State v. Abernethy
| Decision Date | 29 October 1941 |
| Docket Number | 219. |
| Citation | 17 S.E.2d 25,220 N.C. 226 |
| Parties | STATE v. ABERNETHY. |
| Court | North Carolina Supreme Court |
N.W. Outlaw, of Goldsboro, and J. A. Jones, of Kinston, for defendant-appellant.
Harry M. McMullan, Atty. Gen., and T. W. Bruton and G. B. Patton Asst. Attys. Gen., for the State.
The defendant was convicted and sentenced upon two bills of indictment charging him with (1) conspiring with certain persons unknown to the State to interfere with, hinder, delay and obstruct the county and precinct primary election officials of Craven and Wayne Counties in the proper execution of the duties required of them by law in connection with the primary election on May 25, 1940, and (2) with the actual interference with the duties of county and precinct election officials in the primary election of May 25, 1940 by receiving and distributing a lot of Democratic primary ballots or tickets, prepared for use in said primary election, which ballots or tickets had been wrongfully removed from the custody of the County Board of Elections of Craven County, thereby depriving the said board and the precinct election officials of said county, of the use and control of said ballots or tickets in said primary election.
The defendant's demurrer to the evidence on the bill of indictment charging him with the receiving of stolen property knowing it to have been stolen was sustained, and the bills of indictments charging the conspiracy to and the actual interference with the election officials are alone left for consideration. The first question presented in the appellant's brief is whether the Court erred in refusing to grant the defendant's motion to quash the remaining two bills of indictment for the reason that the ballots or tickets were not the subject of larceny.
The defendant contends that these two remaining bills of indictment should have been quashed because they are predicated upon the receipt of ballots which were not the subject of larceny. The crimes charged in the bills of indictment are conspiracy to interfere, and actually interfering, with the duties of the election officials of Craven and Wayne Counties. The essential element of the offense charged is the interference with the duties of election officials of Craven and Wayne Counties by receiving official ballots prepared for use in the primary, knowing them to be official primary ballots, and distributing them before the day of election, thereby depriving the local board of elections of the use and lawful possession of these ballots. Such is made a misdemeanor by C.S. § 4185 subsection 3. The bills of indictment are not predicated upon the ballots or tickets having been stolen from the Chairman of the Board of Elections. The fact that they were stolen is not the gravaman of the offense charged. The gravaman of such offense in both bills of indictment is the receiving of official Democratic primary ballots or tickets prepared for use in the primary election "well knowing at the time said ballots or tickets were official Democratic Primary ballots or tickets for use in said Primary, and that he had no legal right to them, and due to be in the possession of the County Board of Elections of Craven County, *** and that said ballots or tickets had been wrongfully removed from the custody and possession of the County Board of Elections."
The assignment as error of the denial of the motion to quash the bills of indictment for the reason that the ballots or tickets therein mentioned were not the subjects of larceny cannot be sustained.
The defendant further contends that the bill of indictment charging interference with election officials should have been quashed for the reason that it does not charge the manner in which the election officials were interfered with, hindered or delayed in the performance of their official duties. This bill of indictment charges a violation of the Corrupt Practice Act, C.S. § 4185, subsection 3. This statute makes it unlawful for any person to "*** interfere in any manner with the performance of any duty imposed by law upon any election officer or member of any election or canvassing board." Among other things charged is the act of receiving a lot of official ballots, knowing them to be official ballots "and that he had no legal right to them, and due to be in the possession of the County Board of Elections." This is a specific charge of an interference with the duties of election officials imposed by C.S. §§ 6020, 6028 and 6037. All of these statutes provide that the official ballots are to be printed and delivered to and kept in the possession of the County Board of Elections until delivered to the local officials. The charge of the receipt by the defendant of such official ballots, knowing that he had no legal right to them, amounts to a charge of interference with the duty of the County Board of Elections to safely keep the ballots until time for delivery to the registrars.
We are of the opinion that the provisions of C.S. § 4623 have been met, and that the contention of the defendant that the motion to quash the bill of indictment should have been sustained because it failed to charge the manner in which the election officials were interfered with is untenable.
It is further contended that the bill of indictment charging conspiracy should have been quashed for the reason that it does not name the co-conspirator or conspirators. The question here presented has been definitely answered against the appellant by this Court. State v. Lewis, 142 N.C. 626, 55 S.E. 600, 7 L.R.A.,N. S., 669, 9 Ann. Cas. 604.
The defendant, under proper exceptive assignments of error, presents the contention that his motion to dismiss the action lodged when the State had produced its evidence and rested its case and renewed after all the evidence in the case was concluded (C.S. § 4643) should have been sustained.
As to the charge of conspiracy to interfere with the primary election officials there is sufficient evidence to establish the defendant's participation in such a conspiracy, and this...
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