Com. v. Howe

• Decision Date: 26 February 1887
• Citation: Com. v. Howe, 144 Mass. 144, 10 N.E. 755 (Mass. 1887)
• Parties: COMMONWEALTH v. HOWE.
• Court: Supreme Judicial Court of Massachusetts

144 Mass. 144

10 N.E. 755

COMMONWEALTH v. HOWE.

Supreme Judicial Court of Massachusetts, Middlesex.

February 26, 1887

COUNSEL

W.F. Courtney, for defendant.

If any fact or circumstance which is a necessary ingredient of the offense is omitted in the complaint, such omission vitiates the complaint. Com. v. Chapman, 11 Cush. 422; Com. v. Moore Id. 600; Com. v. Moore, 6 Metc. 243; U.S. v. Hirschfield, 13 Blatchf. 330. The complaint must embrace all the elements which the law recognizes in the offense, whether they are mentioned in the statute or come from it by construction. Bish.Crim.Proc. § 626; Morse v State, 6 Conn. 9; Pearce v. State, 1 Sneed, 63; Owen v. State, 5 Sneed, 493; State v Jackson, 39 Conn. 229. The complaint must show that a legal and valid vote, and one authorized by the statute, was taken upon the question mentioned in the complaint. Ex parte Rodriguez, 39 Tex. 705. The vote would not be legal and valid unless, at the time of balloting, the check-list were used. Pub.St. c. 100, § 5. See, also, Pub.St. c. 7, § 57. If therefore, the allegations of the complaint are true, there was no proper or legal ballot, and therefore no offense was committed. There is a fatal variance between the allegations and the proof. The statute (Pub.St. c. 7, § 57) under which the complaint is brought was first enacted in 1876. At that time there was no provision of law for voting upon the question mentioned in the complaint; a prohibitory law being then in force. The defendant contends that the "ballot" contemplated by the statute is the ballot for national, state, or municipal officers, and hence that this complaint charges no crime or offense under this statute.

H.N. Shepard, for the Commonwealth.

The motion to quash was properly overruled. The complaint was sufficient; it substantially follows the language of the statute. Pub.St. c. 7, § 57; Com. v. Desmond, 122 Mass. 12. The objection that the complaint does not allege in what city licenses were or were not to be granted is frivolous. There is a prima facie presumption that the requirements of such statutes are complied with by all officials, but in the present case there is positive and uncontroverted proof that a check-list was in fact used. The allegation that the ballot was "yes and no," instead of "yes or no," was manifestly a clerical error, and error of so little import that it can afford no ground for quashing the complaint. Com. v. McMahon, 133 Mass. 394; Com. v. Randall, 4 Gray, 36. And, further, since it is not essentially descriptive of the offense, or material to the jurisdiction, a difference between the allegation and proof cannot constitute a variance. Com. v. Brailey, 134 Mass. 529. The court properly refused to rule that there was no evidence as to the use of a check-list. It was not necessary, nor is it customary, that a separate check-list should be used for taking the vote upon the question of whether licenses to sell intoxicating liquors shall be granted. Pub.St. c. 100, § 5.

OPINION

W. ALLEN, J.

Pub.St. c. 7, § 57, provides that "whoever, *** at any national, state, or municipal election, *** knowingly gives more than one ballot at one time of balloting at such election, shall be punished,' etc. Pub.St. c. 100, § 5 provides that "in a city which at its annual municipal election, or in a town which at its annual meeting, votes to authorize the granting of licenses for the sale of intoxicating liquors," etc., that "the aldermen and selectmen, respectively, shall insert in the warrant for the annual municipal election or town meeting an article providing for a vote upon the question" of granting such licenses; that "the vote shall be by separate ballot; and in taking it the check-list shall be used." The defendant was convicted on a complaint charging him with giving more than one ballot on the question of licensing the sale of intoxicating liquors at a municipal election in the city of Lowell. The complaint cannot be sustained unless the statute first above cited includes such a ballot.

In the latter statute, the words "annual municipal election" evidently mean the annual meeting for the election of municipal officers. The law provides for such a meeting in cities, and the statute intended to provide for a vote to be taken at that meeting. The annual meeting being established by law for the election of officers, a vote required to be taken at the meeting, though not in the election of officers, was described as a vote at the annual election. If the same meaning is to be given to the word "election," in the former statute, the act charged in the complaint comes within its purview; but if it intends a ballot given in an election of national, state, or municipal officers, it does not include the act charged in the complaint. The natural import of the expression, "balloting at a national, state, or municipal election," is balloting in the election of such officers, and it suggests only balloting for them. The apparent meaning of the statute might have been controlled by the more obvious different meaning of the word "election," in the other statute, if the two statutes had been originally enacted at the same time, and if they related only to cities. But the consideration of the history and provisions of both statutes confirms the conclusion that the former statute intends only ballots cast for national, state, or municipal officers.

St.1813 c. 63, § 2, provided that "if any person, at any meeting for the choice of town officers, shall knowingly give in more than one vote or list for any officers or list of officers, when voted for at any such meeting, he shall forfeit," etc. Rev.St. c. 4, § 7, in the chapter "On the Manner of Conducting Elections," provides that "if any voter shall knowingly give in more than one ballot, at any one time of balloting, at any election, he shall forfeit," etc. This is re-enacted in Gen.St. c. 7, § 29, in the chapter under the same title. St.1874, c. 356, repealed this statute, and enacted, under the title of "An act to punish illegal voting, and to secure the purity of elections," that "whoever, with fraudulent intent, votes, or attempts to vote, upon any name other than his own, at any national, state, or municipal election, or whoever knowingly...