People v. Harris

By the Court, Currey, C. J. The defendant was indicted for voting twice at the general election held on the 6th of September, 1865. To the indict^ ment he pleaded not guilty. Upon the trial he was found guilty and sentenced to be imprisoned in the State Prison for one year.

It is provided by statute that any person who shall vote more than once at any one election shall be deemed guilty of a felony, and, upon conviction, shall be imprisoned in the State Prison for a term not less than one year nor more than five years. (Laws 1858, pp. 165, 166.)

Statement of facts.

The evidence shows that the defendant voted at the election polls of the Fifth District of San Francisco at about 10 o’clock in the forenoon of the day above mentioned, when his right to vote was challenged on the ground that he was not a resident of the district. The challenge being withdrawn the defendant voted; About two or three o’clock in the afternoon the defendant returned to the same polls very much intoxicated and again offered to vote. The same person who had challenged his right to vote at that place in the morning informed him that he had voted before, and that he would get himself in trouble if he voted again. The defendant, in reply, vehemently protested that he had not voted, and declared his willingness to so make oath. The oath prescribed by the statute was then administered to him by the proper officer, to which [680]he responded in the affirmative, and then voted the second, time.

When the cause was submitted to the jury the Court charged them as follows: “ The indictment charges that the defendant at an election for members for the State Senate and Assembly, held on the 6th day of ‘September, 1865, in the Fifth Election District of this city and county, did knowingly, unlawfully and feloniously vote more than once at the same election. The language of the statute upon which the indictment is framed is, ‘ any person who shall vote more than once at any election * * *■ shall be deemed guilty of a felony.’ The word knowingly is not in the statute, and although used in the indictment, yet it may be rejected as surplusage, for the State is not bound to support by proof the allegation in the indictment, that the act of double voting was knowingly done. The statute makes the act of voting more than once at the same election, and not the act of voting knowingly more than once at any election, a crime. If, therefore, you are satisfied from the testimony in the case that the defendant, at an election for members of the State Senate and Assembly, held on the 6th day of September, 1865, in the Fifth Election District, in this city and county, voted twice, then, although the defendant may at the time have been under the influence of intoxicating liquors, it is your duty to bring in a verdict of guilty against him ; for drunkenness is no excuse or justification for the commission of a criminal act, and evidence of voluntary intoxication is properly admissible as affecting crime only in those cases in which it is necessary to ascertain whether the accused was in a mental condition which enabled him to form a deliberately premeditated purpose, and this is not one of those cases. The counsel for the defendant requests me to charge you that every crime involves a union of act and intent or criminal negligence. This is true. The law does not punish a man for his intention, nor for his act disconnected from his intention, but act and intent must unite to constitute a crime.”