UNIT£DSTATES 'l!. MORRISSEY.
o1secuting the. and paymenHo,tbe said Jarnes R. Glover, and to divers tbesaid grand jUTorsuriknown, of aforesaid.su'm of'money, more <>t MIS, all.1n furtherance and execution of the said aforesaid. Contrary totbe form of t.be of the 'United States in such case made and provided, and against the peace and dignity of the United States. .. . .
oN MOTION .FOR 'A, REHEARING' IN SOME OF THE CASES.
After argument, the court denied the motion; FIELD, J., observing that the count was subject to the objection stated when the decision was made,-namely, that it fails to aver that the surveyor general of the United' States for California, to whom the .alleged false, fictitious, and fraudulent cll1.ini. was to be presented, WM authorized to allow and approve oHt. The court also held that the count was defective in not describing the propertj inl'elition to which the <lI.11eg¢ false, fictitious, and survey wMmade inintelligi1:>le An indictment. is to. be read to the accused unless' the reading is waived. The lallguage should ther.efote be ,so plain that one of ordinary intelligence can understand its meaning. For that purpose, COmmon words are to be used as descriptive of the matter.' Abbreviations of words employed or in \fill notan,swer, full explanaby,men,pf tiono! their meaning in ordinary language: ' The use. of the initials A. D. toindieate the rear of'our Lord is an exception because of its universality. Arabic figures and Roman letters have also become indicative. of num.bers as fully as .wordE\ written out could be. They are' of such generlil use as to be known of all men. They therefore may be employed in indictments. But the initials ,here ,ha.ve reference to the puplic ,ll;l.nds as marked on the public surveysj they are signs used in a particular department of public business, and not matters of general and univeral knowledge by all speakers of the English language. The same objection applies to the initials S. B. M., supposed to denote San Bernardino meridian. .'l'4ere is no averment eX<lept'in this way that the land alleged to have been,:surveyedlies in the state California. . '['he iridictIllent is !J,lso'defective in that the accused 'knew that the .claim waafalse,.ficthious, and fraudulent·
STATES "'. MORRISSEY.
(C'ircuit Oourt, E. D.. Mi88ouri, E. D.· . April 21, 1887.)
1. ELEC'l'IONB-VIOLA.TION:OJ ' UNITEDBTATES LAWB-,-CONSTRUCTION OP STATUTE. 11) Rev. St. U. S, § 55:l4,eJl.acting .that where. by the laws of a state,
na.ma 9.f a candidate for representative or delegate in congress.. and the names of' candidates for i1tate offices, are required to be on the SQme ballot, "it shall be deeml)d sufficient prima facie evidence to convict...any person :voting or offering to vote unlawfully, under the provisions of to prove that the pe;aon so charged cast, or offered to cast, such tIcket or ballot wherein the name of Iluchrepresentativeor delegate in congress might by
law be printed; written,or contained, or that the person ao charged committed a,ny of the offenses in this chapter wjth, fl.Jference to, such ticket.or ballot, " the last clause should be re'ad as if the wO,I'd "so" were omitted, and the is therefore not limited to the offense of voting or offering to vote unlawfully, but' embraces' all offenses named in the chapter.
INDICTMENT-STATE ELECTION-ClNbIDATE FOR CONGRESS.
Although the indictment, for an offense against the United States election laws, was for receiving illegal ballots in a state where the names of all candidates voted for, including candidates for are required to be on the same ballot, the defect in the indictment m not charging that the illegal ballot contained the name of a candidate for congress is not aided by Rev. St. U. S. § 5514, above quoted.
S. SAME'-ARRES'l' OF JUDGMENT. Defendant was convicted under the fourth and sixth counts of an indictment for the violation of the United States election the fourth count that, "at a lawful election: so held under the laws of the said state of Missouri, for, representative in the fiftieth congress, * * * defendant being . ,then and there a.judge of election appointed and acting under authority of the laws of said state, * * did thEm a.nd there, as judge aforesaid, with intent to affe'et said eleetion, and the result thereof, Willfully and knowingly receive and place in the ballot· box , **: ilt. a ·certain ballot·then and there offered * ." The sb:th cou,nt charged that "a lawful election was held, " not stating what for, nor that a congressman was voted for. On motion in arrest of"judgment,heZd.; that' ,thldourth and sixth counts charged no offense cognizable by the federal courts, and that the motion should be sustained.
An indictment for an 'offense agaInst the United States election laws, to be cognizable by the United States courts, must contain an affirmative and distinct charA'e of an act which does or may affect the election of a. representative or delegatfil in congress. .
SAME-STATUTE OF JEOFAILS.
An indictment for an offense against the United States election laws, which is defective in not charging an offense cognizable by the United States courts, is not aided by the statute of jeofails, (Rev St. U. S. 1025,) especially where it carinot be said that the defect has. not operated to aefendant's prejudice.
UNITED STATES COURTS-JURISDICTION OF OFFENSES AGAINST ELECTION LAWS.
The United States courts have no jurisdiction of an offense against election laws which does not and cannot affect the election of a representative or delegate in congress.
SAME-JUDICIAL NOTICE OF STATE LAW.
On the trial of an indictment for an offense against the United States election laws, the' federal courts will take judicial notice that, at the election at which was chargedctQ.,have been committed, state officers were to be elected, ana that, by the laws of the state in which the election was held, the names of all candida.tes voted for, both for state and na.tional offices, were required to be on one ballot. In a prosecution in the federal courts under the United States election laws. where the offense charged is on the border line of federal jurisdiction, it is the imperative duty of the court to require a clear and distinct averment of every fact essential.to give the cour.t
SAME-AVERMENT OF JURISDICTION.
Motion in . . , ' '. Defendant was indicted under section 5515, Rev. St. U. S., forknowinglydoingan act unauthorized by lawtwith intent to affect the result of a congressional election, while serving as judge of an' election whereat a candidate for congress as well certain candidates for state and county offices were voted for. The indictment charged,.in substance, that he receivedcertairi ballots from persons whomhe knew were not entitled to vote, and whose votes were for that reason known to him to be fraudulent.
UNITED STATES 'l1. MORRISSEY.
A conviction was had on the fourth and sixth counts, and as to the residue of the counts there was a verdict of acquittal. The fourth and sixth counts failed to state that the fraudulent ballots alleged to have been re-ceived were cast for a candidate for congress. On this ground there was a motion in arrest of judgment. The laws of the state of Missouri, where the election was held, require the names of all candidates voted for to be printed or written on a single ticket. Thoow.8 P. Bashaw, Dist. Atty., and D. P. Dye:r, for the United States. Napton & Frost, for defendant.
J., (oraUy.) In this case two questions are presented, one the ruling of the court in construing section 5514, which declares that where by the laws of the state all candidates are to be voted for on a single ballot, proof of the existence of the ballot shall be prima facie evidence sufficient to justify conviction of the fact that a congressman WtlS voted for on that ballot. It is insisted that, reading that section critically, it is evident that congress intended only that that rule should apply to the party voting or offering to vote. The section is as follows: "Whenever the laws of any state or territory require that the name of the candidate or person to be voted for as representative or delegate in congress shall be printed, written, or contained, on any ticket or ballot with the names of other candidates or persons to be voted for at the' same election as state, territorial, municipal, or local officers, it shall be deemed sufficient prima facie evidence to convict any person 'charged with voting, or offering to vote, unlawfully,under the provisions of this chapter, to prove that the person so charged, cast or offered to cast such ticket or ballot whereon the name of such representative or delegate in congress might by law be printed, written, or contained. " That is the forepart of the section referring specifically to the person charged with voting or offering to vote. Then follows this clause: "Or that the person so charged committed any of the offenses denounced in this chapter with reference to such ticket or ballot."
it is claimed, the use ofthe word "so" carries this clause ba.ck to the forepart of the section. and makes it applicable only to persons voting or offering to vote. It is a familiar rule that that which is within the letter of a statute, and not within its spirit, is not within the statute; and also that that which is within the spirit, though not within, the letter, may sometimes be declared to be within the statute, even in criminal cases. Reading that as it is expressed, "so charged," it makes that clause superfluous, meaningless, and worse than that, because a person charged" could not be convicted of any offense but that of which he is charged, and could not be convicted of any of the other offenses named in this chapter. Obviously, that was not the intent of congress. Through carelessness in the. drafting or compilation of this section that word "so" was interpolated improperly, and the only fair construction of that section is to treat it as. though that word was not there. So read, it gives force and validity to this clause which otherwise it would
not'h'aive.c, So :read,it; gives meaning ,to the whole section, and carries out the' obvious intent of congress that, where there is a single ballot at any election at which under 'the law of the state all names mnst appear on the i same ballot, the production of the ballot is prirJUijacie evidence sUffibiEmtto'Mnvict, ete., ih!th'tnrialof any of the offenses named in thisehapfur. 1 think that objection, therefore, is not well taken. The other question runs to the sufficiency of the indictment. There were six: counts in this indictment. The defendant was found guilty upon fourth and sixth, and it is claimed that neither of these counts charge an offense of which the federal courts can take cognizance, or which are inc1udedwithi:n the statute; in this, that neither count charges that the ha1lotwhichwas charged to have been wrongfully received contained the name of any candidate for congress. It goes without saying, inuur dual sylltem of government, that· the federal government cannot take charge ofa mere state election, or an election merely for state officers, and no matter what wrongs may be perpetrated in such election, they are beyond the cognizance of the federal courts. The states, and the states alone,,llan .punish offenses which are merely offenses against the state laws. It has been settled by the decision of the supreme court in Ex pq.rte Siebold,.100U. S.. 371, that whereat the same election federal and state officers are to be elected, the general government can, for the pose of protecting theelectiohof federal officers, take cognizance of that and punish offenses which do or may affect the election of such otIi,cers., Wisclear from the language of the opinion of the court in that tbe intent of this l1-ct, if it was within the power of congress, tOJtttempt to reach, beyond and punish any act,however wrongful" in or about that election which affects solely the election of state officers. I quote what the court say: . have said it must be remembered that we are dealing only with to congress. If, for its own the subject of the election of convenience, a state sees fit to elect state and countY9fficers at the same time, and 'in conjunction'with that election of representatives to congress. congress will not be thereby deprived of the right to make regulations in reference to not !bean to say. however, that for any acts of the officers the of election, baving' exclusive reference to the election of state or county officerR, they wiW be amenable to federal jurisdiction. Nor do we understand that the enactthentsof congress now under consideration have anyapplication to Buch acts." Therefore, it must be apparent that the act charged is one which does or may affect the election of a congressman. Of course, anything affecting the registration prior to the election is an act which may affect the eleCtion for; 'congressman, and is within the cognizance of the federal cOurts. ; Anything that after the election in cOilnting the votes for governotorstate officers, or in preparing certificatestperefor, is something which 'affects only the state election, and cannot be considered Here. Anythitig transpiring on the election day which does or may affect the'electioiftofa congressman 'is within federal cognizance. Upon the otherliand; if it is something which does not and cannot affect the election'ofacongressman, it isaomething beyond our jurisdiction. Bear-
UNITJ1;D STATES V. MORRISSEY.
ing that in mind, obviously, there must be an affirmative and distinct charge in the indictment of an act which either does or may affect the election of a congressman. It is a familiar rule of criminal practice and pleading that nothing is taken by intendment. The fact must be charged, and charged distinctly. We cannot by inference fill out an incomplete charge. Now, the first two counts of this indictment charge that "the defendant, being a judge at that election, with intent to affect said election and the result thereof, did knowingly receive and place in the ballot-box, then being used at the polling place at said precinct, a certain ballot for a representative in said congress from said congressional district." There it charges him with an act which affected the election of a congressman -"receiving a certain ballot fora representative in congress." When we come to the fourth count,. part of that clause is omitted. It is charged that" at a lawful election so held under the laws of the said state of Missouri for representative in the fiftieth congress," etc., * * * "Peter R. Morrissey, being then and there a judge of election appointed and acting· under authority of the laws of said state at and for said precinct, did then and there, as judge aforesaid, with intent to affect said. election and the result thereof, willfully and knowingly and pl,ce in the ballot-box then being used. at said polling place a certain ballot then and there offered to him, the said. Peter R. Morrissey, as judge aforesaid, and by a person to thejul'orsaforesaid unknown." It dQes not charge that he received a ballot for representative in congress, but that he received a ballot. It is true, that count charges that there was a lawful election then being .held for a representative in congress. ·;We turn to the sixth count,and we find that .even this is omitted. It simply charges in that count that "a lawful election was held." What for, is not stated.. It does not say that a congressman was voted for. . N.ow, the, district attorney very plausibly and ingeniously a:rgued that as this count names only an election for a representative in congress, we are; to limit this aUe?;ation to the express words of the pleaderj that no reference was made to the fact that other officers were to be elected, and we are therefore to construe it as though, having charged that at an election being held for representative a ballot was received by him, it must necessarily be presumed. to have been a ballot for congressman.. Well, that is·eking out an omissioQ of the indictment with an inference, because we are bound to take judicial notice that at that election, under. the laws of the state, a vast number of state officers were to be elected, and that that ballot or any ballot. offered had to contain all the namasof all the candidates, state or national, for whom the person tendering the vote desired to vote. It is true that section 5514, when it comes to the matter of proof, says the production of the ballot is prima facie evidence that a congressman's name was on it, but a mere rule of evidence is not sufficient to enlarge the allegations of a pleading. Let me make this illustration, which I think will make my idea a little clearer. By the laws of the state of Maine, when (me is shown to be in possession of a. United States liquor license, that license is prima facie evidence of the posses-
sion of liquors for sale, unlawfully under the state statute; so when you charge a man unJer the state laws with selling liquor unlawfully, you make out a prima facie case by producing the federal license for him to sell. But would it'for a moment be claimed that an indictment 'under that law was good which charged the defendant with selling liquor under a United States license, without also charging him that he was selling liquor without the state 'license? One is a mere rule of evidence which does not eke out a defector omission in the language of the indictment.'. There shouldbe,8.s, there was in the first two counts, a distinct,dirMt, and affirmative allegation that the defendant did receive a ballot on :which was the name of a congressman. That' being charged, then the section determines the matter of proof. In cases of this kind, the act comes to tl.te border line of federaljurisdiction, it seems to os an imperative duty upon the court to hold the 'pleader to a distinct and clear averment of every fact which is essential to give federal courts jurisdiction, and that we ought not by inference and presumption to open the door so as to include matters which mayor may not be an offense against the United States. It is charged that this defendant knowingly'received a ballot at that election. Who can say from that that it was a ballot for congressman? We know judicially that that ballot was to contain the names of all the candidates, or might contaiilthe names of all· the candidates, but when he is charged knowingly receiving a ballot, is he charged, or can it by any fair inference be assumed that he is'charged, with receiving a ballot for congressman? We think, under the clear rule of criminal pleading, that that count in the indictment does not cha.rge an offense against the defendant, and the motion in arrest will be sustained.
THAYER, J. I fully concur in the order sustaining the motion in arrest ofjudgment as to the fourth and sixth counts. According to the authorities cited on the argument it is clear that the act charged in the indictment is no offense against the laws of the United States, unless the fmudulent ballot alleged to have been received by the defendant was a ballot for a candidate for congress. U. S. v. Cahill, 3 McCrary, 200, 9 Fed. Rep. 80; U. S. v. Seaman, 23 Fed. Rep. 882. In the absence of any adjudication on the sUbject, I should have no doubt that such was the law of the case. ·In the nature of things, congress has no authority to impose penalties on a. judge of election for receiving a fraudulent ballot, unless the ballot is cast for a candidate for some federal office. It is the single fact that the· ballot alleged to have been received by the defendant affected the result of a congressional election that gives this court jurisdiction over the offense. Such being the law, it goes without saying that the indictment should show the character of the alleged fraudulent ballot, not by inference merely, but by plain and direct averment. Now l in neither' of the counts upon which a conviction was had is there any direct averment that the ballot in question was cast for a representative in congress. In the fourth count of the indictment it does
EVANS'll. VON LAER.
appear that the election at which the ballot in question was received was an election at which a representative in congress was voted for, but we must take judicial notice that it was also a general state election for the election of numeroos state and county officers, so that it by no means follows as a necessary inference from anything stated in/the count that fraudulent ballot was cast for a candidate for a federal office. It would be consistent with all the averments of the count to assume that 1t was cast for a candidate for a state office only. The sixth count is even more defective, in that it is not averred in express terms that at the election in question a representative in congress was voted for. In my opinion, it would be violative of all rules of correct pleading to hold that the fourth and sixth counts of this indictment show that an offense has been committed against the laws of the United States. They can only be sustained by indulging in inferences favorable, to the pleader that would hardly be tolerated in a civil proceeding, even after the rendition of verdict, and this is open to violation of the rule that an indictment should charge an offense with· the highest degree of certainty. In answer to the suggestion made on the argument' of the motion that the defect in the indictment is cured by the statute of jeofails, section 1025, Rev. St. U. S., it is sufficient to say that the statute in question not remedy a defect in an indictment of such a radical nature as a failure to charge an offense; and, even if the statute should be held to have such curative properties, it would be impossible to say, from a consideration of the indictment and the charge to the jury, that the deffct in the indictment had not operated to prejudice the defendant. I may further add that section 5514, Rev. St. U. S., does not aid the indictment, as that section prescribes a rule of evidence only, whereas the i.ndictment is faulty in failing to state an offense within federal cognizance. There is no escape from the conclusion that the judgment should be arrested.
and another v·.vON
September 8, 1887.)
TRADE-MARK-"MoNTSERRAT LIME-FRUIT JurcE"-mITATION OF BOTTLES.
In a suit to restrain the 'infringement of a trade-mark, the only resemblance between the defendant's and complainants' packages was in the color of the labels, the use of the words "Montserrat Lime-Fruit Juice," and the form of the bottles. but the evidence disclosed that most lime-juice bottles were quite similar in size and design. Held no deception. Montserrat being the name of an island from which both parties import lime juice, the complainants, in the absence of fraud, are not entitled to the exclusive use of the word "Montserrat" as a designation for lime juice, although their article may have acquired a high reputation for purity and strength, while that of defendant may be of an inferior quality. Where both parties are dealers in lime juice, the defendant has no right to sell lime juice in bottles stamped with complainants' name.
SAME-USE OF BOTTLES STAMPED WITH COMPLAINANTS' NAME.