State v. Houston

• Decision Date: 18 May 1889
• Citation: 9 S.E. 699,103 N.C. 383
• Parties: STATE v. HOUSTON.
• Court: North Carolina Supreme Court

9 S.E. 699

103 N.C. 383

STATE v. HOUSTON.

Supreme Court of North Carolina

May 18, 1889

Appeal from superior court, Buncombe county; J. H. MERRIMON, Judge.

Indictment of Houston, for perjury in swearing before a registrar, when making application to be registered as a voter, preparatory to the exercise of the electoral franchise, that he was "a duly-qualified voter," when in fact he was not so duly qualified and entitled to be registered; he having been therefore convicted of larceny by the verdict of a jury upon which judgment had been suspended. A motion to quash the indictment was allowed on the ground of its insufficiency in form to warrant a conviction and sentence, and the state appeals.

T. F Davidson, Atty. Gen., for the State.

DAVIS J.

The oath administered is contained in section 2681 of the Code and is in these words: "I, ___, do solemnly swear that I will support the constitution of the United States and the constitution of the state of North Carolina; that I have been a resident of the state of North Carolina for twelve months, and of the county of ___ for ninety days; that I am a duly-qualified elector, and that I have not registered for this election in any other precinct, and that I am an actual and bona fide resident of ___ township; so help me God."

The inquiry that presents itself is as to the meaning and force of the words "a duly-qualified voter," contained in said oath, in the taking of which the perjury is alleged to have been committed; and whether, in their connection, they embrace more than the original conditions, on which depended the right to be admitted to the registry as a competent voter. There is an omission in the form of the oath of some of the essential requisites prescribed in the constitution, such as naturalization of one alien-born, which the term may supply; and thus the oath is confined, as suggested, to those indispensable qualifications set out in the constitution, art. 6, § 1, and does not extend to the loss of the franchise consequent upon the commission of and conviction for crime. This construction is supported by the form of the oath directed to be taken, under section 2684, where a registered voter is challenged. It is made the duty of the judges to explain to the person offering to vote the required qualifications, and to ascertain by examination if he possesses them, and then to administer the oath therein set out, in which, among other specific prerequisites, are the words, "that you are not disqualified from voting by the constitution and laws of this state." In the former, the voter swears to his possessing the qualifications of an elector; in the latter, that he has not lost the right by any provision in the constitution and under the law which takes it from him. The last oath points distinctly, as the first does not, to the disqualification which may arise under the constitution. We are therefore of the opinion that the oath administered to the defendant did not embrace the alleged grounds of disqualification, and that for this reason there was no error in the ruling of his honor in quashing the indictment.

SMITH C.J.

Concurring in the opinion of the court that no false oath has been taken in this case upon the allegations contained in the indictment, I think, and in this my convictions are strong, the ruling may be sustained on the ground, as I understand the record, upon which it was predicated in the court below, and this is that a judgment upon conviction is essential to the deprivation of the electoral franchise. The section of the constitution in question, after enumerating the required qualifications for a voter, proceeds to say: "But no person who, upon conviction or confession in open court, shall be adjudged guilty of felony or any other crime infamous by the laws of this state, and hereafter committed, shall be deemed an elector, unless such person shall be restored to the rights of citizenship in a manner prescribed by law." Now, upon a fair and reasonable interpretation of this highly penal clause, which, besides the punishment inflicted for the crime, affixes the personal disability, can it be extended to a mere verdict establishing guilt, or do these consequences follow the rendition of the judgment, and result from it? The able and efficient attorney general contends that the conviction alone and of itself is sufficient, without further action in the cause, to annex to the person of the elector the specified disqualifications, and withdraws from him, at once, the right, as a voter, to participate in any election thereafter held for the choice of public officers, or for any other purpose affecting the interests of the public. In support of this view are cited and relied on the cases of Com. v. Lockwood, 109 Mass. 325, and State v. Alexander, 76 N.C. 231.

The cases have one feature in common, and refer to the exercise of executive clemency towards the convicted criminal, in misericordia. The case from Massachusetts puts a meaning upon the word "conviction" that confines it to the action of the jury alone. Yet when the results are to reach beyond the punishment proper prescribed for the offense, and work a change in the political status of the offender,--a deprivation of personal rights,--the opinion pauses, and the eminent judge (GRAY) who delivers it uses this qualifying language: "When, indeed, the word 'conviction' is used to describe the effect of the guilt of the accused as judicially proved in one case when pleaded or given in evidence in another, it is sometimes used in a more comprehensive sense, including the judgment of the court upon the verdict or confession of guilt; as, for instance, in speaking of the plea of autrefois convict, or of the effect of guilt judiciously...