United States v. Badinelli

• Decision Date: 20 December 1888
• Citation: 37 F. 138
• Parties: UNITED STATES v. BADINELLI et al.
• Court: U.S. District Court — Western District of Tennessee

37 F. 138

UNITED STATES v. BADINELLI et al.

United States Circuit Court, W.D. Tennessee.

December 20, 1888

At the congressional elections held at the Fourth ward in the city of Memphis on the 6th day of November, 1888, the defendants were the election officers charged with the duty of holding the election at that place. When the polls had closed they carried the ballot-box, accompanied by the clerks and federal supervisors, through the saloon in front of which the polls were held into the back yard, up a flight of steps, and through a hallway into a private room, where the counting was fairly done, according to the testimony of the federal supervisor for the republican party, the only witness examined on that point, and who helped to do the counting. The witness J. E. Bigelow, who was the republican candidate for state senator, being present at the closing of the polls and desiring to witness the count, followed the box through the saloon and into the back room of the saloon, where he was told by two of the defendants that he could not go with them to the place where the counting was to be done. He protested that he was an elector and a candidate, that he had a right to be present at the counting, and that he proposed to exercise his legal right in that regard. He was told to go back, but persisted in following the defendants and the box into the back yard and up the flight of steps; but at the head of the stairway he was met by two policemen, who told him he could go no further; that their orders were to enforce obedience to the instructions of the election officers, and they had been directed to exclude him from following them into the room where the counting was to be done. He departed and was not present at the count. The federal supervisor, who was examined as a witness, being appealed to by Judge BIGELOW, insisted that Bigelow had the right to be present and demanded of defendants that he should be allowed to exercise that right, but they still refused him admittance to the count. Bigelow did not reside in that ward of the city nor in that civil district of the county, but in another civil district in the country, where he had voted previously to coming to the Fourth ward to watch the election. There was some proof as to the character of the crowd and its conduct, the inclemency of the day, and the details of the surroundings at the time of the exclusion, not necessary to mention here. The defendants were indicted under Revised Statutes, Sec. 5515, for a failure to perform their duty 'to count the ballots cast at such election in the presence of such electors as chose to attend, in that they did willfully and unlawfully refuse to allow one J. E. Bigelow to be present and attend the counting of the ballots cast at said election, the said Bigelow then and there being an elector who chose to be present at said counting of the ballots, and was then and there requesting and demanding of said officers that he be permitted and allowed to attend said counting as such elector, contrary to the form,' etc. The second count of the indictment charges an unlawful denial of the right to be present 'by excluding him from the room in which the counting of said ballots was being made,' contrary, etc. The duty alleged to be violated is that prescribed by the Tennessee Code, Sec. 861, (Mill. & V. Code, Sec. 1068,) as follows:

'When the election is finished, the returning officer and judges shall, in the presence of such of the electors as may choose to attend, open the box, and read aloud the names of the persons which shall appear in each ballot; and the clerks at the same time shall number the ballots, each clerk separately.'

Other provisions of the Tennessee Code, not necessary to be set out more fully, require every one to vote in the civil district or ward in which he resides, except that certain persons, including candidates, may vote anywhere in the city or county where they happen to be on election day. When the district attorney had closed his proof, the defendants moved the court to instruct the jury to find for them upon their plea of not guilty, because the facts showed that the witness Bigelow had voted in his home precinct, and, although a candidate, that he had no right to be present at the counting of the ballots, he not being an 'elector' in the Fourth ward. The defendants did not wish to demur to the evidence because, if the decision upon the questions of law to be argued should be decided against them, they wished to examine witnesses then in attendance. The court declined to adopt that practice in criminal cases, if at all in any case, and required argument as to its propriety; but the district attorney thereupon waived any objection in this case, and agreed that the motion might be considered upon its merits, as if upon demurrer to the evidence, and, if decided adversely to the defendants, that they might then put in their proof notwithstanding; to which arrangement the court assented for the purpose of this case only.

H. W. McCorry, U.S. Dist. Atty., and H. C. Anderson, Asst. U.S. Dist. atty.

Luke E. Wright, W. H. Carroll, Watson & Hirsch, E. F. Adams, and Zack Taylor, for defendants.

HAMMOND J., (after stating the facts as above.)

As was well remarked by one of the learned counsel for the defendants, our election laws constitute, as a whole, a scheme for the regulation of the proceeding intended to secure to the people a free, fair, and honest election, to facilitate the right to vote, and preserve the purity of the ballot-box; and they must, in construing any part of them, be examined as a whole. As arranged in the sections of the Code of 1858 they will be found to be broken up somewhat, and disarranged from their original contexts, and, when restored, their meaning is often made more clear. They are found in chapter 2 of article 6 of that Code pertaining to 'Officers and Elections,' the original basis being chapter 9 of the acts of 1796, passed at the first session of the general assembly of the state, from which the section in controversy here was taken. Code 1858, Secs. 812-887; Thomp. & S. Code, Secs. 812-887; Mill. & V. Code, Secs. 1003-1096. There cannot be the least doubt upon reading them that the intention is to provide for a perfectly open and public counting of the vote of each precinct at the place in that precinct where the election is held. The county court is required to designate such places for each precinct at least six months before the election, and to enter the designations of record. Act 1827, c. 27, Sec. 1; Code 1858, Secs. 837, 837a; Thomp. & S. Code, Sec. 837 et seq.; Mill. & V. Code, Secs. 1041-1043. Then come the provisions for counting the vote and making the returns, with which we have to deal here, among the sections regulating 'the proceedings at the polls,' and after that those sections regulating the 'proceedings after the polls are closed,' which classifications, titles, and subtitles are a part of the original Code itself. From the whole scheme it is apparent that the counting must take place at the polling place, and can be had nowhere else without violating the duties imposed by these laws, and 'in the presence of such of the electors as may choose to attend. ' Code 1858, art. 7, Secs. 846-863a; Id. art 8, Secs. 864-871; Id. art. 9, Secs. 872-887; Thomp. & S. Code, Secs. 846-887; Mill. & V. Code, Secs. 1053-1096.

If therefore, these defendants had been indicted here for removing the ballot-box from the place designated by the county court for holding the election, including the count in the presence of such of the electors as should choose 'to attend,' they would, on the proof as now presented under this proceeding, be guilty under the Revised Statutes of...