such exceptions. Judge Bronson in The People v. Taylor, 3 Denio, 95, in relation to such additional and exceptional averments, says that “ they are required to the end that the defendant may know what crime he is called upon to answer; that the jury may be able to deliver an intelligible verdict; the court render a proper judgment, and finally that the defendant may be able to plead his conviction or acquittal in bar of another prosecution for the same offence.” To these rules however there is another qualification, thus stated by Judge Storrs in Whiting Vs The State, 14 Conn., 491: “ It is for the defendant to show that his case falls within some of the exceptions.” The rule then, as the averments are sufficient for an intelligible verdict and judgment, applicable to the case is this: that inasmuch as the offence is created by statute, and is described in the information in the words of the statute, the prisoner must show that other omitted averments were necessary to insure a fair trial, or reasonable protection against further prosecution. This, in our opinion, he has failed to do. I. It was not essential to his defence, or his protection from further prosecution, that it should be averred that the electors’ meeting was legally warned and held. The meeting was the annual electors’ meeting, prescribed by the constitution to be holden on the first Monday of April. II. It was not essential to his defence or protection that the offence should have been charged to have been committed in a voting district of New Haven. Single electors’ meetings, organized by the appointment of officers, for the annual state election and for each town in the state, are prescribed by the constitution, and all the votes must be received, counted and declared in such meeting, when organized and opened. Voting districts are not electors’ meetings. They are places where the votes are received for convenience, to be transmitted to, and received, counted and declared in the one, indivisible electors’ meeting. If they are more than that, they are unauthorized and unconstitutional. There being but one meeting known to the constitution and laws for the town, the averment was proper and sufficient. III. It has not been made to appear, and it cannot be pre [404] sumed, that it was essential to the defence or protection of the prisoner that the name assumed, on which the prisoner attempted to vote, should have been alleged. The burden, under the rule in such cases, is on him to show that it was necessary for his defence that the name which he assumed was not at the time of trial within his knowledge. That fact he has not shown, nor attempted to show. Nor was it necessary for the purpose of identifying the offence, and for his protection against further prosecution. First, because in the nature of things there could be but one offence of the kind. The annual state electors’ meeting for each town is organized and held at a specified time and place, for a distinct and specified purpose—is a distinct and independent occasion, where certain qualified persons may do a single act. In contemplation of the law, therefore, there could be but one offence, upon one, distinct, independent occasion. A further prosecution for such an offence would not only be prima facie evidence that it was for the same offence, but conclusively so, from the nature of the case. There being but one occasion when and where the offence could be committed, and the offence being in its nature, distinct and single, to wit: a fraudulent attempt to exercise the right of suffrage by assuming the name of another person, no question of identity of offence could arise. It is indeed possible for a man to offer to vote twice, by assuming two different names in one electors’ meeting, but it does not lie in the mouth of the prisoner to say that the attorney or the court should contemplate such a contingency. But if it were not so, the condition of the prisoner would be no worse than it would have been if the information had alleged that the name assumed was unknown. In either case it would be competent for the prisoner to show, by extrinsic evidence, that the name which he was convicted for assuming was the same as that which he was again prosecuted for assuming. That is well settled. 8 Hill, 95; 17 Wendell, 386. It cannot then be said with truth that the prisoner has shown that the insertion of the particular name in the information was in fact necessary for his defence or protection. Nor can it be said of either of the other alleged defects, and a particular consideration of them is unnecessary. [405] í In this opinion Park, Carpenter, and Seymour, Js., concurred. Poster, J., expressed strong doubts, but finally concurred.