People v. Stone

WORKS, P. J.

Defendants were charged with conspiring, as members of an election board, “wilfully, unlawfully and feloniously ... to add to the votes cast in favor of” a proposition balloted upon at the election during which the board sat, and “to subtract from the votes cast against” the proposition, in the official returns of the election. The crime which it was alleged defendants conspired to commit is denounced by section 51 of the Penal Code. Defendant Emerich pleaded guilty and defendant Stone was convicted after a plea of not guilty. The latter appeals from the judgment and from an order of the trial court denying his motion for a new trial.

Appellant contends that the trial court erred in giving to the jury an instruction which read in part: “In this case there is no specific intent involved, and it is not necessary for the State to prove that an act was done with the intent of affecting the result of the election or of injuring anyone, or of committing any crime. The charge against the defendants makes no mention of any particular intent. The use of the word ‘wilfully’ implies simply a purpose or willingness to commit the act referred to, but it does not require any intention to violate the law or to injure another or to acquire any advantage.”

It is provided by section 51 of the Penal Code that “Every person who wilfully adds to, or subtracts from, the

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votes actually cast at an election, in any official or unofficial returns” is punishable in a certain manner. The assailed instruction was properly given, as it was practically in the language of subdivision 1 of section 7 of the Penal Code. See

People

v.

O’Brien,

96 Cal. 171 [31 Pac. 45];

People

v.

Dillon,

199 Cal. 1 [248 Pac. 230], Appellant relies on

People

v.