Blitz v. United States

• Decision Date: 30 April 1894
• Docket Number: No. 1,102,1,102
• Parties: BLITZ v. UNITED STATES
• Court: U.S. Supreme Court

153 U.S. 308

14 S.Ct. 924

38 L.Ed. 725

BLITZ

v UNITED STATES.

No. 1,102.

April 30, 1894.

This was an indictment against Morris Blitz for violating the federal election laws. Defendant, being convicted under the first and third counts of the indictment, sued out this writ of error.

John C. Fay, for plaintiff in error.

Asst. Atty. Gen. Conrad, for the United States.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

By section 5511 of the Revised Statutes of the united States it is provided:

'If, at any election for representative or delegate in congress, any person knowingly personates and votes, or attempts to vote, in the name of any other person, whether living, dead, or fictitious; or votes more than once at the same election for any candidate for the same office; or votes at a place where he may not be lawfully entitled to vote; or votes without having a lawful right to vote; or does any unlawful act to secure an opportunity to vote for himself or any other person; or by force, threat, intimidation, bribery, reward, or offer thereof, unlawfully prevents any qualified voter of any state, or of any territory, from freely exercising the right of suffrage, or by any such means induces any voter to refuse to exercise such right, or compels, or induces, by any such means, any officer of an election in any such state or territory to receive a vote from a person not legally qualified or entitled to vote; or interferes in any manner with any officer of such election in the discharge of his duties; or by any such means, or other unlawful means, induces any officer of an election or officer whose duty it is to ascertain, announce, or declare the result of any such election, or give or make any certificate, document, or evidence in relation thereto, to violate or refuse to comply with his duty or any law regulating the same; or knowingly receives the vote of any person not entitled to vote, or refuses to receive the vote of any person entitled to vote, or aids, counsels, procures, or advises any such voter, person, or officer to do any act hereby made a crime, or omit to do any duty the omission of which is hereby made a crime, or attempts to do so, he shall be punished by a fine of not more than five hundred dollars, or by imprisonment not more than three years, or by both, and shall pay the costs of the prosecution.'

Under this statute an indictment was found against the plaintiff in error in the district court of the United States for the western division of the western district of Missouri. That indictment was as follows:

'The grand jurors of the United States of America, duly chosen, selected, impaneled, sworn, and charged to inquire of and concerning crimes and offenses in the western district of Missouri and western division thereof, on their oaths present that on the 8th day of November, A. D. 1892, at Kansas City, in the county of Jackson, and state of Missouri, there was then and there an election duly and in due form of law had and held for choice of representative in the congress of the United States, which said place aforesaid was then and there a portion of the fifth congressional district of Missouri.

'And the grand jurors aforesaid, upon their oaths aforesaid, do further find and present that at the said election one Morris Blitz did then and there unlawfully, falsely, knowingly, and feloniously personate and vote and attempt to vote in the name of another person other than his own name, to these grand jurors unknown, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the United States.

'And the grand jurors upon their oaths aforesaid, in the name and by the authority of the United States, do further find and present that at said election the said Morris Blitz then and there, in the western division of the western district of Missouri, unlawfully, falsely, knowingly, and feloniously vote at a place, to wit, at the sixth precinct in the Second ward in said city, where he was not then and there lawfully entitled to vote, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the United States.

'And the grand jurors aforesaid, upon their oaths aforesaid, in the name and by the authority of the United States, do further find and present that at the said election the said Morris Blitz did then and there, in the western division of the western district of Missouri, unlawfully, knowingly, and feloniously vote at said election for a candidate for the same office for representative in the congress of the United States more than once, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the United States.'

A verdict of guilty having been returned upon each count of the indictment, the defendant moved for a new trial and in arrest of judgment upon written grounds filed. The motion for a new trial was denied, and the motion in arrest of judgment was sustained as to the second count of the indictment, and overruled as to the first and third counts. Thereupon the defendant was sentenced upon the first count to imprisonment in the penitentiary for the period of one year and a day, such imprisonment to begin on the 28th day of November, 1893,—on which day the sentence was pronounced,—and, upon the third count, to imprisonment for a like period, to begin upon the expiration of the sentence upon the first count.

1. The first assignment of error relates to the refusal of the court below to permit Wachs, a witness for the prosecution, to answer a certain question propounded to him on cross-examination. Upon examination in chief the witness states that he was a special deputy of the United States marshal at the general election in November, 1892; that during the whole of the day of the election he was at the voting place in precinct No. 6, in Kansas City, Mo., and that he saw Blitz, whom he had known by sight for about three years, vote twice at that poll,—once in the morning, about 10 o'clock, and again in the afternoon, between 3 and 4 o'clock. Upon cross-examination he was asked, 'Why did you not arrest Blitz when you saw that he had voted?' The witness was not allowed to answer this question, and to that action of the court the defendant excepted.

The question was clearly irrelevant, and was properly excluded. The reasons, whatever they may have been, that induced the witness not to arrest the defendant when the latter voted the second time at the same election, did not throw any light upon the issue to be determined. If the object was to test the accuracy or credibility of the witness, it is quite sufficient to say that the extent to which a cross-examination may be allowed for such a purpose—especially where, as in this case, the question had no reference to any matter disclosed by the examination in chief—is largely subject to the sound discretion of the trial court, and the exercise of that discretion is not reviewable upon writ of error; certainly not where the question, upon its face, suggests nothing material to the inquiry whether the defendant is guilty or not guilty of the specific offense charged in the indictment.

2. The overruling of the motion for new trial is next assigned for error. We had supposed that it was well understood by the bar that the refusal of a court of the United States to grant a new trial cannot be reviewed upon writ of error. Parsons v. Bedford, 3 Pet. 433, 447; Railroad Co. v. Fraloff, 100 U. S. 24; Railroad Co. v. McDaniels, 107 U. S. 456, 2 Sup. Ct. 932.

3. The third assignment of error relates to the overruling of the motion to arrest the judgment upon the first and third counts of the indictment.

We are of opinion that this motion should have been sustained in respect to the first count. The statute makes it an offense for any person to knowingly personate and vote, or attempt to vote, in the name of another person, whether living, dead, or fictitious, at an election for representative or delegate in congress. It appears in this case—and, if it did not appear, the court would judicially know—that the election referred to in the introductory part of the indictment was a general one, at which voters were at liberty to vote at the same poll, by printed ballot, not only for a representative in congress, but for state officers, including presidential electors. It was one election for all such officers, and the exercise...