People v. Cavanaugh

Garoutte, J. The defendant was charged by indictment with the commission of a felony. A general [675]demurrer was sustained to the indictment, and the people appealed. The prosecution is based upon an alleged violation of the purity of elections act. (Stats. 1893, p. 12.) The charging portion of the indictment alleges that defendant" did then and there willfully, unlawfully, feloniously, and knowingly give to one George Vice a certain sum of money, to wit, the sum of one hundred dollars, in lawful money of the United States of America, to induce said George Vice to procure, at a certain Republican primary election which was duly and regularly called by the Republican County Central Committee of the Republican party at Sacramento county, in the state of California, and was to be and was duly and regularly held in Sacramento county, state of California, on the twenty-fifth day of August, 1894, the election of certain persons, to wit [naming them,] as delegates to a certain Republican county convention, to be held in Sacramento city, state of California, on Tuesday, the twenty-eighth day of August, 1894, Which said convention was duly and regularly called for the purpose of nominating candidates for the various legislative, county, district, township, and city offices, to be voted for at the next general state election.”

It will be observed that defendant was charged with attempting, by the use of money, to influence the election of certain delegates at a Republican primary election. It is now claimed that the purity of elections .act does not apply to primary elections, and this court is in accord with such contention. A primary election is purely a creation of political parties and associations. These parties and associations may hold such elections .or they may not. It is not compulsory upon them, and, if they do hold such elections, they may hold them at such hours, at such places, and upon such terms and conditions as to them may seem fit. While there is a law upon the statute books providing the machinery for ■holding primary elections, it is not in any sense mandatory upon political parties to invoke its provisions, but, [676]upon the contrary, a resort to its provisions is a mere matter of choice. It follows from the foregoing that no importance can be attached to the words found ins the indictment stating that this primary election was “ duly and regularly called.” For these words are not equivalent to the statement, and do not even convey the idea, that it was held under the provisions of the Political Code, inasmuch as such election could have been “ duly and regularly called ” in entire disregard of the provisions of that code. For, as we have seen, political parties are a law unto themselves as to the conduct of primary elections.