Commonwealth v. McHale
| Decision Date | 02 May 1881 |
| Citation | 97 Pa. 397 |
| Parties | Commonwealth v. McHale, Kelley, Feeney and Others, Unknown. Commonwealth v. McHale and Others, Unknown. Commonwealth v. McHale. Commonwealth v. James T. Kelley. Commonwealth v. John J. Kelly. |
| Court | Pennsylvania Supreme Court |
March 14, 1881
1. Offences against the purity and fairness of public elections are crimes at common law and indictable as such.
2. The making of false and fraudulent entries in the book of voters at an election, the depositing of false and fraudulent ballots on a like occasion, and the assuming and undertaking to count the ballots cast at an election, in a false and fraudulent manner, are acts which, if not performed by election officers, are not specified as indictable offences either by the Act of July 2d 1839, Pamph. L. 519, or any other Act of Assembly. They are nevertheless, offences at common law, and as such indictable, under the terms of the Act of March 31st 1860, sect. 178, Pamph. L. 425.
3. An indictment set forth a conspiracy to commit certain offences against the election laws, some if not all of which were expressly made indictable by the provisions of the Act of July 2d 1839, Pamph. L. 519, and further set forth divers overt acts, constituting the offences above named, alleged to have been performed in pursuance of said conspiracy. Held, that the gist of the offence charged lay in the combination, that the overt acts alleged were no part of the offence, but merely evidence of it, and that, therefore there being no provision in said Act of Assembly, making a conspiracy to perform the acts nominated as offences therein indictable, the indictment could not be sustained under the terms of said act. Held, further, nevertheless, that said conspiracy, though not particularly nominated as an indictable offence by any other statute, was an offence at common law, and as such indictable under the terms of the Act of March 31st 1860, sect. 178, Pamph. L. 425.
4. Offences against the election laws, not made indictable by the Act of July 2d 1839, Pamph. L. 519, are governed, as regards the limitation of the time within which prosecution may be instituted, by the terms of the Act of March 31st 1860, sect. 77, Pamph. L. 450, whereby it is provided that such prosecutions may be instituted within two years next after the offence has been committed, and not by the terms of the Act of July 2d 1839, sect. 128, Pamph. L. 457, whereby said time is limited to one year.
5. Whether the latter provision is repealed by the former, not decided.
6. The Act of March 12th 1866, sect. 1, Pamph. L. 85, enabling the court to appoint a special district attorney for the conduct of a case, was not avoided by the passage of the new Constitution of 1874, making the district attorney a constitutional officer. The legislature cannot abolish the office, but can control the officer, and if he refuse, or if it be improper for him to act, may afford a remedy.
7. An indictment was brought against certain persons, for alleged offences against the fairness and purity of an election which were said to have resulted in the election of the district attorney in office when the indictments were drawn. Said district attorney disagreeing with the private counsel for the prosecutor, as to the method of proceeding, refused to sign the indictments. The court being informed of these facts, by the prosecutor's counsel, appointed the latter special district attorney to conduct the case, under the provisions of the Act of March 12th 1866, sect. 1, Pamph. L 85. Held, that said course of action was legal and proper, and that indictments signed by said private counsel as special district attorney, and by him presented to the grand jury, were valid and sufficient to support a conviction.
Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.
Error to the Court of Quarter Sessions, of Schuylkill county: Of January Term 1880, Nos. 296, 297, 298, 299 and 300.
These five cases were argued together. The record showed the following proceedings in each case:
On October 28th 1879, W. John Whitehouse made informations before a justice of the peace against the above-named defendants, charging them with the offences hereinafter particularly specified. All the defendants waived a hearing except McHale, to whom the justice gave a hearing, and on Monday November 3d 1879, bound him over to appear at court. The justice immediately returned the cases to the district attorney.
On the same day, November 3d 1879, W. John Whitehouse presented to the court his petition, under the Act of March 12th 1866 Purd. Dig. 491, Pamph. L. 85, setting forth that " a difference of opinion as to the proper manner of proceeding has occurred between A. W. Schalck, Esq., district attorney, and the private counsel employed by the prosecutor, in that the district attorney has refused to sign and send before the grand jury the bills of indictment prepared by the private counsel, which said counsel and this prosecutor believe to state correctly the facts so far as the same have come to their knowledge; that the alleged frauds charged in said indictment were perpetrated in the interest of said district attorney, and the bills of indictment so charge; that the district attorney alleges that the bills of indictment do not correctly state the facts concerning which the prosecutions were brought; " and praying the court to direct the private counsel, Guy E. Farquhar, Esq., employed by the prosecutor, to conduct the entire proceedings, and if necessary to verify the indictments by his own signature.
The court having given the district attorney an opportunity to sign the bills, during the session of the court, on his failure to do so, or to present other indictments, on the same day granted the prayer of the petition and appointed Guy E. Farquhar, Esq., special district attorney to prosecute the cases.
Mr. Farquhar having been sworn in, signed and presented the indictments to the grand jury, then in session, which body found a true bill in each case.
The several cases were as follows:--
I. and II. TWO CONSPIRACY CASES, January Term 1880, Nos. 296, 297.
Two indictments for conspiracy were found, the one against Anthony McHale, James T. Kelley, Martin Feeney and others unknown, and the other against Anthony McHale and others unknown. They were, excepting as to the names of the defendants, precisely similar. They charged in the first count, in substance, that on November 5th 1877, the defendants, intending to prevent a free election at the South Cass poll, and intending to procure a false return, did conspire, by means of procuring unqualified persons to offer to vote, and procuring the election officers to accept such votes, and by means of false entries in the books kept by the election clerks of names of persons purporting to have voted, and by means of false ballots and false count, and other corrupt means, fraudulently to procure a return from the election officers to the prothonotary, which would show falsely a greater number of votes for A. W. Schalck for district attorney than a true and correct return would have shown, and to cause the said false number of votes to be computed in the general count of votes cast for said office. It is then alleged, as overt acts, that in pursuance of said conspiracy the defendants did, on November 6th 1877 (election day) procure many unqualified persons (naming them) to offer to vote, and did procure the election officers to receive such votes, and did cause the names of many persons (naming them) to be falsely added to the books of the election officers, known as the " lists of voters," as if they had voted, when, in fact, they had not, and did cause false ballots to be substituted and counted instead of the true ballots--the false ballots containing the name of said Schalck for district attorney--and did falsely deposit in the boxes a large number of ballots not polled by voters, all containing the name of A. W. Schalck, and did fraudulently make a false count of the ballots, and did cause a false return of the votes cast, which return they caused to be transmitted to the prothonotary as the return of votes cast at such election.
The second count was identical with the first, excepting that it did not state specifically the means intended to be used by the conspirators, stating them only as " divers tricks and devices, and other illegal and corrupt means."
The third count was identical with the second, excepting that it stated the intention of the conspirators to be to procure a false return (omitting the charge as to preventing a free election), and that it omitted, in the averment of overt acts, any charge as to procuring unqualified persons to vote, and the reception of such illegal votes by the election officers.
The fourth count was identical with the third, excepting that it omitted all averment of overt acts, simply charging that the defendants, intending to procure a false count and return of the votes cast at said election, conspired by means of divers tricks, & c., to procure a return from the election officers to the prothonotary as the return of the said election, which return would show falsely a greater number of votes for A. W. Schalck than would have been returned according to the true count, and to cause said false number of votes so returned, to be computed for said Schalck in the general count.
The fifth count charged that the defendants, intending to procure a false computation in the general count and computation of the votes cast for said office, conspired by means of divers tricks, & c., to cause a false number of votes to be computed for A. W. Schalck for said office, greater than would have been computed according to the true vote cast.
III. CASE...
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