State v. Carr

• Decision Date: 27 January 1940
• Docket Number: 34253.
• Citation: 151 Kan. 36,98 P.2d 393
• Parties: STATE v. CARR.
• Court: Kansas Supreme Court

98 P.2d 393

151 Kan. 36

STATE v. CARR.

No. 34253.

Supreme Court of Kansas

January 27, 1940

Syllabus by the Court.

A person to be charged under the latter part of the statute dealing with officers receiving illegal votes or hindering an election, and providing a penalty, need not be a person charged with holding the election.Gen.St.1935, 21-818.

If a statute is unconstitutional, an accusation under it is not good.

Generally a criminal statute which forbids the doing of an act in terms so vague that men of common intelligence must guess at its meaning and differ as to its application, is not good.

The depositing of false and fraudulent ballots and the commission of acts and conduct which interfered with the freedom and purity of elections, was punishable as a crime at common law.

Though there are no common-law offenses in Kansas and there can be no conviction except for offenses defined by statute, the certainty of many of the sections of the Crimes Act defining offenses depends in part on the fact that the offense was known to the common law and that specification of detail is unnecessary.

A statute is not necessarily void for uncertainty because in creating a crime it does not define the offense, since, if the offense is known to common law, the common-law definition may be adopted, even in jurisdictions in which there are no common-law crimes.

In enacting statute dealing with officers receiving illegal votes or hindering an election, and providing a penalty, the legislature intended to denounce the commission of any act done with intent to hinder, prevent, or defeat a fair expression of the popular will and to make such an act an offense.Gen. St.1935, 21-818.

The statute dealing with officers receiving illegal votes or hindering an election, and providing a penalty, does not, on ground that it is so vague as to what it forbids, violate the Fifth Amendment.Gen.St.1935, 21-818;U.S.C.A.Const. Amend 5.

The statute dealing with officers receiving illegal votes or hindering an election, and providing a penalty, does not, on ground that it is so vague as to what it forbids, violate the Fourteenth Amendment.Gen.St.1935, 21-818;U.S.C.A.Const Amend. 14.

The statute dealing with officers receiving illegal votes or hindering an election, and providing a penalty, does not, on ground that it is so vague as to what it forbids, violate the provision of the stateconstitution that trial by jury shall be inviolate.Gen.St.1935, 21-818;Const.Bill of Rights, § 5.

The statute dealing with officers receiving illegal votes or hindering an election, and providing a penalty, does not violate that section of the Bill of Rights of the State Constitution dealing with the trial and defense of an accused.Gen.St.1935, 21-818;Const.Bill of Rights, § 10.

In prosecution under statute dealing with officers receiving illegal votes or hindering an election, and providing a penalty, ballots were not rendered inadmissible because they would not have been admissible in an election contest for the reason that when they were taken by county attorney they were not in same condition as when received by county clerk immediately after election.Gen.St.1935, 21-818.

Evidence sustained conviction under statute penalizing officers receiving illegal votes or hindering an election.Gen.St.1935, 21-818.

Where record contained no reference to any part of allegedly erroneous oral instruction to jury, the contention that the instruction was erroneous could not be considered.

In prosecution under statute penalizing officers receiving illegal votes or hindering an election, instruction that one who counsels, aids, or abets another in the commission of a criminal offense may be charged, tried, and convicted as though he had committed the offense alone, was proper.Gen St.1935, 21-818, 62-1016.

It is indispensable in instructions that the trial court state the essential elements of an offense charged, though the exact language of the statute need not be used.

Where an offense charged may be committed by two different means, and as several acts connected with and forming part of a general offense may be stated in a single count, its commission by both means may be charged in one count of the information, and proof of either will sustain the allegation.

Instructions are to be considered in their entirety, and there is no reversible error where the instructions as a whole are correct, though parts standing alone are improper.

Where uncontradicted testimony was that defendant proposed to others that they procure, mark, and substitute ballots for township offices, that he procured the ballots, and that they were marked, clipped, and deposited in a box in pursuance of his proposal, and there was circumstantial evidence that ballot boxes were interchanged, and expert testimony led to conclusion that entire plan was carried out, state, in order to convict defendant for violation of statute, was not required to show that defendant personally did each of the several acts, though he was tried alone.Gen.St.1935, 21-818.

Where guilty verdict was returned November 4, motion for new trial was filed November 9, motion came on for hearing on December 3, and hearing was continued to December 6, trial court did not err in refusing further continuance to defendant in order to subp na certain jurors.

1.The general rule is that a criminal statute which forbids the doing of an act in terms so vague that men of common intelligence must guess at its meaning and differ as to its application is not good.

2."A statute is not necessarily void for uncertainty because in creating a crime it does not define the offense, for if the offense is known to the common law, the common-law definition may be adopted, even in jurisdictions in which there are no common-law crimes."14 Am.Jur. 773.

3.The depositing of false and fraudulent ballots, and the commission of acts and conduct which interfered with the freedom and purity of elections, was punishable as a crime at common law.

4.That part of G.S.1935, 21-818, providing that "any person who shall knowingly and wilfully commit any irregularity or fraud whatever with the intent to hinder, prevent or defeat a fair expression of the popular will" at any election "shall be deemed guilty of a felony" does not contravene either the fifth or fourteenth amendments to the Constitution of the United States, U.S.C.A., or the fifth or tenth sections of the Bill of Rights of the Constitution of Kansas, for the reason that it forbids the doing of any act in terms so vague that men of common intelligence must guess at its meaning and differ as to its application, nor for the reason it is not sufficiently explicit to inform those subject to it what conduct on their part will render them liable to its penalties.

5.In its instructions to the jury, it is indispensable the trial court state the essential elements of the offense charged, although it is no objection that the exact language of the statute is not used.

6.In a criminal prosecution the instructions are to be considered in their entirety; an inaccurate expression in one instruction may be cured by accurate statements in others, and there is no reversible error where the instructions as a whole are correct although parts standing alone are improper.

7.Where an offense charged may be committed by two different means, and as several acts connected with and forming part of a general offense may be stated in a single count, its commission by both means may be charged in one count of the information, and proof of either will sustain the allegation.State v. Hewes,60 Kan. 765, syl. par. 1, 57 P. 959.

8.The record in a criminal prosecution examined, and held

(a)The statute under which the prosecution was had is constitutional;

(b)The trial court did not err in its rulings on the admission of evidence nor on the qualification of a witness;

(c) The verdict of the jury is sustained by the evidence;

(d)The trial court did not err in its instructions to the jury, nor

(e) in its rulings on defendant's motion for a new trial.

Appeal from District Court, Wyandotte County, Division No. 1;E. L. Fischer, Judge.

John Carr was convicted of violating the statute dealing with officers receiving illegal votes or hindering an election, and providing a penalty, and he appeals.

Judgment affirmed.

Russell C. Hardy, of Kansas City, for appellant.

Jay S. Parker, Atty. Gen., A. B. Mitchell, Asst. Atty. Gen., and Arthur J. Stanley, Jr., Co. Atty., and T. P. Palmer, Asst. Co. Atty., both of Kansas City, for appellee.

THIELE Justice.

Defendant was convicted of a violation of the crimes act and appeals, specifying as errors the matters hereafter discussed.

The prosecution was had under the italicized part of G.S.1935, 21-818: "Any person or persons whomsoever who may be charged with holding any election in this state, authorized by law, who shall willfully and knowingly receive any vote offered by any person who is not a resident in good faith of this state at the time of offering to vote, or who shall have voted previously at the same election, or any person who shall knowingly and willfully commit any irregularity or fraud whatever with the intent to hinder, prevent or defeat a fair expression of the popular will, shall be deemed guilty of felony, and upon conviction thereof shall be punished by imprisonment and hard labor for a term not less than one year nor more than three years."

The first information filed against the defendant and four other persons charged an offense in statutory language.It need not be noticed further, for an amended information was filed which read as follows: "Arthur J. Stanley, Jr., as County Attorney in and for the County of...