Tackett v. Commonwealth

• Citation: 146 S.W.2d 937,285 Ky. 83
• Parties: TACKETT v. COMMONWEALTH.
• Decision Date: 22 October 1940
• Court: Court of Appeals of Kentucky

146 S.W.2d 937

285 Ky. 83

TACKETT v. COMMONWEALTH.

Court of Appeals of Kentucky

October 22, 1940

Rehearing Denied Feb. 11, 1941.

Appeal from Circuit Court, Letcher County; R. Monroe Fields, Judge.

W. H Tackett was convicted of forgery, and he appeals.

Affirmed.

Astor Hogg, Harry L. Moore, and Emmett G. Fields, all of Whitesburg, for appellant.

Hubert Meredith, Atty. Gen., and H. Appleton Federa, Asst. Atty Gen., for appellee.

CAMMACK Justice.

The appellant, W. H. Tackett, and M. D. Bates, Charlie Kiser and W. M. Russell, deceased, were election officers in the Kona voting precinct in Letcher county for the primary election held August 6, 1939. Tackett, Bates and Kiser were indicted for forgery under section 1581 of the statutes at the October, 1939, term of the Letcher circuit court. Demurrers to those indictments were sustained. A new indictment was returned on April 6, 1940. The case was set for trial on April 10th. On that day the accused parties asked for a continuance of the case until the next term. It was continued until April 19th. The parties having asked for separate trials, Tackett was tried on that day. He was found guilty and his punishment fixed at three years in the State Reformatory. He is appealing.

The grounds urged for reversal are: (1) The demurrer to the indictment should have been sustained; (2) the court should have granted a continuance of the case; (3) Tackett was entitled to a peremptory instruction; (4) the swearing of the jury should have been set aside and the case continued; and (5) the verdict is flagrantly and palpably against the evidence.

Section 1581 of the statutes provides: "Any officer or other person who shall wilfully alter, obliterate, or wilfully secrete, suppress or destroy the certified poll book, return or certificate of an election, wilfully and unlawfully alter the poll book before it is certified; or any officer who shall make, or aid in making, or authorize the making up of any false or fraudulent poll book, or certificate of an election or election return, shall be deemed guilty of forgery, be confined in the penitentiary from one to five years, forfeit any office he then holds, and be disqualified from ever holding any office. (1892, c. 65, p. 106, Art XIII, § 16.)"

The appellant has raised the question as to whether or not the crime with which he is charged comes within the purview of the statute just quoted, since the present election laws do not provide for a poll book. It is to be noted that the section under consideration was a part of c. 65 of the Acts of 1892. A previous provision of that chapter, Article III, section 26, provided in part: "Any person desiring to vote and legally entitled to vote at such election shall give his name and residence to the clerk holding the ballots, who shall write the same upon the main stub of the ticket in the blank places provided therefor. Such officer shall then mark upon the secondary stub the elector's registered number in all precincts in which a registration law is in force and in all other precincts the elector's full name, and the stub-book for this purpose shall take the place of a poll-book." See Section 1471 of the statutes. It can be seen from the foregoing that the stub book was to take the place of the poll book. Clearly the alleged crime comes within the scope of section 1581. See Commonwealth v. Duff, 87 Ky. 586, 9 S.W. 816, 10 Ky.Law Rep. 617.

It is the contention of the appellant that the accusatory part of the indictment charges the officers with forgery, while the descriptive part charges them with conspiring, confederating banding themselves together and agreeing with each other to make up a false and fraudulent poll book. An examination of section 1581 reveals that an officer who makes, or aids in making, or authorizes the making of any false or fraudulent poll book, shall be deemed guilty of forgery. A careful examination of the indictment leaves no question as to the crime with which the officers were charged. It first charges them with the "crime of forgery, committed in manner and form as follows." It then sets forth that the parties "unlawfully, wilfully and feloniously conspired, confederated, banded themselves together and agreed with each other to make up a false and fraudulent poll book" to be used in the Republican primary, and "to that end to commit the forgeries hereinafter set our. ***" It then charges that some one or more of the accused, pursuant to the conspiracy, confederation, banding together and agreement, forged and wrote the names of certain person on the stubs of official ballots, which persons neither voted nor offered to vote at said election. Lastly it charges that the accused were the duly appointed and qualified...