according to the counsel, procurement, and advice of the defendant. There is not a single direct allegation in the indictment that Molloy was an officer of registration, or that he did any act amounting to an offense. All the information given on those points must be gathered from the indictment against Molloy, which is set out merely by way of recital. Evidently, the pleader supposed that it was sufficient to aver that Molloy had been convicted ona certain indictment, and that it was unnecessary to allege specific acts done by the registration office! amounting to an offense. . In my opinion, the allegation that an indictment of a certain kind was found ,against Molloy, and that he was convicted, is wholly immaterialj for, as this defendant was not an accessory to the offense committed by the registration officer, but, if guilty of any offense, was guilty of a distinct and independent crime. neither the indictment against Molloy nor record of conviction would be admissible in evidence against this defendant to establish as against him that Molloy had in point of fact oommitted the acts described in the indictment against Molloy. I feel confident that the indictment in the case at bar is bad in law, and that the defendant should not be put on trial under the same. I will sustain the objection against the admission of any testimony to support the indictment, and order the defendant's discharge.
UNITED STATES'll. CHAMBERLAIN.
(Diatrict Oourt, E. D. MiB8oUri, E. D.
ELECTIONS-On-ENSES AGAINST-REv. ST.
November 16, 1887.)
U. S. § 5521. A supervisor of election was indicted under Rev. St. U. S. § 5521, for neglecting and refusing to challenge the vote of an individual representing himself to be a person whom said supervisor knew to be dead. Held that, jf for any reason he did not at the time know that such vote was being offered, he was not guilty of any offense.
Indictment for Violation of section 5521 of the Revised Statutes of the United States. Tho8. P. Bashaw, U. S. Dist. Atty., and D. P. Dyer, special counsel, for the United States. Wm. C. Mar8haU, for defendant. THAYER, J., (charging jury.) The indictment in this case charges, in substance and effect, that John W. Chamberlain,the defendant, was duly appointed, by the circuit court of the United States for the Eastern district of Missouri, one of the supervisors of election for the Fiftysecond election precinct of the city of St. Louis, the same being in· the fourth ward of this city, and within the Eighth congressional district of the state of Missourij that, as such supervisor, he served atanelection held in that precinct on November 2, 1886, at which election a
representative in congress for the Eighth congressional district of Missouri was voted for; that, while 'so serving as supervisor of election at that precinct,' ,some person 'representing himself to be Ed Maher, residing at 90TBiddle street, offered· a ballot for a representative in congress then being voted for; that suohballot was accepted as a lawful ballot by the judges /of election at said precinct, and that defendant, though present and aware that the Ed ,Maher residing at 907 Biddle street was dead, nevertheless .neglected and refused to challenge the vote so offered and accepted. By way of explanation, IwiHsay that, under the laws of the United States, the circuit court of the United States, on the written request ofa certain number of citizensrel'Jiding in the district where such court is held, has power prior to the holding of an election for a representative in congress in such district to appoint what are termed "Supervisors of Election'/' for the various voting precincts of cities having over 20,000 .peoplewithin: the congressional district, whose duty it is to guard and scrutini:ze the election in so far as it relates to the election of a congressional representative. The' duties of such officers are in part defined by the following paragraph of section 2017 ofthe Revised Statutes of the Hnited States;: Which I will read: "Sec. 2017. The supervisors of election are authorized and reqUired to attend at all times and places for holding elections of representatives or delegates in congress, and for counting the votes cast at such elections; to challenge any vote offered by any person whose legal qualijlcations the supervisors, or either of them, may doubt. * * *"
The phrase" challepge .any vote offered by any person whose legal qualifications the supervisor may doubt" means simply this: that it is a supervisor's.dutyto enter an obJection or protest before thejudges of election against the receipt ofa ballot for a representative in congreils from any ..person. whom the supervisor believes is not reason Ii legally at, the precinct where such vote is tendered; and, at the time ofn,iaking,'suchobjectiOJ;l, it is also the supervisor's duty to state to ofelectlon the grounds that is to say, the facts on which the objection or challenge is based. The laws of the f)United States :Contain ,this ,further provision, which I will also call to your attention. as the indictment is founded on the particular section I am abouUoread. It is as follows: "Sec. 5521. If any person be appointed a supervisor of election, '" ",.", and has taken the oath of office as such supervisor of election, * * * and thereafter neglects or refuses, without good and lawful excuse, to perform and fUll):'tll,e duties, obligat!ons, and of such office until tile exprration of the term for WhICh he was appomted, be shall not only be 'subject to removal from office, with loss of all payor emoluments, but shall be punisihedby iniprisonmentfor not less than six months, nor more than one year, or by a fine of not less than two hundred dollars, 'and not more than five hundred dol'ars, or by both fine and imprisonment,· and shall pay the costs of prosecutiOI,1." As it is made the supervisor's duty to challenge a vote if he entertains a doubt ofthe·voter's qualification, it follows I under the 'statute 1 last
UNITED'STATES 'V. CHAMBERLAIN.
readyou,tbat, if a supervisor knowingly neglects oi'tefuseswben acting as supervisor to challenge the vote of any person offering to vote in his presence whom he knows. or believes to be diAqualified to vote at that precinct for any reason, then he commits an offense against the laws of the United State:;. The court accordingly instructs you that if you find from the evidence that defendant was appointed supervisor of election for the Fifty-second election precinct of the city of St. Louis at the election held November 2, 1886, that while serving in that capacity at said precinct a person with the knowledge of the defimdant represented himself to the judges of election to be Ed Maher, residing at 907 Biddle street, and tendered a \,ote in that name for a representative in congress from the eighth congressional district of Missouri, which "ote was accepted and placed in the ballot-box, and that defendant intentionally omitted to challenge said vote, that is to say, did not object to or protest against the acceptance of said ballot by the judges of election, although he knew that said Ed Maher was dead, then he should be found guilty of the charge laid in the indictment. To warrant you in finding the defendant guilty of the charge laid in the indictment, all the facts last stated must have been proven by the prosecution, not only to your satisfaction, but beyond any reasonable doubt. Now, gentlemen, under the statute which I have read to you, it is obvious that the defendant cannot, and ought not to, be found guilty unless there was an intentional omission on his part to challenge the vote in the nanieof Ed Maher when such vote was offered, if it was offered, although he knew that Maher was dead, and that some one was attempting to vote in his name. It follows, therefore, that if he was absent from the room when the vote in that name was received, and for tbat reason, or for any other reason, he did not know at the time such vote was offered in the name of Maher that it was being offered, then he was not guilty of any offense, and you should so find. . The defendant, as I have understood him, claims that he was absent from the room where the votes were polled when said vote in the name of Maher was received, if any such vote was offered, or at least he claims that he was not aware at the time of the transaction that any such' ballot was being offered. There is other testimony in the case tending to corof the witroborate the defendant's statement, particularly the nesses James' McCormick and George W. 'l'horn. and some entries contained in the registration list, to which defendant's counsel has alluded. You are the exclusive judges of the credibility of thesewitnesses,andof all the witnesses, and it 'is your province to determine what weight you will give to their testimony.. It is your dnty to carefully weigh the oral testimony, and to consider the entries which appear in the registration list to which ailUllion has been made, and even if you find that some person did vote in the name of Maher, and that defendant knew that Maherwas dead, still yonahould not convict the defendant of the charge in this iildictment unless the evidence satisfies you, beyond any reasonable. d,oubt, that defendant stood by and .saw or heard the vote in the name .of Maher and intentionally kept silent and permitted the judges of election
to accept such fraudulent ballot without challenging the same or making any objection thereto. In conclusion I will say to you, in view of what has occurred during the argument, that defendant is on trial merely upon the charge stated in this indictment of intentionally neglecting to challenge a fraudulent ballot, knowing it to be fraudulent. You will confine your attention solely to that charge, ignoring any other charges against the defendant that may have been made by counsel in the course of the argument. The entries in the poll-books, and in the defendant's report, are before you, and nreto be considered solely for the purpose of enabling you to determine whether the charge in the indictment is true or false.
LEATHERBURY tJ. UNITED STATES. l
(Oircuit Court, 8. D. Mi8Bi88ippi. November 7, 1887)
PUBLIC LANDS-CuTTrNG TIMJ3ER-BoxrNG PINES.
Boxing of pine trees for turpentine, uy which the trees are not felled nor severed from the soil. is not a cUtting of timber with intent to dispose of the same" in a manner other than for the use of the navy, within the meaning of Rev. St. U. S. § 2461, where the trees so boxed are not upon public lands reserved for supplying timber for the navy, and where there is no intent to export, dispose of, use, or employ the trees or timber in any manner whatsoever. 1
Luke Lea, for plaintiff in error. J. B. Harris, Dist. Atty., contra.
PARDEE, J. This writ 9f error is prosecuted to reverse It conviction under an indictment of which the following is the mate,rial part for this case: "That heretofore, to-wit, during the years 1883, 1884, 1885, and 1886, in said district, aud Within the jurisdiction of this court, Geo. S. Leatherbury did u.nlawfUlly cut, and cause to be cut, a quantity of timber, to-wit. 31,784 pine trees of the value each of fifteen cents, then and there standing and growing upon certain lands, of the United States, theretofore acqUired, to-wit, (inserting description of lands,) with intent to dispose of the said timber, in a manner other than for the use of the navy of the United States, to-wit. for his own use and benefit against the peace and dignity of the United States," etc. The statute of the United States under which the indictment was found and the prosecntion had, is section 2461, Rev. St. U. S.; and it provides, among other things: "If any person shall cut, or cause or procure to be cut, or aid, or assist,or be employed in cutting, any live-oak or red cedar trees, or other timber on, or shall remove, or cause or pi'ocure to be removed, or aid, or assist, or be emIBee 27
'As to the right of a settler on public lands to cut timber thereon, see U. S.
Fed. Rep. 606.