Commonwealth v. Brown

• Decision Date: 16 May 1906
• Parties: Commonwealth v. Brown.
• Court: Kentucky Court of Appeals

Page 15

123 Ky. 15

Commonwealth v. Brown.

Court of Appeals of Kentucky.

May 16, 1906.

Appeal from Jefferson Circuit Court, Criminal Branch.

JOSEPH PRYOR, Judge.

Defendant acquitted and Commonwealth appeals.

Opinion certified.

LOUIS B. WEHLE for appellant.

EDWARDS & OGDEN for appellee.

OPINION BY JUDGE NUNN — Certifying the Law.

The appellee was indicted and tried for the violation of section 1585a of the Kentucky Statutes of 1903, which reads as follows: "Any officer of the election who shall knowingly and willfully give or certify to an improper certificate of the election as herein required, or shall mutilate or tamper with any of the seals or destroy or remove any of the ballots required to be preserved herein, shall be guilty of felony, and upon conviction thereof shall be confined in the penitentiary for a period of not less than one nor more than three years." The effort to convict him was for knowingly and willfully certifying to an improper certificate of the election, held on November 7 1905, in the Twenty-Eighth precinct of the Twelfth Ward in the city of Louisville.

The indictment is very lengthy. The alleged certificate is copied in full in the indictment. The substance of the charge is that "one Alex. Metz, who was then and there pretending to be acting as clerk of election in the said place, to wit, a place on Duncan street between Twenty-Third and Twenty-Fourth streets in the said precinct, wrote the names of the said duly qualified and legal voters upon stubs of the ballot book then and there used by him, making it appear as if the said duly qualified and legal voters had actually and legally been given ballots for the purpose of voting them; that the ballots which the said Alex. Metz detached from the stubs upon which he had so written were fraudulently put into the ballot box as if they had been legally cast; that the said duly qualified and legal voters were thus recorded, as if they had legally voted, when in fact they did not vote." It was further alleged in substance that appellee, Harry Brown, was appointed to serve as judge of the election in that precinct, and pretended to act as such judge. He did then and there knowingly and willfully certify to an improper certificate of election purporting to be a correct and proper certificate of election when it was false and untrue. In other words the indictment charges appellee with being a pretended officer at that election, and that Metz was a pretended clerk, who took ballots from the ballot book, and voted them, writing the names of legal voters of the precinct on the stub-book making it appear that they had voted when in fact they had not, and in this way padded the ballot box with illegal votes, and that appellee certified these votes as legal when he knew they were not. The appellee demurred to this indictment and the court overruled the demurrer.

It is claimed by the appellee that the demurrer should have been sustained for two reasons: First, because it was not alleged that the appellee was properly appointed as an election officer for that precinct. Second, for the reason that it was not alleged that he did act as an officer at the election. We cannot agree with appellee's contention upon the first proposition. It matters not, in a prosecution like this, whether the appellee was properly or regularly appointed as an officer of the election; if he acted as an officer at a legal election, and acted corruptly he cannot avail himself of any irregularity in the appointment in his defense.

Upon the second proposition we are of the opinion that the indictment was defective. It was not alleged that appellee did act as a judge at that election. The allegation is in effect that he pretendedly acted as such. The statute was enacted to punish officers who acted corruptly in holding and certifying the result of legal elections. It was not intended to punish mere pretenders for holding pretended elections. The appellee was put upon his trial under this indictment, and when the...