Babbitt v. State

• Decision Date: 17 August 1918
• Docket Number: 923
• Citation: 26 Wyo. 27,174 P. 188
• Parties: BABBITT v. STATE
• Court: Wyoming Supreme Court

174 P. 188

26 Wyo. 27

BABBITT v. STATE

No. 923

Supreme Court of Wyoming

August 17, 1918

ERROR to District Court, Laramie County, HON. WILLIAM C. MENTZER Judge.

Orren C. Babbitt was convicted of defacing election ballots and he brings error.

Reversed and remanded with directions.

H Donzelmann, for plaintiff in error.

The indictment is insufficient and fails to charge an offense under the laws of the State. Where the definition of an offense includes generic terms, it is not sufficient to charge the offense in the terms as in the definition, but it must state the species. (Archibold Crim. Pract. & Pleading Vol. 1, p. 291; U. S. v. Cruckshank, 92 U.S. 544-548; Com. v. Filburn, 119 Mass. 297; U. S. v. Carll, 105 U.S. 611; McCann v. U.S. 2 Wyo. 274-296; 22 Cyc. 340; Wilcox v. State, 166 P. 74; McGinnis v. State, 16 Wyo. 72; Ellers v. State, 25 Ohio State Rep. 388; Wrights Rep. Vol. 1, p. 483; Dillingham v. State, 5 Ohio State Rep. 284-285; U. S. v. Potter, 56 F. 89; U. S. v. Cook, 17 Wallace (U. S. S.Ct. Rep.) 174; Williams v. State, 12 Tex. Court of Appeals, 395-401.) The scienter must be alleged and proven. (U. S. v. Slenker, 32 F. 691-695; U. S. v. Carrl, 105 U. S. Rep. 611-612.) It is only when the statute sets forth all the elements of the offense that an indictment or information in the language of the statute is sufficient. (McGinnis v. State, 16 Wyo. 72.) If the indictment or information does not charge facts constituting a crime, it will not be aided by intendment or implication. (State v. Jamison, 81 N.W. 594; State v. Potter, 28 Ia. 554.) The information in the present case does not allege that the election was authorized by law and is therefore insufficient. (Section 6173 Comp. Stats. 1910.) It should allege that there was an election lawfully held. (Ex parte Rodiguez, 39 Tex. 705; Tipton v. State, 27 Ind. 492-493; Newel v. Commonwealth, 2nd Wash. Va. 88; Reg. v. Vaile, 6 Cox C. C. 470; Reg. v. Hagne, 4 B. & S. 715.) A lawful ballot is defined by statute. (Comp. Stats. 1910, Sections 2180-2185.) No other ballots may be counted. (Section 2187 Comp. Stats.) Official ballots are defined by statute. (Laws 1911, Chapter 51, Section 8.) The information does not charge an offense and the point was properly raised by motion in arrest. (McGinnis v. State, supra; Hoover v. State, 110 Ind. 349.)

D. A. Preston, Attorney General, and Wilfred O'Leary, Deputy Attorney General.

The information charges an offense under Section 2310, Comp. Stats. 1910; it follows the language of the statute. The statute states all of the essential elements of the offense. An information in the language of the statute is sufficient. (14 R. C. L. 185; Cook v. State, 11 Ga. 53; Whiting v. State, 14 Conn. 487; Dickhant v. State, 85 Maine 451; Simmons v. State, 12 Mo. 268; Hess v. State, 5 Ohio 5, 11 L. R. A. 530; State v. Smart, 55 A. D. (S. C.) 683.)

Sam M. Thompson, County and Prosecuting Attorney, for Defendant in Error.

The word "deface" is not a generic term and, particularly as to the means of defacement, was unnecessary. (State v. Mundy, 2 Marv. (Del.) 429, 43 A. 260; Phelps v. People, 72 N.Y. 334; Pay v. Com. 55 S.W. 687, 21 Ky. L. Rep. 1562; State v. Tisdale, 39 La. Ann. 467; 2 So. 406; State v. Mass, 37 La. Ann. 292; State v. George, 93 N.C. 567; State v. Blease, 1 McMull (S. C.) 472; State v. Cantrell, 2 Hill (S. C.) 389; U. S. v. Hill, 28 F. Cases No. 16,730, Baldwn. 78.) It is unnecessary to explain in the information the meaning of words used in the statute. (Sterne v. State, 20 Ala. 43.) Matters of necessary inference need not be alleged. (Com. v. Caldwell, 14 Mass. 330; 22 Cyc. 303-304.) The exception could only be taken by motion to quash. (Wilbur v. Territory, 3 Wyo. 268; McGinnis v. State, 16 Wyo. 72; Koppala v. State, 15 Wyo. 398; Patrick v. State, 17 Wyo. 115.) The rule is that where a particular knowledge is essential to the commission of an offense, scienter must be averred unless the statement of the act itself implies knowledge of its illegality. (32 Cyc. 327-328; Stein v. State, 37 Ala. 123; State v. Graham, 38 Ark. 519; Com. v. Stout, 73 Mon. 247; Birney v. State, 8 Ohio 230.) Section 6173, Comp. Stats. 1910, does not require an allegation in cases of this character, that the election was authorized by law, but simply says such allegations shall be deemed sufficient. It makes no special reference to Section 2310, Comp. Stats. 1910. The language of the statute was followed in framing the information and, in addition, it was charged that the defaced ballots had been voted at the primary election held in said county and State on the 22nd day of August, 1916. This would seem a reasonable compliance with the rule. It is unnecessary to allege that the ballots were official ballots, since we have in legal effect stated that said ballots were official ballots, as only official ballots can be voted at a primary election. (Section 2214, Comp. Stats. 1910, subdivisions 1, 5, 17, 18 and 20; Sections 2229, 2231 and 2234, Comp Stats. 1910; Section 2187, Comp. Stats. 1910; Session Laws 1911, Chap. 51, Sec. 8.) All facts necessary to constitute the offense must be charged. (22 Cyc. 293.) We believe the information in the case at bar comes within the requirements and states every act necessary to constitue a valid charge under Section 2310, Comp. Stats. 1910.

BEARD, JUSTICE. POTTER, C. J., and BLYDENBURGH, J., concur.

OPINION

BEARD, 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 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 be 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 primary 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 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...