State v. Abernethy, 219.

• Citation: 220 N.C. 226,17 S.E.2d 25
• Decision Date: 29 October 1941
• Docket Number: No. 219.,219.
• Court: United States State Supreme Court of North Carolina
• Parties: STATE. v. ABERNETHY.

220 N.C. 226
17 S.E.2d 25

STATE.
v.
ABERNETHY.

No. 219.

Supreme Court of North Carolina.

Oct 29, 1941.

[17 S.E.2d 26]

Appeal from Superior Court, Wayne County; Q. K. Nimocks, Jr., Judge.

Charles L. Abernathy, Jr., was convicted of conspiracy to interfere, and of actually interfering, with the duties of county and precinct primary election officials by receiving official ballots prepared for use in a primary election, 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 the ballots, and he appeals.

No error.

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.

SCHENCK, Justice.

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...