United States v. Brewer

• Decision Date: 23 March 1891
• Citation: 11 S.Ct. 538,35 L.Ed. 190,139 U.S. 278
• Parties: UNITED STATES v. BREWER et al
• Court: U.S. Supreme Court

139 U.S. 278

11 S.Ct. 538

35 L.Ed. 190

UNITED STATES v. BREWER et al.

March 23, 1891.

Atty. Gen. Miller, for the United States.

Julius A. Taylor, for defendant.

BLATCHFORD, J.

This is an indictment against three persons, found in the circuit court of the United States for the western district of Tennessee, under section 5515 of the Revised Statutes. That section, with its punctuation, as published in the second edition of the Revised Statutes, is as follows: 'Sec. 5515. Every officer of an election at which any representative or delegate in congress is voted for, whether such officer of election be appointed or created by or under any law or authority of the United States, or by or under any state, territorial, district, or municipal law or authority, who negleets or refuses to perform any duty in regard to such election required of him by any law of the United States, or of any state or territory thereof; or who violates any duty so imposed; or who knowingly does any acts thereby unauthorized, with intent to affect any such election, or the result her eof; or who fraudulently makes any false certificate of the result of such election in regared to such representative or delegate; or who withholds, conceals, or destroys any certificate of record so required by law respecting the election of any such representative or delegate; or who neglects or refuses to make and return such certificate as required by law; or who aids, counsels, procures, or advises any voter, person, or officer to do any act by this or any of the preceding sections made a crime, or to omit to do any duty the omission of which is by this or any of such sections made a crime, or attempts, to do so, shall be punished as prescribed in section fifty-five hundred and eleven.' It purports to be a reenactment of section 22 of the act of May 31, 1870, c. 114, (16 St. 145,) which, with its punctuation, as published, was as follows: 'Sec. 22. And be it further enacted, that any officer of any election at which any representative or delegate in the congress of the United States shall be voted for, whether such officer of election be appointed or created by or under any law or authority of the United States, or by or under any state, territorial, district, or municipal law or authority, who shall neglect or refuse to perform any duty in regard to such election required of him by any law of the United States, or of any state or territory thereof; or violate any duty so imposed, or knowingly do any act thereby unauthorized, with intent to affect any such election, or the result thereof; or fraudulently make any false certificate of the result of such election in regard to such representative or delegate; or withhold, conceal, or destroy any certificate of record so required by law respecting, concerning, or pertaining to the election of any such representative or delegate; or neglect or refuse to make and return the same as so required by law; or aid, counsel, procure, or advise any voter, person, or officer to do any act by this or any of the preceding sections made a crime; or to omit to do any duty the omission of which is by this or any of said sections made a crime, or attempt to do so, shall be deemed guilty of a crime and shall be liable to prosecution and punishment therefor, as provided in the nineteenth section of this act for persons guilty of any of the crimes therein specified.'

The indictmnent originally contained four counts. The first court alleged that on the 6th of November, 1888, in the county of Shelby, Tenn., at the Third ward of Memphis an election for a representative in the congress of the United States for the tenth congressional district of Tennessee was held, at the south-east corner of Gayoso and Second streets, Memphis, in the fourteenth civil district of that county; that at that election two of the defendants were the judges thereof, and the other was the returning officer thereof, holding the election, 'at which election such representative in congress was then and there voted for; that it then and there thereby became and was the duty (among others) of the said judges and returning officer of said election, when the same was finished and after the polls were closed, then and there at the said place of holding the same, and at the place where the ballots were cast at said election, to open the ballot-box then and there used at said election, and then and there containing the ballots cast at said election, in the presence of such of the electors at said election as might choose to attend, and to read aloud the names of the persons which should appear in each ballot in the said ballot-box so cast at said election;' and that the defendants did then and there 'unlawfully neglect to perform their said duty in regard to the said election, as required of them by law, by then and there, and after the said election was finished, and after the polls at said election were closed, and before the counting of the votes cast at said election, failing to so open the said ballot-box at the place where the said election washel d, and to so then and there at the place last aforesaid read aloud the names of the persons which should then and there appear in each ballot in the said ballot-box, the same being the duly designated place of holding the said election.' The second count, with the same preliminary allegations as in the first count, averred that the defendants unlawfully refused to perform their said duty, by failing to do what it was alleged in the first count they failed to do, 'and by then and there, and after the said election was finished and the polls thereof were closed, unlawfully removing the said ballot-box from the place where the said election was held, and before the counting of the votes cast at the said election, the same being the duly-designated place of holding the said election.'

The third count, after making the same preliminary allegations, averred that the defendants did unlawfully violate their said duty by failing to do what it was alleged in the first and second counts they failed to do, and by unlawfully removing the ballot-box, as averred in the second count. The fourth count averred that the defendants did 'unlawfully and knowingly, and with intent to affect the said election and the result thereof, and after the said election was finished, and after the polls at said election were closed, and before the counting of the votes cast at said election, remove the ballot-box used at said election, and then and there containing the ballots cast at said election, from the place aforesaid where the said election was held, the same being the duly-designated place of holding the said election, such removal of the said ballot-box being unauthorized by law, and contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the United States of America.' The indictment is based on the view that certain sections of the statutes of Tennessee must be so construed as to require that the ballot-box shall not be removed from the place where the election was held, before the votes cast are counted, and that they shall be counted at the place where the election was held, immediately after the closing of the polls.

The defendants being brought into court, a nolle prosequi as to the fourth count was entered, on motion of the district attorney. The defendants demurred to the other three counts, setting forth the following grounds of demurrer: '(1) Because the matters and things stated and set...