Opinion
June Term, 1859.
This Court cannot notice a bill of exceptions made by the counsel on one side of the question, without the sanction of the Judge who presided at the trial.
Where a person voluntarily gave an unlawful vote, it was Held that the unlawful purpose prima facie attached to the act, and that the opinions of others who believed the vote lawful, did not amount to a justification or excuse.
Held further, that the opinions of the judges of the election to that effect, not sought by the voter, nor delivered formally, on a full statement of the facts, and not influencing his mind, could not take away the criminality of the act.
INDICTMENT for illegal voting, tried before DICK, J., at last Superior Court of Pitt.
Attorney General, for the State.
McRae, for the defendant.
It was admitted that the defendant lived in the county of Greene and voted in the election of Governor in August last in Pitt. The defendant introduced one Wiggins, who testified that he was one of the inspectors of the election at the precinct in question; that the defendant presented his vote in the usual manner at the window, and it was received and deposited in the box with the other votes for governor; that he asked no questions of the inspectors as to his right to vote, nor did the inspectors ask him any questions; that he himself was acquainted with the defendant, and knew that he lived in Greene, but he was of opinion that he had a right to vote in this election in Pitt county; that he expressed that opinion to other inspectors, who concurred with him, but he did not know that the defendant heard this expression of opinion, and did not think he did.
The counsel for the defendant, asked his Honor to charge the jury, that if they believed the fact of the defendant's residence in another county was well known to the inspectors, and the defendant was well aware of this knowledge, and that the inspectors discussed the question, though not in his presence, and decided his right to vote, this would rebut the presumption of fraud, although the defendant did not state the facts to the inspectors and ask their counsel. The Court declined giving such instructions, and the defendant excepted.
Verdict for the State. Judgment and appeal by the defendant.
Besides the bill of exceptions, signed by the Judge who presided at the trial, there is, appended to the transcript, a paper, purporting to be exceptions, signed by the counsel for the defendant, and therein alleged to have been taken by them on the trial. The Court can take no notice of them on this proceeding, because they have not the sanction of the Judge; which, alone, can certify to this Court the proceedings on the trial, including the evidence given, the instructions prayed for, and those refused, or given. It would lead to endless contradiction and confusion if the parties, or counsel could, independently of the Judge, frame cases to suit themselves. Hence, the statute provides that exceptions shall constitute part of the record, and requires them to be signed by the Judge. In this case, the point, happens, however, not to be material, as the points appearing by the statement of the counsel to have been raised by them, are substantially the same as those to which his Honor affixed his hand.
It is clear that the defendant was not entitled to vote for Governor in the county of Greene, as he resided in Pitt. For, by the amended Constitution, Article 2, ch. 1, the Governor is to be chosen at the times and places for the election of members of the General Assembly, and by the persons "qualified to vote for the members of the House of Commons," and by the 8th section of the Constitution, one is entitled to vote for members of the House of Commons only for the county in which he resides at the day of election.
Upon the points of evidence and the instructions given to the jury, the case is substantially the same as Boyett's case, 10 Ire. Rep. 336, and must be governed by it. The defendant voluntarily gave an illegal vote, and, necessarily, the unlawful purpose attaches prima facie to the act. It is neither a justification, nor excuse for such an act, that other persons advised the party that it was lawful, and much less, that other persons thought and believed it to be lawful. Here, the judges of the election, it seems, were under the erroneous impression that the defendant had a right to vote for Governor, notwithstanding his residence in another county. It is going far enough to say, that, if the point had been made before the judges, and a full statement of facts laid before them, their formal decision in his favor would protect the defendant, as the determination of a tribunal, constituted by the law, to give a judgment on that question. But it is impossible to attribute to the opinion of the persons, who happened to be the judges, an influence on the mind of the defendant, which would take away the criminality of an unlawful act, when that opinion was not only not officially declared, but was in no way communicated to the defendant. He acted on his own mistaken, or wilfully erroneous judgment, and must abide the consequences. Such a rule is an indispensable guard to the purity of the ballot box, upon which the value and stability of our political institutions chiefly depend.
There is no error in the record.
PER CURIAM, Judgment affirmed.