People v. Neil

Fitzgerald, C. The defendant was tried and convicted in the court below upon an information charging him with illegal voting, and sentenced to imprisonment in the state prison for tire term of one year. The information, which charges, in the language of the code, that the defendant fraudulently voted at an election, when he was not entitled to vote, was demurred to on the following grounds: 1. That the facts stated in the information do not constitute a public offense; 2. “That the information does not substantially conform to the requirements of sections 950, 951, and 952 of the Penal Code in this, that it is alleged that defendant was not entitled to vote at the election therein mentioned, but it is not alleged what qualification of a voter he does not possess.”

The demurrer was overruled. After verdict, and before the defendant was called for judgment, he moved the court in arrest of judgment on the first ground stated in the demurrer, which motion was denied by the court.

The case is brought here by appeal, upon the judg[467]ment roll, from the judgment rendered upon the conviction, and from the order denying the defendant’s motion in arrest of judgment.

The only question presented for decision involves the .validity of the information, on the ground that it is not direct and certain, for the reason that it omits to set forth the particular circumstances of the offense charged, and which are necessary to be alleged, in order to constitute a complete offense under the law.

Section 45 of the Penal Code, or rather that part of it upon which the information herein is founded, reads as follows: “Every person not entitled to vote who fraudulently votes at any election .... is guilty of a felony.”

Section 1 of article II. of our state constitution prescribes the qualifications and disabilities of electors, and sections 1083 and 1084 of the Political Code are in the exact language of this section of the constitution.

The information, as we have before stated, charges the offense in the language of the code, and it is well settled under our system of pleading in criminal cases that this will generally be held to be sufficient; but where the particular circumstances of the offense are necessary to constitute a complete offense, they should be stated and averred, and a failure to do so will vitiate the information or indictment.