Rose v. Commonwealth

• Decision Date: 07 September 1914
• Citation: 82 S.E. 699,116 Va. 1023
• Parties: ROSE. v. COMMONWEALTH.
• Court: Virginia Supreme Court

82 S.E. 699

(116 Va. 1023)

ROSE.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Sept. 7, 1914.

Error to Circuit Court, Wise County. Hiram Rose was convicted of violating the election law, and brings error. Reversed.

Chase & Daugherty, of Grundy, for plaintiff in error.

Jno. Garland Pollard, Atty. Gen., and C. B. Garnett, Asst. Atty. Gen., for the Commonwealth.

BUCHANAN, J. The first error assigned in this case is to the action of the court in overruling the demurrer of the accused to the indictment upon which he was tried.

There are two counts in the indictment, one for the violation of section 3853 of the Code, and in the other the offense intended to be charged was one of those created by section 145a of Pollard's Code. It is not claimed by the accused that the first count is not sufficient; his objection applies solely to the second count.

The demurrer being general or to the entire indictment, and not to each count, the court did not err in overruling the demurrer, even if the second count be bad; for it is well established that such a demurrer must be overruled if there be one good count in the indictment. Hendrick's Case, 75 Va. 934.

Upon the trial the jury found the accused guilty as charged in the second count, and said nothing as to the first. The effect of this finding was to acquit him of the offense charged in the first count Stuart's Case, 28 Grat. (69 Va.) 953, and cases cited.

The first and second subdivisions of section 145a of Pollard's Code provide:

"(1) No candidate for Congress, or for either House of the General Assembly of Virginia, or any state, county, district, or municipal office, shall expend, pay, promise, loan, or become pecuniarily liable in any way for any money or other valuable thing to influence voters in his behalf, or permit the same to be so used, with his knowledge and consent, by his friends or adherents in any election, primary or nominating convention: Provided, however, that no expenditure made by any candidate or his adherents and friends for the purpose of printing or advertising in some newspapers, or in securing suitable halls for public speaking at a reasonable price, shall be deemed illegal.

"(2) That no person shall expend, pay, promise, loan, or become pecuniarily liable in any way for, any money or other valuable thing in behalf of any candidate for office at any election, primary or nominating convention held in this commonwealth. Any person or candidate violating any of the provisions of this or the preceding section of this act shall be subject to a fine of not less than one hundred nor more than one thousand dollars, or confined in jail not less than one nor more than twelve months."

The object of the provisions quoted was to prevent a candidate for any of the offices mentioned, and other persons, from using money, credit or other thing of value to influence voters in behalf of such candidate. A necessary element or ingredient of the offenses created by those provisions is that the money, credit, or other thing of value used must be used to influence a voter or voters in behalf of such candidate. This being so, an indictment for either of the offenses created by the provisions quoted should so aver; for an indictment upon a statute should state all the circumstances which constitute the definition of the offense in the act, so as to bring the accused precisely within it. Hampton's Case, 3 Grat (44 Va.) 5...