Banner v. State , 44 Tex. Crim. 42 ( 1902 )

Appellants were charged with making false election returns in regard to the number of votes given in the race for district judge in Travis County, between F.G. Morris and A.S. Walker. Upon their conviction they were fined in the sum of $100 each.

The evidence shows, without conflict, that appellants were officers of the election and returned the poll lists and tally sheets, but did not make out the returns in triplicate form, as required by article 1743, Revised Statutes, which reads as follows: "When the ballots have all been counted, the managers of the election in person shall make out triplicate returns of the same, certified to be correct, and signed by them officially, showing, first, the total number of votes polled at such box; second, the number polled for each candidate, one of which returns, together with poll lists and tally lists, shall be sealed up in an envelope and delivered by one of the managers of election to the county judge of the county; another of said returns, together with poll lists and tally lists, shall be delivered by one of the managers of election to the clerk of the county court of the county, to be kept by him in his office open to inspection by the public for twelve months from the day of election; and the other of said returns, poll and tally lists shall be kept by the presiding officer of the election for twelve months from the day of election." As before stated, the evidence shows, without contradiction, that only the poll lists and tally lists were returned; that the county clerk had failed to furnish them the necessary blanks and forms for making out the returns mentioned in the statute; that these blanks and forms were sent to the officers of the election subsequent to the sending up of the poll lists and tally lists, but were not used by them, because they thought it was too late. Article 157, Penal Code, provides: "If any manager, judge, or clerk of an election shall knowingly make or consent to any false entry on the list of voters, or put into the ballot box, or permit to be put in, any ballot not given by a voter, or take out of such box, or permit to be taken out, any ballot deposited therein, except in the manner prescribed by law, or change any ballot given by an elector, or make any false return as to the number of votes given for or against any particular candidate, the person so offending shall be punished by fine not less than one hundred nor more than one thousand dollars." The evidence tends to show that there were erroneous entries made on the poll lists and tally lists, but it incontrovertibly shows that the false returns specified by the Civil Statutes were not made at all. In order for a person to be guilty under this article of the Penal Code, there must be a return, as provided by the Civil Statutes, and this return must be false, and it must be knowingly false. Under the facts of this case, if there was a violation of the law in regard to the returns, it would be under article 184 of the Penal Code, which imposes a penalty for the willful neglect of any duty enjoined by the statute. A person can not be punished for falsely doing a thing that he did not do; he must do the act first, and then the act must be done so as to bring it within the definition of the statute pronouncing the punishment.

The evidence does not sustain the conviction, wherefore the judgment is reversed and the cause remanded.

Reversed and remanded.