Baum v. The State

• Decision Date: 22 October 1901
• Docket Number: 19,638
• Parties: Baum v. The State
• Court: Indiana Supreme Court

61 N.E. 672

157 Ind. 282

Baum v. The State

No. 19,638

Supreme Court of Indiana

October 22, 1901

From Montgomery Circuit Court; Jere West, Judge.

Henry Baum was convicted of selling his vote and disfranchised. From the judgment he appeals.

Affirmed.

M. E Clodfelter, H. N. Fine and I. C. Dwiggins, for appellant.

W. L Taylor, Attorney-General, C. C. Hadley, Merrill Moores and F P. Mount, for State.

OPINION

Dowling, J.

The appellant was tried and convicted upon an affidavit and information charging him with the offense of selling his vote at the November election, 1900, in violation of an act of the legislature approved March 4, 1899 (Acts 1899, p. 381), § 2329 Burns 1901. By the judgment of the court, the appellant was disfranchised and rendered incapable of holding any office of trust or profit for the term of twelve years.

Error is assigned upon the overruling of the motion to quash the affidavit and information. The grounds of this motion were, that the statute upon which the prosecution was founded is in conflict with §§ 1, 2, 8, of article 2 of the Constitution of this State, and that the affidavit and information did not state facts sufficient to constitute a public offense.

More specifically stated, the constitutional objections taken to the statute are (1) that the crime defined by it is not an infamous crime, and therefore not subject to the punishment of disfranchisement; (2) that it grants immunities to and protects one class of citizens, and punishes another class, each class being guilty of the same crime, and (3) that it prevents the freedom and equality of elections.

The sections of the act, under which the appellant was tried and adjudged guilty, are in these words:

"Sec. 1. That whosoever sells, barters, or offers to sell or barter his vote, or offers to refrain from voting for any candidate or candidates for any office at any general, special or primary elections or convention, either for money or property, or thing of value, or for any promise or favor or hope of reward, or who shall accept any money, property, or thing of value, with the promise or pretense of voting for, or refraining from voting for any candidate or candidates, shall upon conviction therefor be disfranchised and rendered incapable of holding any office of profit or trust, for a period not less than ten years nor more than twenty years.

"Sec. 2. Any person or persons having knowledge or information of the violation of the provisions of this act, who shall procure or furnish or cause to be procured or furnished the testimony necessary to secure a conviction of the person or persons violating the same shall be entitled to a reward of $ 100 payable out of the treasury of the county in which such conviction shall be had and the right to such reward shall be a valid claim against such county."

Section 8 of article 2, one of the provisions of the Constitution with which the statute is alleged to conflict, reads thus: "The General Assembly shall have power to deprive of the right of suffrage, and to render ineligible, any person convicted of an infamous crime."

It is contended on behalf of the appellant that this constitutional provision is a limitation upon the power of the legislature, and that no person can be disfranchised for an offense which is not an infamous crime. Counsel insist that the words infamous crime must be construed to apply only to such criminal offenses as were understood to be infamous in their character when the Constitution of 1851 was adopted; that, at that time, the offense of vote selling was not an infamous crime; and, hence, that the legislature could not disfranchise a person convicted of that offense.

While it is true that the revised statutes of 1843 declared that certain crimes should be deemed infamous, and that vote selling was not among them, yet this provision cannot be regarded as conclusive of the question of what crimes were then understood to be infamous. R. S. 1843, § 79, p. 999.

The Constitution of 1816 contained a provision substantially like that of § 8 of article 2 of the Constitution of 1851; but while that provision was in force, the General Assembly affixed the penalty of disfranchisement to many offenses which were not included in the list of crimes declared to be infamous by the statutes of 1838, or 1843. The revised statutes of 1843 mention, among other offenses for which the punishment of disfranchisement may be inflicted, attempting to restrain the freedom of election by threats, interference, bribery, etc.; voting or attempting to vote more than once; grand larceny; petit larceny; professional gambling, and many others.

If it is conceded that the character of the offense, i. e., whether infamous or not, is to be determined by the punishment, it will be found that at common law the deprivation of civil and political privileges was...