Babbitt v. State

Beaed, Justice. A criminal information was filed by the County and Prosecuting Attorney of Laramie 'County, in the district court of said county,' in which information the plaintiff in error, Orren C. Babbitt, was charged as follows: (Omitting the formal parts) “that Orren C. Babbitt, late of the county aforesaid, on the 27th day of August, A. D. 1916, at the county of Laramie, in the State of Wyoming, did unlawfully and wilfully deface twenty ballots, which prior to being so defaced had been voted at the primary election held in said county and State on the 22nd day of August, A. D. 1916, contrary to the form of the statute,” etc. He entered a plea of not guilty, and upon trial the jury returned a verdict of guilty. A motion for arrest of judgment on the ground that the facts stated in the information do not constitute an offense under the laws of the State of Wyoming was duly filed, was, 'by the court, denied, and judgment imposing a fine and imprisonment entered. A motion for a new trial [31] assigning as error the denial of the motion for arrest of judgment and other grounds, not necessary to 'be here stated, was duly filed, which motion was also, by the court, denied. Plaintiff in error (defendant below) brings error. The only question .presented to this court for determination is whether or not the facts stated in the information are sufficient to constitute an offense punishable under the laws of this State. The section of the statute claimed by counsel for the State to have been violated is section 2310 of the Compiled Statutes of 1910, which reads as follows: “Any person who shall falsely make or wilfully deface or destroy any certificate of nomination or nomination paper, or any part thereof, or any letter of withdrawal, or sign any such certificate or paper contrary to the provisions of .the election laws of this State, or who shall file any certificate of nomination or nomination paper or letter of withdrawal, knowing the same or any part thereof to ibe falsely made, or who shall suppress any certificate of nomination or nomination paper, or any part thereof, which has been duly filed, or who shall forge or falsely make the official endorsement on any ballot, or who shall wilfully destroy or deface any ballot, or who shall wilfully delay the delivery of any ballots, shall be fined not exceeding one thousand dollars or be imprisoned in the county jail not more than one year, or both.” This section is found in Chapter 155, 'Comp. Stat. 1910, which chapter, together with chapters 143, 146, 147, 148, 149', 150, 151, 152, 153 and 154, as numbered in said Compiled Statutes, provide for and treat of general elections. Chapter 144 provides for special elections, and chapter 145 provided for the manner of calling and conducting conventions or primary meetings prior to the adoption of the pri-’ mary election law in 1911, and which convention or primary meeting was defined, “an organized assemblage of electors or delegates representing a political party.” (Sec. 2114, Comp. Stat.) Nothing contained in either of those chapters was or is applicable to the primary election at which the ballots alleged to have been defaced were voted. As originally enacted, the subjects embraced in the above stated chapters [32] were included in one Act, being chapter 80 of the Session Laws of 1890, entitled “An Act concerning elections and for other purposes.” The first section of which provided, “There shall be held in the several voting precincts of Wyoming on the Tuesday next after the first Monday in November, in the year eighteen hundred and ninety, and on the Tuesday next after the first Monday in November, in each second year thereafter, a general election, at which the following officers shall be elected” (specifying the officers to be elected at such election). Said chapter 80 contained' one hundred and eighty-four sections, and provided for the conducting of such general election, defining what should constitute offenses under the act, and prescribing the penalties therefor, among which were those included in section 170 of the act, which is now said section 2310, Comp. Stat. Said chapter 80, S. L. 1890, has been amended, and other provisions added thereto from time to time, but the time for holding the general election and the provisions of said section 170, remain unchanged; and it is clear that the ballot, the defacing of which was made a crime, was and is the ballot provided for and voted at such general election. It may be argued that the words “any ballot”, as used in section 2310, when taken in connection with the language, “Contrary to the provisions of the election laws of this State,” as it appears in the Compiled Statutes, is broad enough to include a ballot voted at a primary election. But the last quoted language is not the law as it was written iby the legislature. In said section 170, it is “contrary to the provisions of this act,” and specifically limits the offenses therein defined and the penalties imposed to violations of that act which treats of the general election in November only. The change in the wording of that section seems to have been made by the revisers in 1899, and 'by the compiler in 1910; but such changes so made can not affect the plain meaning and application of the law as written by the lawmakers. The election at which the ballots alleged to have been defaced were voted was not such an election as is therein defined, but was a primary election for the selection of candidates by the re [33] spective political parties as provided for 'by Chapter 23, S. E. 1911, and the amendments thereto. That act is entitled, “An Act providing for and regulating the holding of primary elections and nominations for office, and the government of political parties and organizations.” While that act provides for the holding of the primary election of the several political parties at the same time and by one set of officers, it is a separate election of such parties. Separate ballots for each party are required and are to be printed on different colored paper, and no one affiliated with one party is permitted to vote the ballot of any other party. It provides for the time of holding and the manner of conducting such primary election, but does not declare or provide that the penalties imposed for violations of the general election law shall apply to like violations of the primary-law; but, on the contrary, it specifically, in sections 51 and 52 of the act, defines what acts by public officers or any other person shall constitute a violation of its provisions, and prescribes the punishment therefor; and it is significant that the defacing of a ballot is not one of the numerous acts therein prohibited, or for the doing of which a penalty is imposed. The legislature having specifically defined what should constitute a violation of that law and having prescribed the penalty therefor, excludes the idea that it intended to include other acts not mentioned. However necessary or desirable such a provision might be, it is for the legislature and not the courts to determine. We are, therefore, of the opinion that section 2310, Comp. Stat. 1910, has no application to the primary election described in the information. Our conclusion finds more or less support in the following cases: George v. State, 18 Ga. App. 753, 90 S. E. 493; Mark v. State, id.; State v. Simmons, 117 Ark. 159, 174 S. W. 238; State v. Hass et al., 142 La. 271, 76 So. 710; People v. Foster, et al., 60 Misc. Rep. 3, 112 N. Y. Supp. 706; State v. Woodruff, 68 N. J. R., 89, 52 Atl. 294; Commonwealth v. Helm, 9 Ky. 532; Hodge v. Bryan, 149 Ky. 110, 148 S. W. 21; Dooley v. Jackson, 104 Mo. App. 21, 78 S. W. 330; State v. Chichester, 31 Neb. [34] 325, 11 L. R. A. 104; Commonwealth v. Wells, 110 Pa. St. 463, 1 Atl. 31. . It is contended that if said section 2310 applies to primary elections the information is fatally defective for want of material averments. It does not allege that the primary election at which the ballots charged to have been defaced were voted was an election authorized by law, and no facts are stated so showing. “It is a general rule that the want of a direct, positive and material allegation, in the description of the substance, nature or manner of the offense cannot be supplied by any intendment, argument or implication.” (Joyce on Indictments, Sec. 246 et seq., and authorities cited in the notes.) In charging'an offense against the election laws, it is necessary either to state the facts showing that the election was one authorized by law 'by stating the names of the officers holding the election, the persons voted for and the offices to 'be filled at such election, or to allege that such election was authorized by law. Section 6173, Comp. Stat. 1910, providing, “When any offense shall be committed in relation to any election, an indictment for such offense shall be deemed sufficient if it alleges that such election was authorized by law, without stating the names of the officers holding the election, or the persons voted for, or the offices to be filled at such election.” That implies that if those facts are not alleged the indictment will be insufficient unless the substituted averment specified in the statute is used. The information in this case is also lacking in direct and positive allegations in other respects; but as we have already held that the section of the statute under which it was drawn is not applicable to such an election as is attempted to 'be described in the information, it is not necessary to pursue that question further. For the reason stated, the judgment of the district court is reversed and the cause will 'be remanded with direction to vacate the judgment; and, as no crime punishable under the statute is charged, to discharge the defendant. Reversed and remanded with directions. Potter, C. J., and BlydEnburgh, J., concur.