Opinion
December Term, 1849.
When a man is indicted, under the statute, for "knowingly and fraudulently voting at an election," when he is not qualified to vote, he cannot justify himself by showing that he was advised by a very respectable gentleman that he had a right to vote; for the maxim, that "ignorance of the law excuses no man," applies as strongly to this case as to any other.
APPEAL from the Superior Court of Law of JOHNSTON, at Fall Term, 1849, Battle, J., presiding.
The defendant was indicated for voting, knowingly and fraudulently, at a constable's election held for one of the captain's districts in the county of Johnston, in January, 1849. On the trial it was proved that the defendant voted for constable in the district mentioned in the indictment, having been a resident in the said district for less than six months immediately preceding the said election. It was also proved that he did not mention the fact of his nonresidence for six months to (337) the inspectors of the polls of the said election, and that they did not know of such want of the requisite time of residence. The defendant offered to prove that, before he gave his vote, he took the advice of a highly respectable and intelligent gentleman as to his right to vote; that the said gentleman advised that he had a right so to vote, and that he voted in consequence of such advice. The gentleman consulted was admitted not to be a gentleman of the bar.
The counsel for the defendant insisted that the testimony was competent to show that he had not voted fraudulently, but in good faith.
The court held that the testimony was inadmissible, and that it would have been so even if the gentleman whose advice was taken by the defendant had been a member of the bar; that the defendant was bound to know the Constitution and laws of his country, and that ignorance of them in him and his advisers would not excuse, though it might be proper to be heard by the court, after conviction, in mitigation of the punishment. The court expressed the further opinion that if the defendant had voted in ignorance of a matter of fact, or had stated truly and fairly the facts of the case to the inspectors, and they had decided in favor of his voting, then he could not be deemed guilty.
The defendant was convicted, fined sixpence and costs, and appealed.
Attorney-General for the State.
H. W. Miller, with whom was J. H. Bryan, for defendant.
"Ignorantia legis neminem excusat." (343) Every one competent to act for himself is presumed to know the law. No one is allowed to excuse himself by pleading ignorance. Courts are compelled to act upon this rule, as well in criminal as civil matters. It lies at the foundation of the administration of justice. And there is no telling to what extent, if admissible, the plea of ignorance would be carried, or the degree of embarrassment that would be introduced into every trial, by conflicting evidence upon the question of ignorance.
In civil matters, it is admitted, the presumption is frequently not in accordance with the truth. The sales of property are complicated systems — the result, "not of the reason of any one man, but of many men put together," hence, they are not often understood, and more frequently not properly applied, and the presumption can only be justified upon the ground of necessity.
But in criminal matters the presumption most usually accords with the truth. As to such as are mala in se, every one has an innate sense of right and wrong which enables him to know when he violates the law, and it is of no consequence if he be not able to give the name by which the offense is known in the law books, or to point out the nice distinctions between the different grades of offense. As to such as are "mala prohibita," (344) they depend upon statutes printed and published and put within the reach of every one; so that no one has a right to complain if a presumption, necessary to the administration of the law, is applied to him. To allow ignorance as an excuse would be to offer a reward to the ignorant.
The defendant voted, when he was not entitled by law to vote. He is presumed to know the law. Hence, he voted knowing that he had no right, and, acting with this knowledge, he necessarily committed a fraud upon the public — in the words of the act, he knowingly and fraudulently voted when he was not entitled to vote. It being proved on the part of the State that he voted, not having resided within the bounds of the company for six months next preceding the election, a case was made out against him.
He offered to prove, for the purpose of rebutting the inference of fraud, that he had stated the facts to a respectable gentleman, who advised him he had a right to vote. His Honor held the testimony inadmissible. We concur in that opinion. The evidence had no tendency to rebut the inference of fraud, for the inference was made from his presumed knowledge of the law, and that presumption could not be met by any such proof, without introducing all the evils which the rule was intended to avoid. The question, in effect, was, Shall a man be allowed, in excuse of a violation of the law, to prove that he was ignorant of the very law under which he professed to act, and under which he claimed the privilege of voting? If he was not ignorant of the law — and that he cannot be heard to allege — then he voted knowingly, and, by necessary inference, fraudulently.
An indictment for extortion charges that the defendant received the fee "unlawfully, corruptly, deceitfully and extorsively." This averment the State must prove. It is done by showing that the defendant received what the law does not allow him to take; for the presumption is, "he knew the law upon the subject of fees to be taken by himself," and (345) the inference from such knowledge is that he acted "corruptly and deceitfully" (words quite as strong as knowingly and fraudulently), unless it is shown that he did so by some inadvertence, or mistake in calculation. He cannot excuse himself for taking more than the legal fee, by saying that he was misled by the advice of an attorney. If such or the like excuses were admitted it would hardly ever be possible to convict. He might always contrive to ground his conduct upon misapprehension or improper advice. S. v. Dickens, 2 N.C. 406.
It would be a different question if the defendant had stated the facts to the judges of the election, and they had decided in favor of his right to vote, for their decision would rebut the presumption of knowledge on his part, in a manner contemplated by law.
The case was ably argued for the defendant. It was insisted that it was necessary for the State to aver and prove that the defendant voted knowingly and fraudulently. That position is admitted. The reply is, the averment was made and proved; for, proof being made that he voted when he was not entitled to vote, the presumption is that he knew the law, and fraud is the necessary inference, as corruption and deceit were in the case above cited. It cannot be contended that, to fix him with knowledge, the State must show that some one read and explained the law to him; or, to fix him with fraud, that it must be proven he had been bribed. If so, the statute is a dead letter.
Our attention was called to the fact that the act of 1844, making the offense indictable, uses the words, "knowingly and fraudulently," which words are not used in the act of 1777, imposing a penalty.
To incur the penalty under the act of 1777, the voting must be unlawful, and it must be done knowingly and fraudulently in the sense above explained. If one, (346) having a deed for fifty acres of land, votes in the Senate, and it turns out that the deed only contains forty-nine acres, the penalty is not incurred, unless he knew the fact at the time he voted. So, if one votes for a constable, and it turns out that the dividing line includes him in another company, the penalty is not incurred, unless he knew the fact or believed that the true line put him in the other company. There is not in either case that criminal intent which is a necessary ingredient of the offense, whether it be punished by a penalty or by indictment. The act of 1844 expresses in so many words what the law would have implied. It is a strained inference that, by so doing, the Legislature intended to make the case of illegal voting an "exception, " and to take it out of the rule "ignorantia legis," a rule which has always been acted upon in our law, and in the laws of every nation of which we have any knowledge, and without which, in fact, the law cannot be administered. The inference sought to be made results in this — the Legislature did not intend the act of 1844 to be carried into effect; it was intended to be "brutum fulmen." No reason has been suggested for making an exception in this case. The only additional qualification to that of a voter for a member of the House of Commons is a residence of six months in the captain's company. This is not complicated or difficult to be understood. Why make the exception and offer a reward for ignorance in this particular case? Such a construction cannot be admitted, unless the lawmakers had declared their intention by positive enactment.
PER CURIAM. There is no error in the court below, and the same must be so certified.
Cited: S. v. McIntyre, 46 N.C. 5; S. v. Hart, 51 N.C. 391; Green v. Griffin, 95 N.C. 56; S. v. Pearson, 97 N.C. 437; S. v. McBrayer, 98 N.C. 623; S. v. Williams, 106 N.C. 649; S. v. Kittelle, 110 N.C. 567; S. v. Downs, 116 N.C. 1066; S. v. McLean, 121 N.C. 600; S. v. R. R., 122 N.C. 1062; S. v. Simmons, 143 N.C. 616.
(347)