State v. Reed

• Decision Date: 13 October 1908
• Citation: 52 Or. 377,97 P. 627
• Parties: STATE v. REED.
• Court: Oregon Supreme Court

97 P. 627

52 Or. 377

STATE v. REED.

Supreme Court of Oregon

October 13, 1908

Appeal from Circuit Court, Multnomah County; Arthur L. Frazer Judge.

J.W Reed was convicted of violating the election laws, and he appeals. Affirmed.

Wm. T. Muir and Ralph E. Moody, for appellant.

A.M Crawford, Atty. Gen., and Geo. J. Cameron, Dist. Atty., for the State.

KING C.

J.W. Reed was indicted on a charge of having persuaded Harry Young, June 3, 1906, to remove to precinct No. 37, of Multnomah county, in which precinct he was not then an inhabitant, for the purpose of his voting therein at a general election, to be held throughout the state of Oregon on the following day. A trial was had in December of the same year, resulting in defendant's conviction and sentence; hence this appeal.

The section of the Code under which Reed was indicted became a law in 1870 (Laws 1870, p. 22, § 1), and is as follows: "Any person who shall by promise of favor or reward, or otherwise, induce or persuade any person to come into this state, or into any county or precinct within this state, for the purpose and with the intent that such person shall, by so changing his habitation, vote at any general election which may hereafter be held in this state, at any place where such voter or person is not a bona fide resident, shall be deemed guilty of a felony, and upon conviction thereof shall be punished as hereinafter provided." B. & C. Comp. § 1907. Subsequently there was passed what is known as the "Local Option Law," recorded in Sess.Laws 1905, p. 44, section 5 of which reads: "The provisions of section 1907 *** of Bellinger and Cotton's Annotated Codes and Statutes of Oregon shall apply to and are hereby made applicable to all elections held under the provisions of this act." The act further provides that after the year 1904 all elections held under the provisions thereof shall be held on the first Monday in June of any year, and "shall be held at the regular voting place or places within the proposed limits and by the judges and clerks of election appointed and qualified under the general election laws of the state, ***" making the election laws governing general elections, so far as practicable, applicable thereto.

At the trial the state proved, among other things, that defendant induced Young to remove to precinct No. 37, of which he was not a bona fide resident, the night before election, paying his expenses, for the purpose of voting on the liquor question at the only election held on that day throughout the state, and that he voted accordingly, not on the contemplated question alone, but on the state, district, county, and precinct offices as well. This was testified to by Harry Young, as well as by defendant when called in his own behalf. At the close of the taking of the testimony on behalf of the state defendant moved the court to instruct the jury to direct a verdict in his favor, alleging, in support thereof, a variance between the proof and crime charged, which motion was denied. This denial, inter alia, is assigned as error. In support of this assignment it is strongly urged that the purpose of Reed's solicitation for Young's change of locality was to vote at the special election, called on that day for a special purpose; and, although to be held at the same time and place of the general election, the proof to such effect is at variance with the charges made in the indictment, for which reason it is maintained that all evidence adduced, tending to show that a special election was called at that time and place, and that Young was persuaded by defendant to go into the precinct for the purpose indicated, and that he did vote thereat, should have been excluded, and a verdict directed for defendant. It is admitted that the purpose of thus inducing Young to remove into the precinct was to vote on the question as to whether local option should prevail in that precinct, or, to use defendant's language, was that he "would vote to keep precinct No. 37 wet." Now conceding, as contended, that the election called for the purpose of voting on this question was special ( Marsden v. Harlocker, 48 Or. 90, 85 P. 328, 120 Am.St.Rep. 786), the only bearing this feature had on the case was that, when it was shown that the various steps required by the act were duly taken, it established that the question was thereby entitled to be placed upon the ballot to be voted upon at the general election to be held on that day, for which purpose the testimony complained of was admissible.

Under the provisions of the local option act (Sess.Laws 1905, p. 43, § 3), an election can be held on the first Monday of June of any year, while the general elections occur biennially on the first Monday of that month. When, therefore, a special election is called to vote upon the liquor question, during a year in which the general election may be held, and all the steps essential to the placing of the question to be submitted upon the ballot are duly taken, and the proposition submitted is placed upon the ballot, the election at which such ballot may be used and vote cast is the general election held by the various officers provided for under the general statutes on the subject; while if held during any other year, it has no reference thereto, and is special in its fullest sense. The provision contained in section 5 of the local option act, making section 1907 of the Code applicable to that act, was intended to preclude one, charged with persuading voters to remove into another precinct, for the purpose of voting at such election, from defending, on the ground, as here asserted, that it was special, and not general, without which such defense would have been available if such special election were held during any year other than that in which a general election may be held. But so far as applicable to an election held, as in this case, on the same date as the general election, it is merely declaratory of what the law would have been without this provision inserted therein. The two elections, in this instance, were not held or conducted separately, and no method is provided whereby a person may vote at one and not at the other, any more than for a person to vote for one candidate and not for the whole ticket. Such is possible, it is true, but there is no method provided whereby it can legally be determined how the person may vote; and it is not to be presumed that, when a voter changes his precinct to vote in some special locality, although on account of some special question, he will vote on no other question, nor for any of the state, district, or county candidates, when the particular question to be submitted is upon the same ballot.

Although defendant's primary object in persuading Young to make the change, as well as Young's main purpose, was to vote on prohibition, it was with full knowledge, by law implied, that, during that year, only by voting at such general election could he vote on the question in mind. When he thus exercised his electoral franchise, regardless of whether he voted upon but one question or upon many, or for the entire ticket, he was precluded from voting at any other polling place in the state or county at that election, thus bringing the acts charged, established, and admitted clearly within the purview of section 1907 of the Code. It is obvious, therefore, that when the statute made it an offense to persuade a voter to change his habitation for the purpose of voting "at any general election," it was intended to include voting for any purpose at that time and at such election. The purpose of the statute is to prevent colonization of voters in the state, or in any county or precinct therein; hence the inducing of the voter to remove into any precinct of which he was not a resident, with the intention of voting there by use of the ballot provided for and in use at the general election, constitutes the gravamen of the offense. It was accordingly necessary, in the case under consideration, in order to justify the verdict rendered, only to show, beyond a reasonable doubt, defendant's intent to have the voter make the change of precincts for the purpose of voting at the election on June 4th, and that such change was made; and such was the effect of the proof submitted by the state and of the facts admitted by the defense. It accordingly follows that the indictment charges sufficient facts, which are sustained by ample proof, to constitute the crime charged, under section 1907 of the statute.

The defense further insists that when Young removed to precinct No. 37 before election, having lived within the state the required time, he became a resident of that precinct, and accordingly a legal voter therein, and was entitled to vote at such election, and that if not entitled thereby to vote, he was so advised by good lawyers, and intended no crime, which he was not permitted to prove, by reason of which error is alleged. The question whether Young, by going into the precinct and remaining overnight, was qualified to vote there, is not involved here. Importing voters is one crime, and illegal voting is another. Defendant was indicted on the former charge, and, as before stated, the gravamen of the offense consisted in changing from his precinct to another, of which he was not an inhabitant, with the intention of voting therein; and when proved, the crime charged was established, whether the vote cast by reason of the change was legal or not. Nor was it necessary that he should have voted at all, the question being, was he persuaded by defendant to, and did he, go there with that intention, and was that a precinct in which he was...