
    INDICTMENT — FALSE REGISTRATION.
    [Hancock Circuit Court,
    May Term, 1896.]
    Seney, Day and Price, JJ.
    Joseph E. Ebbenpowell v. State of Ohio.
    1. Indictment eor Falsely and Fraudulently Obtaining Registration.
    An indictment under sub-division three of see. 2926w, for falsely and fraudulently obtaining registration, which alleges that defendant represented to the registrars that he was a qualified elector of precinct “A” of the Third Ward in the city of Findlay, Ohio, and that he did then and thereby falsely, fraudulently and unlawfully obtain registration, as an elector in said precinct, is bad on demurrer.
    • 2. Indictment Failing to Contain a Sueeicient Avebment oe Facts is Bad.
    That part of an indictment wherein the grand jury makes its general finding as to the guilt of the accused, is simply a conclusion, and if it is not preceded by sufficient averment of the facts to sustain'such conclusion, the indictment is bad.
    ERROR to the Court of Common Pleas of Hancock county..
   Price, J.

The plaintiff in error was indicted at the January term of the court below of the present year, for false and fraudulent registration, to which charge he plead not guilty, and the case was continued to the March term, when leave was obtained to withdraw the plea of not guilty, and file a demurrer to the indictment. This was done, and the court overruled the demurrer, and the plea of not guilty, was renewed, and the ease went to trial, and the jury returned a verdict of guilty, as charged in tbe indictment. Tbe court sustained tbe verdict and passed sentence of imprisonment of one year in tbe penitentiary.

Error is prosecuted in tbis court to reverse tbe judgment and proceedings below, and a great many things are assigned for error, among wbicb are tbe overruling of tbe demurrer to tbe indictment, tbe unconstitutionality of tbe registration law of tbis city (Findlay), errors committed during tbe trial, and so on.

If the demurrer to tbe indictment ought to be sustained, we need not consider tbe other questions presented by tbe record.

Tbe prosecution is founded on sub-division 3 of see. 2926w, which reads:

“Whoever falsely and fraudulently obtains registration, as an elector in any precinct in wbicb be is not a resident and qualified elector, shall be imprisoned in tbe penitentiary- not less than one nor more than three years. ’ ’

Tbe indictment charges:

“That Joseph E. Ebbenpowell, late of the county of Hancock aforesaid, on tbe 25th day of October, in tbe year of our Lord, one thousand eight hundred and ninety-five, at tbe county of Hancock, aforesaid, said day being one of tbe days fixed and authorized by the law of tbe state of Ohio for the registration of tbe electors of the city of Findlay, in said county and state, not then and there being a resident and qualified elector of precinct ‘A’, of the Third ward, of tbe city of Findlay, Ohio, did appear before tbe duly appointed qualified and acting registrars of election in said precinct ‘A’ of the Third ward of said city of Findlay; and did then and there represent that be tbe said Joseph E. Ebbenpowell, was then and there a qualified elector of said precinct ‘A’ of tbe Third ward in said city of Findlay, Ohio, and then and thereby falsely, fraudulently and unlawfully, did obtain registration as an elector in said precinct ‘A’ of tbe Third ward of the city of Findlay, in wbicb, then and there be was not a resident and qualified elector, contrary to tbe form of tbe statute in such ease made and provided, and against tbe peace and dignity of tbe state of Ohio. ’ ’

Does tbis indictment allege facts sufficient to charge a violation of tbe statute already quoted?

Tbe rule still prevails, that it is necessary to aver in an indictment, each material fact to be established at the trial, — not tbe evidence to support tbe facts, but all tbe material facts necessary to constitute tbe crime.

Our criminal code has not changed or modified tbis principle of pleading, so long recognized and enforced.

In the case of Ellars v. The State, 25 O. S., 385, our supreme court has clearly stated tbis rule.

On page 388, tbe court say:

“It is a well settled rule of criminal pleading, that an indictment must aver, with reasonable certainty, all tbe material facts wbicb are necessary to be proven, to procure conviction, and tbis rule has not, in our opinion, been changed by tbe code of criminal procedure.”

Tbe rule is stated in another form when we say, that tbe purpose of tbe indictment is to inform tbe accused of tbe nature of tbe offense charged against him, and advise him of tbe facts expected to be established at tbe trial.

Hence it is that our courts have repeatedly held, that that part of an indictment, wherein the grand jury makes its general finding as to the guilt of the accused, is simply a conclusion, and, if it is not preceded by sufficient averment of the facts to sustain such conclusion, the indictment is bad.

Looking again at the statute we find that the crime defined, is the falsely and fraudulently obtaining of registration. Each of these qualifying words has significance in the language of the statute, for. it implies that there may be registration by mistake, or without any fraudulent purpose or intent. The charge, and the only charge of false representation to the board is, that, he, Ebbenpowell, appeared before it and ‘ ‘ did then and there represent that he, the said Ebbenpowell, was then and there a qualified elector of said precinct ‘A,’ etc.” This is all the representation charged that he made, and it is not charged that it was “falsely and fraudulently” made. For aught that appears in the indictment, the representation that he was a qualified elector, might have been honestly made; or, such a representation might.be a matter of opinion, for a mere mistake in which a party is not subjected to punishment. It is not charged that he told the registrars that he was a resident of the precinct ‘A’, of the third ward, nor is there any other fact given upon which he obtained registration.

Let us see who is a qualified elector. His character is defined in see. 1, article 5, of the constitution of the state, which is:

“Every male citizen of the United States of the age of twenty-one years, who shall have been a resident of the state one year next preceding the election, and of the county, township, or ward in which he resides, such time as may be provided by law, shall have the qualifications of an elector and be entitled to vote at all elections. ’ ’

Here we have the several conditions upon which suffrage is based and, of course, upon which the right of registration is also based. What one of these conditions was represented to the registrars, according to the indictment? None. What important or essential fact wras represented? Nothing but the statement that he was a qualified elector of that precinct. Subdivisions 2 and 3 of see. 2926i, Rev. Stat., prescribe the mode of registration — the making up of the record by questions and answers, and how the same shall be signed by the applicant.

By subdivision 2, it is required that the registrars shall,

“In the presence of the applicant, enter in the registers, his answers to their questions pei'tinent to the heading of each eolumn, in their order. * * * In the column as to ‘residence’ shall be stated the name of the street, avenue, alley or way in which his dwelling is located, * * and the number of the house if it have one. * * * In the column as to term of residence the period of years and months of his residence in the precinct and the state must be stated.”

It must appear, also, whether the applicant is a native or naturalized citizen. When all this information shall have been entered, it must be signed by the applicant.

Now, what one of the representations so entered do we find in this indictment?

Did he represent even, that he was a resident of precinct ‘ A’ ? Did he represent anything as to his nativity — whether a citizen of the United States, — whether foreign born, — if so if he had been naturalized ? Did he represent his age, or term of residence in the state, county or precinct? On all these things the indictment is silent, and yet their disclosure to the board, are the legal means whereby registration is obtained.

John Poe, E. T. Bunn, W. M. Betts, Attorneys for Plaintiff in Error.

Theodore Totten, W. H. Kinder, Attorneys for the State.

With the careful guards placed upon the right to register and vote, and that too, by a record, there is no reason of either public policy or necessity to excuse compliance with the ordinary rules of criminal pleading.

. On the representation of the accused alone, that he was an elector, he could not have obtained registration, because that would be the expression of a conclusion, or opinion merely. There might well be circumstances where an applicant could, in good taith, make that statement, and yet be mistaken in his judgment, and not liable to a criminal prosecution. This plaintiff in error may have made the false statements which would render him amenable to law, and for which he should answer, but they are not embraced in this indictment. For want of a sufficient indictment, the judgment of the lower court is reversed, and the verdict set aside.

The demurrer to the indictment is sustained, and the prisoner discharged. We have not found it necessary to consider or decide the other questions raised and argued.  