In re Coy

• Decision Date: 16 July 1887
• Parties: In re COY.
• Court: United States Circuit Court, District of Indiana

31 F. 794

In re COY.

United States Circuit Court, D. Indiana.

July 16, 1887

HARLAN Justice.

The petitioner, Coy, is in custody under process based upon two indictments in the district court of the United States for the district of Indiana. He claims that that with which he is charged, if crimes at all, are crimes against the state, and not against the United States; consequently, that the district court is without jurisdiction to proceed against him. If this contention be sound, the prisoner is entitled to be discharged, (Ex parte Lange, 18 Wall. 163; Ex parte Rowland, 104 U.S. 604; Ex parte Fisk, 113 U.S. 718, 5 S.Ct 724;) otherwise he must be remanded to the custody of the proper officer to be tried for the offenses charged.

One of the indictments is under section 5440, Rev. St., which provides that 'if two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars, or to imprisonment for not more than two years, or to both fine and imprisonment, in the discretion of the court.' 21 St 4; Rev. St. Supp. 484. The first count of that indictment charges that Samuel E. Perkins, Simeon Coy, Henry Spaan, John H. Councilman, Charles N. Metcalf, John E. Sullivan, Albert T. Beck, George W. Budd, Stephen Mattler, William F. A Bernhamer, and John L. Reardon did 'conspire, confederate, and agree together, between and among themselves, to commit an offense against the United States, and did then and there, unlawfully, knowingly, and feloniously, then and there conspire, combine, confederate, and agree together, between and among themselves, to induce, aid, counsel, procure, and advise one Allen Hisey to unlawfully neglect and omit to perform a duty required and imposed by the laws of the state of Indiana relating to and affecting a certain election had and held at and in the county of Marion, in the state and district of Indiana, and at the Second precinct of the Thirteenth ward of the city of Indianapolis, in the county of Marion aforesaid, on the second day of November, A.D. 1886, pursuant to law, at which election a representative in congress for the Seventh congressional district of Indiana was voted for, to wit: To unlawfully neglect and omit to safely keep in his possession and custody the tally papers, poll-lists, and certificates of said election at said precinct; he, the said Allen Hisey, being then and there an officer of said election, to-wit, an inspector of said election at the Second precinct of the Thirteenth ward of the city of Indianapolis aforesaid, having been thereto duly appointed, and having duly qualified under the laws of the state of Indiana, and acting as such inspector; and that, to effect the object of said conspiracy, the said Samuel E. Perkins then and there, after one of the tally papers and one of the poll-lists of said election at said precinct, and the certificate of the number of votes each person had received at said election at said precinct, designating the office, signed by the board of judges of said election at said precinct, had been deposited with him, the said Allen Hisey, as inspector as aforesaid, and that after he, the said Allen Hisey, had received the said tally paper, poll-list, and certificate aforesaid, for the purpose of returning the same to the board of canvassers of said election for the county of Marion aforesaid, he, the said Samuel E. Perkins, did then and there, by unlawfully and feloniously counseling and advising him, the said Allen Hisey, so to do, and by other unlawful means, to the grand jurors aforesaid unknown, unlawfully used to effect the same unlawful purpose, unlawfully induced and procured him, the said Allen Hisey, to unlawfully omit and neglect to safely keep said tally paper, poll-list, and certificate in the possession and custody of him, the said Allen Hisey, as inspector as aforesaid, and by said unlawful means induced and procured said Allen Hisey, as inspector as aforesaid, to surrender and deliver to and into the possession of the said Samuel E. Perkins, and permit him, the said Samuel E. Perkins, to take and have the possession and custody of said tally paper, poll-list, and certificate, and the said tally paper to then and there unlawfully mutilate, alter, forge, and change, before the said tally paper, poll-list, and certificate had been returned to and canvassed and estimated by the board of canvassers of the said election of the county of Marion aforesaid, he, the said Samuel E. Perkins, not being then and there an officer of said election, and not then and there being a person authorized by the laws of the state of Indiana to have possession and custody of said tally paper, poll-list, and certificate aforesaid,-- contrary to the form of the statute of the United States, and against the peace and dignity of the United States of America. ' The second count charges the defendants with having committed a like offense in respect to the same election in the Second precinct of the Twenty-third ward of Indianapolis; and the third count charges them with having committed a like offense in respect to the election in the Second precinct of the Tenth ward.

The other indictment is against Coy alone. It charges him with having unlawfully and feloniously advised, induced, and procured the inspector at said election in the Third precinct of the Thirteenth ward-- with whom was deposited the poll-list, tally paper, and certificate of the election-- to neglect and omit the performance of the duty, imposed by law, of safely keeping said documents in his possession until delivered to the board of canvassers, and to surrender them to Perkins, by whom they were altered and mutilated.

Under what circumstances is the failure, neglect, or refusal of an officer of an election, at which a representative in congress is voted for, to perform a duty imposed upon him, as such officer, by the law of the state, an offense against the United States?

By section 5511, Rev. St. U.S., it is provided that 'if, at any election, for representative or delegate in congress, any person * * * interferes in any manner with any officer of such election in the discharge of his duties; or by any such means, or 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, document, or evidence in relation thereto, to violate or refuse to comply with his duty or any law regulating the same; * * * or aids, counsels, procures, or advises any such * * * officer to do any act hereby made a crime, or omit to do any duty the omission of which is hereby made a crime, or attempt to do so,-- he shall be punished,' etc.

That the persons mentioned in the various counts of the indictment for conspiracy as inspectors of election were lawfully in the discharge of the functions appertaining to that position is conceded in argument, and is aptly alleged in the indictment. It is also conceded, and, if it were not, it is clear, from the statutes of the state, to be hereafter examined, that they were under a duty to give or make a certificate, document, or evidence in relation to the election in their respective precincts. Each inspector, at such election, who violated or refused to comply with his duty, or any law regulating the same, as well as every one who aided, counseled, procured, or advised him to violate, refuse, or omit to perform his duty, were, according to the express words of this section, guilty of a crime. It is equally clear, in the other case, that the petitioner, Coy, committed a crime, if he aided, counseled, procured, or advised an inspector, at such election, to violate or to refuse or omit to comply with his duty or any law regulating the same.

By section 5515 it is provided: 'Every officer of an election at which any representative or delegate in congress is voted for, whether such officer of election be appointed or created by or under any law or authority of the United States, or by or under any state, territorial, district, or municipal law or authority, who neglects or refuses to perform any duty in regard to such election required of him by any law of the United States, or of any state or territory thereof; or who violates any duty so imposed; or who knowingly does any acts thereby unauthorized, with intent to affect any such election or the result thereof; * * * shall be punished as prescribed in section 5511. ' Rev. St. Supp. 142.

Observe, 'intent' is not made an element in determining the existence of the offenses specified in that section, except in those cases where the offender knowingly does an act 'unauthorized' by the law of the United States, or by the law of the state or territory under whose sanction he exercises the functions of an officer of election. His neglect or refusal to perform a duty required by law in regard to an election, at which a representative in congress is voted for, is made by this section an offense against the United States, although such non-performance of duty is without an evil intent; while the doing of an act simply 'unauthorized' by law is not punishable unless done with an intent to affect the election or the result thereof. Whether that distinction is justified by sound public policy was for the law-making department of the government to determine. It was well said by the court-- commenting on section 5515-- in U.S. v. Jackson, 25 F. 550:

'Congress seeks by this statute to guard the election of members of congress against any possible

...