Cochran v. State

• Decision Date: 22 January 1913
• Citation: 87 A. 400,119 Md. 539
• Parties: COCHRAN v. STATE.
• Court: Maryland Court of Appeals

87 A. 400

119 Md. 539

COCHRAN v. STATE.

Court of Appeals of Maryland

January 22, 1913

Appeal from Criminal Court of Baltimore City; Thomas Ireland Elliott, Judge.

"To be officially reported."

Albert A. Cochran was convicted of a violation of the Primary Election Law, and he appeals. Reversed, and new trial awarded.

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON, and STOCKBRIDGE, JJ.

Edward L. Ward and Harry B. Wolf, both of Baltimore, for appellant.

Roland R. Marchant, Wm. F. Broening, and Edgar Allan Poe, all of Baltimore, for the State.

BRISCOE J.

The traverser was indicted in the criminal court of Baltimore for a violation of the Primary Election Law of the state as applicable to Baltimore city. The indictment contains 10 counts. He was tried, convicted on the ninth and tenth counts of the indictment, and acquitted on the first to the eighth counts, inclusive. He was then sentenced to be confined in the Baltimore city jail for the period of two years, and to pay a fine of $500 and costs. From the judgment so entered he has taken this appeal, and as the appeal brings up for review the rulings of the court on the whole record properly before us, including the demurrer, we will now proceed to consider them. Article 5, § 80, Code Public General Laws (Bagby's); Avirett v. State, 76 Md. 515, 25 A 676, 987; Kendrick v. Warren, 110 Md. 76, 72 A. 465; State v. Mercer, 101 Md. 537, 61 A. 220; State v. Floto, 81 Md. 602, 32 A. 315.

The ninth count charges, in substance, that the traverser on the 29th day of August, 1911, was a judge of election in the eighth precinct of the twenty-third ward of the city of Baltimore, at a primary election duly had and held under and by virtue of the laws of the state of Maryland, "and that the traverser on the said day of the year named at the city, as such judge of election, at said primary election, unlawfully did neglect then and there to count the ballots cast in the precinct, for each and every candidate whose name did then and there appear on the ballots, opposite whose name a cross-mark had been then and there placed by the voter casting each of the ballots, in said precinct in said ward, at said primary election. And that as the result of the aforesaid unlawful negligence of the traverser, as such judge of election, the tallies, statements and returns of the votes and the result of the canvass of the votes cast in said precinct, at the primary election, did then and there wrongfully and falsely show that the ballots cast in the precinct, in the ward aforesaid, were as follows."

The tenth count charges, as set out in the indictment, that the traverser "on the said day, in the year aforesaid at the city as such judge of election, in the precinct, of the ward in said city of Baltimore, at the primary election, unlawfully did neglect then and there to canvass each of the ballots separately, and to then and there look at each of the ballots as the ballot was then and there canvassed by the judges of election, and tallied by the clerks of election, in said precinct, at said primary election; and that as the result of the aforesaid unlawful negligence of the traverser, as such judge of election, the tallies, statements and returns of the votes, and the result of the canvass of the votes cast in said precinct, in said ward, at said primary election, did then and there wrongfully and falsely show that the ballots cast in the precinct, in the ward, were cast therein and thereat for the several candidates for the Democratic nominations for the aforesaid offices, as follows."

The traverser demurred to the indictment and to each count thereof, and the demurrer was overruled by the court below. In the course of the trial he reserved 12 bills of exceptions to the rulings of the court upon questions raised and set out in these exceptions, and after the verdict he filed a motion for a new trial and a motion in arrest of judgment, which were overruled by the supreme bench of Baltimore city. As the important questions for our determination are presented by the demurrer and on the bills of exceptions, we find it more convenient to consider them first. The remaining questions will be passed upon and discussed in so far as we find them necessary for the decision of the case.

It is contended upon the part of the appellant, that certain sections of chapter 741 of the Acts of 1910, known as the Primary Election Law in this state, and the sections upon which the ninth and tenth counts of the indictment rest, have been repealed by chapter 2 of the Acts of 1912, and there being no saving clause in the latter statute of the offenses charged in the ninth and tenth counts, the indictment must fall and the prosecution fail.

It must be borne in mind that we are now dealing exclusively with the ninth and tenth counts of the indictment upon the traverser's appeal. He was acquitted upon the other counts of the indictment, and as was said by this court in State v. Shields, 49 Md. 301, that after an acquittal of a party upon a regular trial on an indictment for either a felony or misdemeanor the verdict of acquittal can never afterward be set aside and a new trial granted, and it matters not whether such verdict be the result of a misdirection of the judge on a question of law or of a misconception of fact on the part of the jury. Birkenfeld v. State, 104 Md. 258, 65 A. 1; 3 Wharton's Crim. Law, § 3221; 1 Bishop's Crim. Law, §§ 992, 993.

It will be seen by reference to the various acts of Assembly upon the subject of primary elections in this state that chapter 737 of the Acts of 1908 was repealed by chapter 741 of the Acts of 1910, as will appear by the following title of the Act of 1910: "An act to repeal sections 3, 4 and 5 of chapter 737 of the Acts of 1908, relating to primary elections in the state of Maryland, and known as the Primary Election Law, and all the several and various provisions of said three sections of said act, and to enact in lieu thereof new and other sections of article 33 of the Code of Public General Laws, title 'Elections,' to be known as sections 160a, 160b, 160c, 160d, 160e, 160f, 160g, 160h, 160i, 160j, 160k, 160 l, 160m, 160n, 160 o, 160p, 160q, 160r, 160s, 160t, 160u and 160v, to come in after section 160 of said article 33, under the sub-title 'Primary Elections,' regulating primary elections in the state of Maryland, for all candidates for public office of certain political parties in and for Baltimore city and the several counties of the state, and to elect delegates to legislative, district, city and state conventions, and all members of managing bodies of certain political parties in and for Baltimore city and the several counties of the state, and all precinct, ward, city and county executives or executive committees." As our inquiry here has special reference to section 160 l and section 160n of the Acts of 1910, we will set those sections out in full.

By section 160 l, it is provided that, "the provisions, all and singular, from section 87 to 115 of this article, both inclusive, and the offenses defined and the penalties and punishments prescribed therefor in said sections, respectively, shall be fully applicable in all respects to the same persons, matters and omissions in connection with or pertaining to the primary elections or any primary election held under this article, subtitle 'Primary Elections;' and said sections are hereby made applicable to all primary elections provided for and held hereunder; and any judge, clerk or other officer of any primary election, or any voter or other person who would be deemed guilty of any offense against the general election law, or under provision or provisions thereof, in a general election, who is found guilty of the same offense in any primary election, as herein provided for, shall be deemed guilty of the same crime of which his offense is made to consist by and under the general election law, and particularly under any of the above-mentioned sections, respectively, thereof, and shall be liable to the same punishment or penalty as is prescribed for such sections thereof; provided, that sections 160m, 160n, 160 o, 160p, 160q, 160r, 160s, 160t, 160u, and 160v, hereof, with respect to offenses, penalties and punishments under the Primary Election Law shall have full force and effect in all cases to which the same are applicable."

By section 160n of the Act of 1910, it is provided that, "any judge or clerk of such primary election, or any member of any committee, or of the governing body of any political party participating in primary elections under this subtitle, or any delegate to a convention or party executive, on whom any duty is required in this subtitle to be performed, who shall be guilty of any wilful violation of any provision of this subtitle, or of any neglect or corrupt practice in executing the same, not otherwise provided for herein, he or they shall, upon conviction thereof, be punished by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500), or by imprisonment in jail for not less than thirty days, nor more than ninety days, or by both such fine and imprisonment, in the discretion of the court."

At the January session of the General Assembly of the state of 1912 the following act (chapter 2, Acts 1912) was passed, the title of which reads as follows: "An act to repeal and re-enact with amendments sections 160a, 160b, 160e, 160f, 160g, 160h, 160k, 160 l, 160u, and 160v of article 33 of the Code of Public General Laws of Maryland, title 'Elections,' sub-title 'Primary Elections,' as the said sections were enacted by chapter 741 of the acts of the General Assembly of 1910, and to add two new sections to said article 33 of the Code of Public ...