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for State's attorney by making a cross or mark in the square in front of Ramey's name with the intent to defraud the electors of their votes. Some of the counts alleged an attempt to make such changes. In other counts the intent was alleged to be to deprive Major of the votes, and in others to mutilate and destroy the official ballots so that they would be thrown out and not counted for Major. A motion was made to quash each count of the indictment. This motion was overruled as to all counts except the thirteenth, to which it was sustained.
It is urged that the indictment does not allege that Major had the qualifications required for the office of State's attorney and that the indictment is not valid in this regard. The qualification of the candidates is immaterial.
It is also urged that the indictment was faulty in that it fails to aver that there was a second election district of the election precinct of the town of North Litchfield. The allegation of the indictment that a general election was held in the second election district of said town charges with sufficient certainty that there was such second election district.
It is further argued that the indictment does not charge that the plaintiff in error was guilty of any act that constituted fraud, corruption, partiality or manifest misbehavior, because the act of changing the ballots was of itself an offense under section 86 of the Election law, and the attempt to change the ballots was an offense under section i of division 2 of the Criminal Code. Plaintiff in error was indicted for fraud, corruption, partiality and misbehavior while acting as judge of the election. The indictment sets out the specific acts constituting such fraud, corruption, partiality and misbehavior, and it can make no difference that some of such acts so set out may, in and of themselves, have constituted the violation of other statutes or other sections of the Election act.
The indictment here in question is signed by Amos Miller, special State's attorney. The record shows that J. Earl
Major was the State's attorney of Montgomery county at the time the indictment was returned and that Miller was appointed special State's attorney by the court upon the petition of the State's attorney. Section 6 of chapter 14 of our statutes provides that whenever the State's attorney is interested in a cause which it is his duty to prosecute or defend, the court in which such cause is pending may appoint some competent attorney to prosecute or defend, and the attorney so appointed shall have the same power and authority in relation to such cause as the State's attorney would have. Without question the circuit court was authorized, on the filing of the petition by the State's attorney, to appoint Miller as special State's attorney, and the order appointing him could only be attacked by direct proceeding. He was at least a de facto special State's attorney. Lavin v. Commissioners of Cook County, 245 Ill. 496.
The election was conducted in a store-room at the southeast corner of State and Ryder streets, fronting west twenty-two feet on State street and running back sixty-six feet, called by some of the witnesses the Morrison building, by others the Taylor Annex. The only entrance to the building was a door at the west end. It was separated into two rooms by an arch. There were nine or ten booths used at the election,-five along the north wall in the west end of the building and four extending across the west room north and south, back of the space where the judges and clerks conducted the election, dividing the west room into two parts. While the polls were open only the front part of the front room was used. After the polls were closed at five o'clock the boxes were carried to the east room beyond the booths and arch and opened and the ballots were placed on a table about fourteen feet long. Between six and seven o'clock the judges and clerks, leaving the ballots on the table in the east room, had supper in the front room. While they were doing so they were not in sight of the ballots on the table in the back room, and five or six persons who were not election officers were in the back room where the ballots were on the table. After supper the canvass of the votes was continued in the back room. Besides the judges and clerks there were present at such count and canvass Dan W. Maddox and L. L. Deem, republican challengers, Stuttle and Bray, democratic challengers, and others. Deem testified that they went through the ballots for each office; that he separated the ballots and passed the democratic ballots to the plaintiff in error and the other ballots to another judge named Johnson; that he saw plaintiff in error with a short pencil mark a number of the ballots a short distance from the bottom of the sheets, his hand being partially under the ballots. Witness told Maddox about what he had seen and soon after the attention of all present was called to the ballots, which were marked for two candidates for State's attorney. The matter was discussed and charges made that the ballots had been tampered with. The question arose as to how they should be counted, and they were finally all counted for Major. Twenty-one ballots were introduced in evidence. The names of the candidates for State's attorney are printed about two inches from the bottom, the democratic column (in which Major's name appears) being the first on the ballot and the republican column (in which Ramey's name appears) being the third. The pencils in the booths furnished by the election officers were indelible. Many of the ballots show marks in the circle or in the squares, including the square before Major's name, all made with an indelible pencil, and a mark in the square before Ramey's name made with a soft black pencil. There is evidence in the record tending to show that plaintiff in error had talked with Maddox after the election about the case not being prosecuted. There is also evidence that during the canvass in the polling place plaintiff in error was charged with changing these ballots and did not in any way attempt to explain or deny the charge. Maddox testified that after the charge was made that the ballots had been marked improperly he saw plaintiff in error put in his vest pocket what he thought was a short pencil about two inches long.
It is urged that the ballots alleged to have been altered by plaintiff in error were improperly admitted in evidence for the reason that more than six months had elapsed since the election at which they were voted, and that the law required the county clerk to destroy them, no election contest pending, and therefore they had no legal existence. They were actually in existence. Their value as evidence is not affected by the lapse of time or the failure of the county clerk to destroy them.
It is also urged that the ballots were not properly preserved and that none of them were identified by witnesses. Whatever may be the rule as to the competency of ballots in cases of election contests, such rule does not apply to the competency of ballots in a criminal prosecution of this character. They were admissible in evidence, together with evidence of the manner in which they had been preserved, for what they were worth, and it was for the jury to determine what weight should be given to them as evidence under all the circumstances of the case.
Counsel for plaintiff in error produced the record of the proceedings of the board of supervisors and offered to show that there was no order of the supervisors fixing the Morrison building or Taylor Annex as the voting place, and that there was no record of the establishment of election district No. 2 or that the township of North Litchfield had ever been divided into election districts. It is argued by counsel for plaintiff in error that it is essential to the validity of an election that it be held at the time and place appointed by law; that when the place is not fixed by law but is to be fixed by some authority named in the statute, it is essential to the validity of the election that the place be fixed by such agency. (Snowball v. People, 147 Ill. 260; Williams v. Potter, 114 id. 628; People v. Goche
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flour, 54 id. 123.) All of these cases were with reference to the validity of the election and not as to the liability of an election official to be punished for a violation of the Election law at the election so held. In the case at bar the second district of the township in question had apparently been recognized as one of the voting districts for some time. The county commissioners, in appointing the judges and clerks, appointed such officials for the second district, including plaintiff in error. He was served with notice of his appointment and took his oath as such official. The ballots were printed by the county clerk especially for this district, having on the back the designation of the district according to law. No objection was made by plaintiff in error when he took the oath of office and assumed the duties as one of the judges that the election was not held at the legally appointed place, or that it was not in a properly established district, or that it was not properly called, or that there was any other thing in connection with it that was being carried on contrary to law. In: People v. McCann, 247 III. 130, the court, in discussing a somewhat similar question, stated (p. 143): “But, as between himself and third parties, (the State in this case,) if the office * * * had a legal existence and plaintiff in error assumed the duties and discharged the powers and functions of the office he became a de facto officer, and cannot be permitted to deny his responsibility, while so acting, on the ground that he was not legally elected or appointed to said office.” That case is reported in 20 Am. Ann. Cas. 496, with a somewhat lengthy note at the close, in which the rule laid down in the opinion that a de facto officer is criminally liable for his acts of malfeaşance is supported by many decisions from other jurisdictions. In State v. Carroll, 38 Conn. 449, the court stated: “An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interest of the public and third persons, where the duties