State v. Welch

• Decision Date: 07 August 1874
• Citation: 21 Minn. 22
• Parties: STATE OF MINNESOTA <I>vs.</I> MICHAEL WELCH.
• Court: Minnesota Supreme Court

Page 22

21 Minn. 22

STATE OF MINNESOTAvs.

MICHAEL WELCH.

Supreme Court of Minnesota.

August 7, 1874.

The defendant was tried in the district court for Washington county, Crosby, J., presiding, upon the following indictment:

"Michael Welch is accused by the grand jury of the county of Washington, in the State of Minnesota, by this indictment, and upon their oaths, of the crime of voting more than once at the same election, committed as follows:

"That the city of Stillwater is a municipal corporation, within the county of Washington in the State of Minnesota, organized and acting under and by virtue of an act of the legislature of the State of Minnesota, entitled "An act to reduce the law incorporating the city of Stillwater in the county of Washington and State of Minnesota, and the several acts amendatory thereof, into one act, and to amend the same," approved March 3d, A. D. 1870, and the acts

amendatory thereof. That on the 1st day of April, A. D. 1873, the municipal election of said city of Stillwater was then and there in said city being held, under and by virtue of the said act of the legislature above mentioned, and the acts amendatory thereof, and in accordance with law and the statutes in such cases made and provided, for the purpose of electing the officers of said municipal corporation, the said city of Stillwater, as provided and required by said act of the legislature of the State of Minnesota, and the acts amendatory thereof.

"That said Michael Welch did then and there, on said 1st day of April, A. D. 1873, in said city of Stillwater, in said county of Washington, at said election, vote in said city of Stillwater in the first ward thereof, said Michael Welch being then and there a resident and legal voter in said ward in said city; and said Michael Welch did then and there, on said first day of April, A. D. 1873, in said city of Stillwater in said county of Washington, after the casting by him of the vote above mentioned, wrongfully, wilfully, unlawfully and feloniously vote a second time at said election in said city of Stillwater, said vote being cast by the said Michael Welch in the second ward of said city of Stillwater: both of said votes being then and there by the said Michael Welch voted at the same election, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Minnesota."

At the trial, it appeared that the prisoner was a resident of the first ward in the city, and voted in that ward in the forenoon, and in the afternoon in the second ward. The prisoner was convicted, a motion in arrest of judgment and a motion for a new trial were denied, and he was sentenced to hard labor in the state prison for the term of six months. The objections made to the indictment, and the exceptions taken at the trial, are stated in the opinion.

James N. Castle, for appellant.

Geo. P. Wilson, Attorney General, for the State.

YOUNG, J.

1. The indictment charges the defendant with the crime of voting more than once at the general municipal election of the city of Stillwater, held April 1, 1873 — the defendant's first vote being cast in the first ward, of which he was a resident, and the second, in the second ward.

By the charter of the city, (Sp. Laws, 1870, p. 83, § 1,) it is provided that the annual election of municipal officers shall be held at such place within the city as the common council shall designate. By the act of March 4, 1873, entitled "An act to amend the charter of the city of Stillwater," the election is to be held at such place in each ward as the common council shall designate. Sp. Laws, 1873, p. 92, § 2. The charter is declared to be a public act, (Sp. Laws, 1870, p. 107, § 14,) and as the act of 1873 is, by its terms, amendatory of the charter, this also is a public act. State v. Bergen, 34 N. J. (Law), 438. The indictment, therefore, charges, with all, if not more than all, the precision necessary, that the election was lawfully held in the two wards in which the defendant is accused of voting. State v. Marshall, 45 N. H. 281; State v. Boynton, 56 Me. 512; State v. Douglas, 7 Iowa, 413.

It is urged that it does not appear that the act of 1873 ever took effect, for it is not shown to have been published. But this amendatory act expressly provides, (p. 102, § 33), that it "shall take effect and be in force from and after its passage," and being of later date, it is pro tanto a repeal of Gen. Stat. ch. 4, § 2, which enacts that "no general law shall take effect until published."

The election at which the defendant's offence is charged to have been committed, was that designated in the charter as "the general city election." It is contended that the two votes cast by the defendant, being cast in different wards, were cast not at the same, but at different, elections. But we are clearly of opinion that the general city election is but one election, although held at the same time in three different places within the city, just as the general state election is one general election, and not as many general state elections as there are election districts in the state.

The indictment need not, (as it does not,) show that the defendant's second vote was cast for the officers, (mayor, treasurer, and city justice,) who were to be voted for at large and in all the wards, and not merely for the aldermen who were to be chosen in the second ward alone. It is the voting more than once at the same election, and not the voting more than once for the same officers, which the statute prohibits and punishes; and it makes no difference whether the same or different officers or candidates are voted for on the two occasions. State v. Minnick, 15 Iowa, 125; Steinwehr v. State, 5 Sneed, 586.

The indictment, therefore, sufficiently charges the defendant with the offence of voting more than once at the same election, which is made a felony by § 58, ch. 1, Gen. Stat.; and it does not change the character of the crime charged, that, in the commission of this felony, the defendant also committed a misdemeanor by casting his second vote in an election district in which he did not actually reside — an offence made punishable by § 57 of the same chapter. The motion in arrest of judgment was therefore properly denied.

2. At the trial, the prisoner testified, "I drank considerably during the day (of the election). I don't recollect voting at any of the polls that day. I might have voted three times and not known it. I must have been very drunk. Don't recollect what occurred after morning." Other evidence was introduced, tending to show that the defendant was much intoxicated at the time of the second voting. Evidence was offered, and excluded as immaterial, tending to show that defendant was a lumberman, and on the election day had just returned from a six months' absence in the woods; that he did not know that more than one polling place had been provided; that he did not know who were the candidates to be voted for, was not a partisan, and took no part in the election, except by voting. The exceptions taken to the exclusion of this evidence, and to the refusal of the court to give the 3d, 6th and 7th instructions asked by the defendant, present the same question under two aspects. The defendant's intoxication is relied on as a defence, first, as rendering the defendant...