Ex parte Perkins

• Decision Date: 01 March 1887
• Parties: Ex parte PERKINS. [1]
• Court: United States Circuit Court, District of Indiana

29 F. 900

Ex parte PERKINS. ^[1]

United States Circuit Court, D. Indiana.

March, 1887

Petitioner was committed by a United States commissioner for contempt in refusing to be sworn as a witness, in an examination, before the commissioner, of certain persons charged with violation of the United States election laws. The affidavit upon which the examination was based was as follows:

'Before me, William A. Van Buren, a United States commissioner appointed by the circuit court of the United States for the district of Indiana in the Seventh circuit, to take acknowledgments of bail etc., according to the acts of congress in that behalf provided, personally appeared this day Theodore A. Wagner, who, being first duly sworn, deposes and says that he has good reason to believe, and does verily believe, that on the second day of November, in the year of our Lord, 1886, at the district aforesaid, an election being then and there holden for the choosing of a representative in the congress of the United States from the Seventh congressional district of the state of Indiana, said election being holden on the same day and year last aforesaid, certain persons, to-wit, William F. A. Bernhamer, Simeon Coy, Henry D. Spaan, and John Counselman, and others to this affiant unknown, did conspire together, and with each other, to commit an offense against the United States; that is to say, the said persons, to-wit, William F. A. Bernhamer and John Counselman, being then and there officers of said election aforesaid; and members of the board to canvass the returns thereof, that is to say, being then and there inspectors, and said William F. A. Bernhamer, being the duly-elected chairman of said convassing board, respectively, and the said Simeon Coy and Henry D. Spaan, being citizens and voters present at said election and said canvass of the returns thereof, at said election duly appointed and sworn to discharge his and their duties as such officer and officers, at said election for the Second precinct of the Fourth ward of the city of Indianapolis, in the county of Marion, in the state of Indiana, and district aforesaid, did then and there unlawfully, fraudulently, knowingly, and feloniously do a certain act in pursuance of said conspiracy, to effect the object thereof, which object was then and there to falsely, unlawfully, and feloniously change the tallies, tally-sheets, and the returns thereon, of and at said election, at the precincts hereinafter named, so as to show, by false, fraudulent, forged, and substituted returns of said tallies and upon said tally-sheets, that one Frank A. Morrison was then and there chosen and elected at said election to the office of coroner of the said county of Marion, whereas in truth and in fact he was not so chosen and elected; and also to show, by said false, fraudulent, forged, and substituted returns, that one Albert F. Ayres was then and there chosen and elected to the office of judge of the criminal court of said county of Marion, whereas in truth and in fact the said Ayres was not so chosen and elected; and otherwise to change, alter, and forge said tally-sheets and said returns thereon at said election aforesaid.'

Here follows a detailed statement of the erasures and alterations made in a number of tally-papers and poll-books, but all in reference to the offices of criminal judge and coroner.

David Turpie, Dist. Atty., Ritter & Ritter and Harrison, Miller & Elam, for the United States.

Baker, Hord & Hendricks, Harris & Calkins, and Duncan, Smith & Wilson, for petitioner.

GRESHAM J.

The statutes of Indiana provide that when the votes at any election are counted, the board of judges shall make out a certificate stating in words the number each person has received for any office; and such certificate, with one of the lists of voters and one of the tally-papers, shall be deposited with the inspector, or one of the judges selected by the board. Section 4712. Before this certificate is made out, the ballots, with one of the lists of voters and one of the tally-papers, are, in presence of the judges and clerks, placed by the inspector in a paper envelope or bag, which is closed, sealed, and delivered by him to the county clerk as soon as possible, on or before the Thursday next succeeding the election. Section 4713. The inspectors of each township or precinct, or the judges to whom the certificates, poll-books, and tally-papers are delivered, constitute a board of canvassers, whose duty it is to canvass and estimate them, and to assemble at the court-house, on the Thursday next succeeding the election, for that purpose. Section 4715. The board of canvassers is required to compare and examine the papers intrusted to it, and to aggregate and tabulate from them the vote of the county. A statement thereof is drawn up by the clerk of the circuit court showing the votes for each person in each township and precinct, and the aggregate of such votes, which is signed by each member of the board, and delivered to the clerk, with the certificates, poll-books, and tally-papers so used by it. Section 4717. The board declares and certifies the highest number of votes given for each office, (section 4718,) and 10 days after its return is made the clerk issues certificates of election to persons entitled thereto, on their demand, except where they are commissioned by the governor. In such cases, the clerk, within 10 days after the receipt by hi; of the return of the board, forwards a statement of the votes and the persons who have been declared elected, by mail, to the secretary of state. Section 4721. The secretary of state immediately compares and estimates the votes given for representatives in congress, and certifies to the governor the persons having the highest number of votes as duly elected, and the governor issues to each of them a certificate of his election. Section 4728.

On the seventh day of December, an affidavit was made and filed by Theodore Wagner before William A. Van Buren, one of the commissioners of this court, charging William F. A. Bernhamer and John H. Counselman, who were officers of an election which was held on November 2, 1886, for the purpose of choosing state and county officers and a representative in congress from the Seventh congressional district of Indiana, with having conspired with Simeon Coy and Henry D. Spaan to commit an offense against the United States by changing the tally-papers that were prepared at several precincts, and designed for the use of the board of canvassers, so as to show and have it declared that Frank A. Morrison was elected coroner, and Albert F. Ayers was elected criminal judge, of Marion county, when they were not so elected; and that, in furtherance of this conspiracy, they did so change such tally-papers. The defendants were arrested, and brought before the commissioner for examination, and in the course thereof Samuel E. Perkins was subpoenaed, and called as a witness for the government, and declined to be sworn or testify, claiming that the commissioner had no jurisdiction of the offense charged in the affidavit. He was thereupon committed to the jail of Marion county for the term of three months by the commissioner as for a contempt of court. Perkins applied for release upon a writ of habeas corpus, which was denied by the district court, and his application is now before this court on appeal.

The provisions of the federal statutes which are cited as applicable to the offenses charged in the affidavit are sections 5511, 5512, 5514, and 5515. So much of section 5511 as need be referred to provides that if at any election for representative in congress, any person knowingly personates and votes, or attempts to vote, in the name of another, or votes more than once at the same election, for any candidate for the same office, or by threat, intimidation, bribery, reward, or offer thereof, unlawfully interferes in any manner with any officer of such election in the discharge of his duties, or by any such means, or any other unlawful means, induces any officer of an election, or officer whose duty it is to ascertain, announce, or declare the result of any such election, or give or make any certificate or evidence in relation thereto, to violate or refuse to comply with his duty, or knowingly aids, counsels, or advises any such voter or officer to do any act thereby made a crime, or omits to do any duty the omission of which is thereby made a crime, shall be punished as therein specified.

The greater portion of section 5512 relates to fraud in registration of voters at elections for representatives in congress, and concludes by declaring that if any such officer or other person who has any duty to perform in relation to such registration or election, in ascertaining, announcing, or declaring the result thereof, knowingly neglects or refuses to perform any duty required by law, or violates any duty imposed by law, or does any act unauthorized by law, relating to or affecting such registration or election, or the result thereof, or any certificate or evidence in relation thereto, or if any person aids, counsels, procures, or advises any such voter, person, or officer to do any act hereby made a crime, every such person shall be punishable as in the last section.

Section 5514 declares that whenever the laws of any state or territory require that the name of a candidate or person to be voted for as representative or delegate in congress shall be printed, written, or contained on any ticket or ballot with the names of other candidates or persons to be voted for at the same election, as state, territorial, municipal, or local officers, it shall be deemed prima facie evidence to convict any person charged with voting, or offering to vote unlawfully, under...