Commonwealth v. Gouger , 21 Pa. Super. 217 ( 1902 )

Opinion by

Rice, P. J.,

This is an appeal from an order quashing an indictment containing nine counts. It is contended that this .was an interlocutory order from which no appeal lies, because it was coupled with an order, made on the district attorney’s motion, directing the defendant to give bail for his appearance at the next term. This position is not tenable. The order was final although it did not have the effect of an acquittal of the defendant. Holding him to bail to answer a new indictment based on the same information and commitment orto answer the present indictment in case of reversal did not change the nature of the order. See Commonwealth v. Bartilson, 85 Pa. 482.

All of the counts of the indictments were evidently intended to be drawn under the Act of June 8, 1881, P. L. 70, entitled “ An act to prevent bribery and fraud at nominating elections, nominating conventions, returning boards, county or executive committees, and at election of delegates to nominating conventions, in the several counties in this commonwealth.”

The indictment alleges generally, that at a nominating or delegate election, commonly known as a primary election, held by the qualified electors of the Republican party at the several voting districts and precincts of the county, the defendant and David Ruckle were rival candidates for the office of county chairman of said party, that ballots were cast for each of them by the qualified electors at the said election, and that the defendant was returned and elected to the office.

Four of the counts allege that offers and promises of bribes were made by the defendant to four different electors of four different districts, on condition, in the case of one elector, that he should cast his vote at the election above referred to for the defendant for the office of county chairman, and, in the case of each of the other electors, that he should use his influence at the same election in favor of the election of the defendant to that office. In short, these counts charge bribery or attempted bribery of electors at an election of an officer of a party organization by direct vote of the qualified electors of the party. Upon appeal from an order quashing the indictment, we must assume that it correctly describes the nature of the election, to influence which the bribes were offered or promised. The fact that a primary election for the nomination of candidates for public offices to be filled at the ensuing general election was held at the same times and places and by the same officers at which and by whom the election of county chairman was held cannot affect the question for decision. The remaining counts, excepting the sixth, are of the same nature, and need not be noticed, further than to say, that if the four counts just referred to cannot be sustained, neither can they.

Do these counts charge indictable offenses ? The determination of this question requires us to construe the 1st section of the act of 1881.

Taking bribes by electors and corruptly influencing or intimidating electors were offenses punishable under the Penal Code of 1860, and earlier statutes. Speaking of these provisions the revisors said: “ The 50th and 51st sections will be found to be amendments of existing laws punishing the bribery of electors; a crime which saps the very foundation of our entire political system; substantially, they are the same as the 122d and 123d sections of the Act of July 2,1839, P. L. 546, except that the offenses have been more precisely defined and the punishments thereof made to bear a more just relation to the enormity of the crimes:” Report on the Penal Code, 20. It is apparent, however, that these provisions related to the election of public officers, and so far as we are aware were never understood to apply to primary elections. This was the view taken by the Supreme Court in Commonwealth v. Wells, 110 Pa. 463, where the subject of the application to primary elections of the provisions of the act of 1839 relative to wagering upon the result of “any election within this commonwealth ” was under consideration. See, also, Leonard v. Commonwealth, 112 Pa. 607, at p. 623. But as was forcibly declared by Mr. Justice Paxson in the case last cited, “ many of the frauds which affect elections, and sometimes thwart the will of the people, are perpetrated in what may be termed the preliminary stages of the election; in those proceedings by means of which candidates are selected for the people to vote for at the general election.” In another part of the opinion he says : “ In many portions of the state, as is well known, a nomination by a convention of one of the parties is practically the equivalent of an election; in some instances it is the precise equivalent, as in the case where there are two persons to elect, and the elector is allowed by law to vote for but one.” But, even leaving out of view these special instances in which the influence of the primary elections is the most potent, it is plain, that in a state, where, as a rule, public officers are selected from amongst candidates nominated by political parties, statutory provisions were not wholly adequate for the suppression of bribery, and the prevention of its influence upon the selection of public officers, which did not include the bribery of delegates to nominating conventions and the bribery of the electors, who, by direct vote, or through delegates chosen by them, nominate the candidates to be voted for. As we have seen, the act of 1860 did not include this form of bribery. The act of 1881 was passed to remedy this and other defects in existing laws. The things, which the 1st section forbids “ a candidate for any office within this commonwealth ” to do, are the giving, offering or promising to give, and the procuring of another to give, offer or promise to give, to any elector, any gift or reward, etc., “ on condition that such elector shall cast, give, retain or withhold his vote, or use his influence at a nominating election or delegate election, or cast, give or substitute another to cast or give his vote or use his influence at a nominating convention, for or against the nomination of any particular candidate for nomination, so as to procure such person to be voted for, at any election to take place.” The manifest purpose of the legislature was to prevent bribery in the nomination of candidates to be voted for at a subsequent election, and to carry out this purpose this section was so framed as to apply to cases where, by the rules of a party, its candidates for public office are nominated by direct vote of the electors of the party, as well as to cases where they are nominated by a convention of delegates. As would be expected from a reading of the title of the act, the section relates to bribery, at “nominating elections,” at “nominating conventions,” and at the “ election of delegates to nominating conventions,” and we can find nothing in the body of the act which clearly shows that the legislature intended the section to have a broader scope than is indicated by the title, and to apply to an election of officers of a party organization by direct vote of the qualified electors of the party. We fully appreciate the force of what the commonwealth’s counsel say as to the importance to the whole body politic of placing the same safeguards around such an election as this section provides for the prevention of bribery at nominating elections, delegate elections and nominating conventions. Speculation as to whether the omission of the legislature to do so was the result of accident or was intentional would not be profitable ; for in either case the omission is not one which the courts may supply by construction.

In a statute the meaning of words may be this or that, according to the subject, context and other particular circumstances. The province of the courts is to determine the meaning the legislature intended them to have. The rule of strict construction in favor of the accused is not violated by giving the words a reasonable meaning, according to the sense in which they were intended, even though in a different connection a more restricted meaning would be ascribed to them. “Strict construction is not the same thing-as construing everything to defeat the action,” or, we may add, the prosecution. “This is not what is meant by the expressionThompson, J., in Bartolett v. Achey, 38 Pa. 273. In the construction of statutes it may sometimes become necessary to transpose words or even to supply or strike out a word which the context shows was omitted or inserted by mistake. Instances are not lacking in the reports where this has been done in order to effectuate the intention of the legislature. But where an enactment is plain and sensible, and, according to any meaning, broad or narrow, popular or technical, which may be ascribed to the words, does not apply to the case in hand, it is not permissible for the courts to add or omit words, in order to make it so apply, even though it may be clear to them that the case is as fully within the mischief to be remedied as the cases provided for. This would be, not to construe, but to amend the law, which is within the exclusive province of the legislature.

“ Whatever may have been the legislative thought, no ambiguity exists in what they have said, and where the words of a statute are plainly expressive of an intent, the interpretation must be in accordance therewith Thompson, J., in Bradbury v. Wagenhorst, 54 Pa. 180. The rule of strict construction, which is applicable here, requires, at least, that no case shall fall within a penal statute which does not comprise all the elements which, whether morally material or not, are in fact made to constitute the offense as defined by statute: Endlich on Interpretation of Statutes, sec. 834. Hawkins states the rule thus: “No parallel case, which comes within the same mischief, shall be construed to be within the purview of it (the statute), unless it can be brought within the meaning of the words: ” 2 Hawkins, P. C. (Curw. ed.) p. 188, sec. 16. Therefore if a case is fully within the mischief to be remedied, and is even of the same class and within the same reason as other cases enumerated, still, if not vrithin the words, construction will not be permitted to bring it within the statute: Bishop on Statutory Crimes, sec. 220. Courts are less ready to extend criminal statutes, to include cases within the mischief, but not the words, than to restrain them so as to exclude cases within the words, but not the mischief: Rex v. Parker, 2 East P. C. 592. When a court has gone to the verge of its powers of construction, there will some times remain what is termed a casus omissus — a case within the mischief to be remedied and possibly within the general intent of the legislature as disclosed by the act — and yet not provided for therein. In such case the legislature alone can cure the defect. See Bishop on Statutory Crimes, sec. 146. Applying these familiar principles to the case in hand, we are compelled to hold that the counts thus far discussed do not charge offenses made punishable by the act of 1881, supra.

The sixth count was evidently intended to be drawn under the second paragraph of the 6th section of the act, which makes it a misdemeanor for any person, whether a candidate for office or not, by the offer or promise of money, office, appointment, employment, testimonial, reward or other thing of value, or by threats or intimidation — we quote from the language of the act — to “ endeavor to influence a member of a county or executive committee of any party, a judge or clerk of any return board, in the discharge, performance- or nonperformance of any act, duty or obligation pertaining to such office.” This count charges that Harry E. Seidel was a member of the county or executive committee of the Republican party of Montour county for the second ward of Danville, that by virtue of his said office he was a member of the election board of the said ward at the primary election held on August 2, 1901, and as such exercised supervision and control thereof, and that, prior thereto, the defendant, by the offer and promise of money endeavored unlawfully and corruptly to influence Seidel “ as a member of the said executive committee to have the vote of the said ward east and counted in his favor for the said office of county chairman and against his rival David Ruckle at the said election.” That, to offer a bribe to a member of a county or executive committee of a party, whose duty as such officer is to conduct a party primary in a particular district, to have the vote of that district at such election counted for a particular candidate for office in the organization is made a misdemeanor by this section, and that this offense is charged with substantial accuracy in the sixth count of the indictment cannot be seriously questioned. A member of an election board who upon the promise of a bribe undertakes to use his influence as such officer to have the vote of his district cast and counted for a particular candidate is not in a condition of mind to perform the duties devolving upon him “ impartially and faithfully,” as his oath requires. The purpose of this section is to prevent candidates, as well as others, from subjecting him to a temptation which may be more potent than his oath. Nor is there such variance between the indictment and the information, or, indeed, between the indictment and the evidence given at the preliminary hearing, as shown by the transcript, as would warrant the quashing of this count upon the ground that it required the defendant to answer a charge for which he was not arrested or held to bail. An indictment need not conform precisely with the phraseology of the information, provided the offense charged is the same in substance. Of such a case the present chief justice said: “ The fact that the information did not contain as full and specific a statement of the offense as the indictment did, furnished no ground for quashing the latter or either count of it. If there was room for surprise an application for time to meet the graver charge would have been allowed : ” Commonwealth v. Carson, 166 Pa. 179. We need not take up further time and space in the discussion of this question, for it was not claimed in 'the reasons assigned in support of the motion to quash that this count is not supported by the information. When the learned judge said that the indictment contained charges which were not preferred before the committing magistrate he evidently referred "to those counts to which this objection was specifically made, and not to the sixth count.

It is urged that even if each of the counts, as a separate indictment, would be good, yet the indictment as a whole was bad because of the joinder therein of several distinct offenses. We cannot assent to this proposition. It is well settled that it cannot be objected in error, or on demurrer or in arrest of judgment that two or more offenses of the same nature on which the same or similar judgment may be given are contained in different counts of the same indictment: Commonwealth v. Gillespie, 7 S. & R. 469 ; Harman v. Commonwealth, 12 S. & R. 69; Commonwealth v. Sylvester, Brightly’s Rep. 381; Henwood v. Commonwealth, 52 Pa. 424; Commonwealth v. Birdsall, 69 Pa. 482 ; Commonwealth v. Stahl, 1 Pa. Superior Ct. 496. See also Stevick v. Commonwealth, 78 Pa. 460 ; Hunter v. Commonwealth, 79 Pa. 503; Staeger v. Commonwealth, 103 Pa. 469; Commonwealth v. Rockafellow, 3 Pa. Superior Ct. 588, 596; Commonwealth v. Liebtreu, 1 Pears. 107. As to quashing an indictment for this cause, some of the earlier decisions made a distinction between felonies and misdemeanors. But as all of the offenses which this indictment charges are misdemeanors, we are not required to consider to what extent this distinction is still recognized. It is further to be noticed that the distinct acts charged in the several counts of the indictment were not unrelated in nature, purpose or effect. All of them are alleged to have been committed to influence the same election and to accomplish a single result, namely, the election of the defendant to the office of county chairman. Such being the case, it is clear, both upon reason and upon authority, that the inclusion of these charges in several distinct counts of the same indictment was not such misjoinder as would make it necessary or proper for the protection of the defendant to quash the indictment: Chitty, Crim. L. 254; 1 Bishop, Crim. Proc. sec. 452; 1 Whart. Crim. L. (7th ed.) sec. 414; Commonwealth v. Gillespie, 7 S. & R. 469, 476. It is to be observed further, that the court did not quash the indictment upon this ground.

One other objection remains to be noticed. The information charged the making of offers or promises of bribes to three different electors, naming them, and the making of similar offers and promise to divers electors, whose names were not given. At the hearing before the committing magistrate, as stated in his transcript, no evidence was offered other than that which appertained to two of the electors specifically named, but the transcript does not clearly and unequivocally show that the charge as to the other electors was withdrawn by the prosecutor or dismissed by the magistrate. The indictment, as we have seen, charges the making of offers or promises of bribes to the two electors last referred to, to one elector specifically mentioned in the information, but as to whom no evidence was given at the preliminary hearing and to another elector who was not specifically mentioned by name in the information. Five months elapsed between the finding of the indictment and the motion to quash, and in the mean time the cause was twice continued.

Strictly speaking the two counts last referred to do not contain charges not preferred before the magistrate, and it would be an unwarranted extension of the rule laid down in Rowand v. Commonwealth, 82 Pa. 405; Commonwealth v. Green, 126 Pa. 531, and kindred cases, to make the sufficiency of the evidence given on the preliminary hearing the test by which to determine the validity of the action of the district attorney in sending the indictment before the grand jury. But be that as it may, viewing the information as a whole, and giving it a reasonable intendment, and looking also at the transcript, the objection under consideration was, at the utmost, valid as to the seventh, eighth and ninth counts only.

It has been said that if there be one good count, the motion to quash, as a general rule, will not be sustained. In a case where the court had quashed an indictment containing two counts, the Supreme Court, in reversing the order and reinstating the indictment, said: “ It is unnecessary to express an opinion on the first count of this indictment, as it is clear the second count is good: ” Commonwealth v. McKisson, 8 S. & R. 420. But the rule as above stated is not unbending and does not prevent the quashing of the objectionable counts. “ In clear cases, a judge may, at his discretion, quash a defective count in an indictment without quashing the entire indictment: ” 1 Whart. Crim. L. (7th ed.) sec. 522. It does not follow that because a count is quashed a subsequent count, referring to the day, place, person or property described in the bad count must also be quashed: Commonwealth v. Kaas, 3 Brewst. 422. In Commonwealth v. Bartilson, 85 Pa. 482, where the entire indictment was quashed, the Supreme Court decided that the second count was good and the first count bad and reversed the order so far as it applied to the second count. It is unnecessary to cite other authorities upon this point. The rights of the defendant in this case would have been fully protected by quashing the bad counts, leaving the good count or counts to stand. We think the order should have been so qualified.

The order so far as it relates to the sixth count is reversed, and so far as it relates to the other counts is affirmed, and the record is remitted to the court below with a procedendo.