State v. Shanks

• Decision Date: 17 October 1912
• Docket Number: No. 22,168.,22,168.
• Citation: 178 Ind. 330,99 N.E. 481
• Parties: STATE v. SHANKS.
• Court: Indiana Supreme Court

178 Ind. 330

99 N.E. 481

STATE

v.SHANKS.

No. 22,168.

Supreme Court of Indiana.

Oct. 17, 1912.

Appeal from Circuit Court, Fountain County; I. E. Schoonover, Judge.

Moses Shanks was charged by affidavit with crime, and from an order sustaining a motion to quash the affidavit the State appeals. Reversed, with instructions.

Thomas M. Honan, Atty. Gen., and Claude B. Philpott, Pros. Atty., O. B. Ratcliff, and V. E. Livengood, all of Covington, for the State. O. P. Lewis, of Covington, for appellee.

SPENCER, J.

Appellee was charged by affidavit with violating the criminal laws providing penalties against corrupt voting. The court sustained a motion to quash the affidavit, and discharged appellee.

Errors assigned and not waived are sustaining appellee's motion to quash the affidavit charging unlawfully and knowingly voting in a precinct and ward in which appellee did not reside. The affidavit was quashed on the grounds that the statute upon which the prosecution was based restricted the offense charged to voting without legal qualifications in general elections, and not to local option or special elections, held under Acts 1911, p. 363, commonly known as the “Proctor Law.”

Appellant has conceded that the first count of the affidavit is bad; hence we will only consider the second count which reads: “Orlando S. Douglass, being duly sworn, upon his oath, says that one Moses Shanks, of Fountain county, in the state of Indiana, as affiant is informed and verily believes, in the first day of March, 1911, at and within Fountain county, in the state of Indiana, in the city of Covington, in said county, at a special election duly authorized by law then and there held in said city to vote on the question, ‘Shall the sale of intoxicating liquors as a beverage be prohibited in said city?’ did then and there unlawfully and knowingly vote and offer to vote at such special election at and in precinct No. 3 and in ward No. 3 in said city; whereas said Moses Shanks was not then and there a resident of said ward No. 3, or said precinct No. 3, in said city, but at such time resided in said county, outside of the corporate limits of said city, as the said Moses Shanks then and there well knew, contrary to the forms of the statutes in such cases made and provided, and against the peace and dignity of the state of Indiana.” The court sustained appellee's contention that there is no law at the present time to punish one for voting in other wards or precincts than the one in which they reside in local option elections held under Acts 1911, p. 363, approved March 4, 1911.

Section 2562, Burns' Statutes 1908, reads: “Whoever knowingly votes or offers to vote in any precinct or ward except the one in which he resides, shall be fined not more than five hundred dollars nor less than ten dollars, imprisoned in the county jail not more than one year or less than one month, and disfranchised and rendered incapable of holding any office of trust or profit for any determinate period.” The Constitution of Indiana (Burns' Statutes, 1908, § 84) specifies the following qualifications for legal voters: “In all elections not otherwise provided for by this Constitution, every male citizen of the United States, of the age of twenty-one years, and upward, who shall have resided in the state during the six months, and in the township sixty days, and in the ward or precinct thirty days, immediately preceding such election, and every male of foreign birth, of the age of twenty-one years and upwards, who shall have resided in the United States one year and shall have resided in this state during the six months, and in the township sixty days, and in the ward or precinct thirty days, immediately preceding such election, and shall have declared his intention to become a citizen of the United States, conformably to the laws of the United States on the subject of naturalization, shall be entitled to vote in the township or precinct where he may reside, if he shall have been duly registered according to law.” The Constitution further provides that “all elections shall be free and equal.” Burns' Statutes 1908, § 83.

[1] The Constitution of the state is the supreme law, and all acts passed by the Legislature must be in conformity thereto and in harmony therewith. “The principle is elementary that, when the Constitution defines the qualification of voters, that qualification cannot be added to or changed by legislative enactments.” Morris v. Powell, 125 Ind. 281, 25 N. E. 221, 9 L....