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able, the liability to such punishment and not the punishment actually inflicted being the circumstance which controls the effect of the

conviction in this respect. 3. PARDON.

Semble, that such forfeited privilege may be restored by a pardon to that effect, granted in pursuance of a statute expressly authorizing it.

Indictment for Voting Unlawfully, contrary to section 5511, Rev. St.

Rufus Mallory, for the United States.

H. Y. Thompson, George H. Durham, Sidney Dell, and W. W. Page, for the defendant.

R. S. Strahan also submitted a brief for the defendant.

DEADY, D. J. On December 17, 1880, the defendant was indicted, by the grand jury of the district court for the district of Oregon, for the violation of section 5511 of the Revised Statutes, committed by voting on June 7, 1880, for a representative in congress, at an election for such representative, in Madison precinct, county of Multnomah, state of Oregon, without having a lawful right to do so, for that, on June 28, 1871, he was indicted by the grand jury of the circuit court for the county of Marion, state of Oregon, of the crime of an assault with a dangerous weapon committed upon the person of Samuel A. Clarke, by shooting at him with a pistol, of which crime he was, on June 30th, thereafter, duly convicted by his plea of guilty to said indictment, and sentenced to pay a fine of $200 and the cost of prosecution. The indictment was afterwards transferred to this court, and the defendant comes and demurs thereto, because: (1) It does not allege that the defendant voted as charged knowing he had no right to vote; and (2) upon the facts stated therein the defendant was not disqualified to vote as charged. The section (5511) under which the indictment is found declares that "if, at any election for representative or delegates in congress, any person knowingly personates and votes, or attempts to vote, in the name of any other person, whether living or dead, or fictitious, or votes more than once at the same election for any candidate for the same office, or votes at a place where he may not be lawfully entitled to vote, or votes without having a lawful right to vote,

he shall be punished by a fine of not more than $500, or by imprisonment not more than three years, or by both, and shall pay the costs of the prosecution.”

The defendant, in support of the first ground of his demurrer, contends that the word “knowingly” is understood and implied, in each clause of this sentence, so that it must be construed as if it read, “knowingly personates and votes, or attempts to vote, etc.; or knowingly votes more than once, etc.; or knowingly votes at a place, etc.; or knowingly votes without having a lawful right to vote.” And I have no doubt that such is the true construction of it. In U. S. y. Anthony, 11 Blatch. 200, which was an indictment upon the same statute for the saine offence, it appears to have been so construed as a matter of course. The court, in speaking of the section under consideration, saying that the “act makes it an offence for any person knowingly to vote for such representative (a representative in congress) without having a lawful right to vote.” And, as this case was well contested on the part of the defendant and turned solely upon the question of her knowledge of her want of right, this reading of the statute must have passed without contention, as being too plain for argument. In that case the defendant was qualified to vote, except for her sex; the law of the state (New York) being that none but males should vote. The defendant voted, claiming that under the fourteenth amendment to the constitution of the United States she was entitled to, notwithstanding she was a female. It was held, Hunt, J., that as the defendant knew all the facts, and was presumed to know the law, her belief that she had a right to vote, when she had none, was no defence to the indictment, and therefore the court directed the jury to find the defendant guilty, which was done. The belief in such case may affect the sentence, but not the verdict. Whar. Cr. L. $ 1835.

But the true reading of the statute being that the defendant's knowledge of the want of right to vote is an essential part of the crime, it should be expressly alleged in the indictment. Bish. Stat. Cr. $ 827 et seq.; Whar. Cr. P. & P. § 164. The demurrer upon this point is sustained. But as another


grand jury may correct the indictment in this particular, or the defendant may be prosecuted by information, (section 1022 Rev. St.; U. S. v. Block, 4 Sawy. 211,) it is necessary, for the purpose of determining whether he ought to be held to answer further, to pass upon the second cause of demurrer. The solution of the question made upon this cause of demurrer lies within a small compass, and depends primarily upon the signification of the term "conviction" and the phrase "is punish

as used in section 3 of art. 2 of the constitution of the state. The article is devoted to the subject of “Suffrage and Elections." The first section only declares, in a somewhat oracular manner, without practical definition or limitation, “All electors shall be free and equal." The second one confers the right to vote upon all persons who are entitled under any circumstances to exercise that privilege within this State; and the third limits the second, by declaring who shall not be entitled to such privilege, and also by what means the privilege conferred by said section 2 may be lost. It reads: "No idiot or insane person shall be entitled to the privilege of an elector; and the privilege of an elector shall be forfeited, by a conviction of any crime which is punishable by imprisonment in the penitentiary." The argument in support of the demurrer is to the effect that “conviction" of a crime takes place by the operation or effect of the sentence or judgment of the court determining and imposing the punishment therefor, and that as the defendant was only sentenced to pay a fine of $200, he was therefore not convicted in the state court of a crime punishable by imprisonment in the penitentiary.

The authority cited and mainly relied upon to support this argument is People v. Cornell, 16 Cal. 187. The case is briefly and obscurely reported. It contains a short opinion by Cope and Baldwin, JJ., each,-Field, J., dissenting,—and relates to an appeal taken by a defendant from a judgment upon his plea of guilty. The authority of the case will be better understood by the following statement of it: The defendant was indicted for an assault with intent to commit murder, and pleaded guilty to an assault with a deadly weapon with intent to commit bodily injury, and was sentenced to

pay a fine of $1,200, or be imprisoned in the county jail. The crime of which the defendant was convicted by his plea of guilty was punishable by imprisonment in the penitentiary, or by fine, or both; and by the law of the state any crime “punishable by death or imprisonment in a state prison” was a felony. Hittell's Laws, $$ 1452, 1592. By the constitution of the state, article 6, § 4, (Hittell's Laws, 35,) it was provided that the supreme court of the state should have appellate jurisdiction “in all criminal cases amounting to a felony."

Counsel for the state moved to dismiss the appeal, and the motion turned upon the decision of the question, whether the defendant's right to an appeal depended upon the nature of the crime charged in the indictment or confessed by his plea of guilty, or the punishment imposed upon him by the sentence of the court. The court held that the defendant having been sentenced as for a misdemeanor, an appeal would not lie from such judgment, because its appellate jurisdiction was limited to a “case amounting to felony." The court considered the case on the appeal, as one of misdemeanor, and therefore not within its appellate jurisdiction.

It is true that in the opinions of the judges the terms “conviction" and "judgment" are used indiscriminately, and the punishment inflicted is spoken of as determining the grade of the offence. But these expressions must be taken and considered with reference to the question before the court, which was whether a judgment as for a misdemeanor was a case of felony within the meaning of that clause in the constitution giving it appellate jurisdiction "in all criminal cases amounting to felony;” and the answer was in the negative, because, so far as the defendant was concerned, the right to an appeal depended upon the nature of the result as to him, and not the charge.

In the same way section 22 of the judiciary act, (1 St. 84; Rev. St. § 691,) giving the supreme court appellate jurisdiction over the judgments of the circuit courts in actions where “the matter in dispute" exceeds in value a certain sum, has been construed so that, upon the appeal of the defendant,

the value of the matter in dispute is measured by the amount of the judgment against him, while in the case of the plaintiff it is measured by the amount of the claim or charge. Gordon v. Ogden, 3 Pet. 33; Knapp v. Banks, 2 How. 73; Ryan v. Bendley, 1 Wall. 66; Walker v. U. S. 4 Wall. 163.

In People v. War, 20 Cal. 117, the question of the right of appeal in criminal cases came up again, and the court held (p. 120) that the statute definition of a felony—a public offence punishable by death or imprisonment in a state prison—included any offence which may be or is liable to such punishment; and that although the offence charged in an indictment may, in the discretion of the court, be punished simply by a fine, still it is a felony, and an appeal will lie by the people from a judgment sustaining a demurrer thereto. In noticing People v. Cornell, the court said the jurisdiction of the appeal was denied in that case upon the ground that "the nature and extent of the punishment fixed the right of the appeal" by the defendant.

In People v. Apgar, 35 Cal. 389, the defendant was indicted for an assault amounting to a felony, and convicted and sentenced for a simple assault. He appealed upon the ground that the character of the offence charged gave jurisdiction, but the appeal was dismissed upon the ground that he was acquitted of the felony and only convicted of a misdemeanor, and that therefore the case on appeal did not amount to a felony; and in referring to People v. Cornell, the court said it was held therein that the judgment determined the character of the case for the purpose of an appeal. The effect of the decision, then, in People v. Cornell, as I understand it, and as interpreted in both the cases of War and Apgars goes no further than that, unless the judgment in a criminal case imposed the punishment prescribed for a felony, the defendant cannot have the benefit of an appeal from it. But the question in this case is not whether the defendant has been convicted of a felony or misdemeanor, but whether he has been "convicted” of a crime “which is punishable by imprisonment in the penitentiary.” And the fact that a subsequent statute (Or. Cr. Code, $ 3) has declared a crime "which is or

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