Opinion
11-30-1896
STATE v. CONWAY.
A. B. Cooper and Josiah Marvel, for defendant. Atty. Gen. White and P. L. Cooper, Jr., Dep. Atty. Gen., for the State.
Michael T. Conway was indicted for making a false return of an election. Indictment quashed.
There were two Indictments for making a false return of the election by an election officer.The allegation in one indictment was that he did "willfully and maliciously make a false return of the number of ballots cast at said election at," etc., "knowing the same to be false." The offense was described in the statute as making "a false return of the election."
The other indictment charged that the defendant did "falsify the certificate of the number of ballots cast at said election," a second count charged that he "altered" the said certificate, and a third count alleged that he did permit persons unknown to alter the certificate.
A. B. Cooper and Josiah Marvel, for defendant.
Atty. Gen. White and P. L. Cooper, Jr., Dep. Atty. Gen., for the State.
LORE, C. J. We have considered this motion, and the court are agreed as to the judgment which they shall render. The offense is a statutory one, and is defined in the terms of the statute generally, not specifically. We think the charge in the indictment does not meet that particularity required by the statute, and that it charges rather what is a part or an element of the offense. The offense designated under the statute is "a false return of the election." In the indictment the charge is "making a false return of the number of ballots cast at said election," which would be an element of the false return, but not coextensive with the return itself. So that we are compelled to grant the motion to quash the indictment. We may say, however, in connection with this, that we recognize the difficulty attending the preparation of indictments under a new law and with new forms, and particularly under the pressure to which the attorney general has been subjected, since the 9th day of November, in this court. We can understand how very difficult it is to draw one, even under an old law, in which some astute lawyer cannot find flaws. And that difficulty is aggravated when the law is a new one, and when the attorney general is literally pressed down with a mass of business. We regret most deeply (and that is the sentiment of the whole court) the necessity for quashing these indictments, because, if the offense charged was committed by these respective defendants, they committed one of the gravest crimes known to the criminal law of this state, and, if convicted, they deserve and should receive the penalty which the law inflicts upon them. You may readily understand, therefore, with what great reluctance we grant this motion to quash.
Atty. Gen. White: That applies to all of the indictments.
Josiah Marvel, for defendant: Then I make the motion in regard to them all. Shall I call them by name?
PER CURIAM. Without calling the names, with the consent of the attorney general, the understanding is that it applies to them all, and these indictments are quashed.