
    * Commonwealth versus Samuel Silsbee.
    It is a misdemeanor at the common law for a citizen, who is a legal voter at a town-meeting, to give in more than one vote for a municipal officer, at one time of ballotting.
    The indictment charged that the defendant, being admitted as a legal voter at the town meeting holden on the 11th day of March, 1811, at Salem, for the choice of town officers, “ did then and there wilfully, fraudulently, knowingly, and designedly give in more than one vote for the choice of selectmen for said town of Salem, at one time of ballotting, — to the great destruction of the freedom of elections, to the great prejudice of the rights of the other qualified voters in said town of Salem, to the evil example of others in like case to offend, and against the peace and dignity of the commonwealth aforesaid, and the law of the same in such case made and provided.”
    After conviction, the defendant moved in arrest of judgment, on the ground of the insufficiency of the indictment.
    
      Dane for the defendant.
    Here is no offence charged. The defendant put more than one vote for selectmen into the box at one time. And he might well do this, since not less than three selectmen were to be voted for.
    The offence, if any is described in the indictment, cannot be such by the common law ; since that law knows nothing of the office of selectmen. If the offence is created by statute, the indictment ought to conclude contra formam statuti; and if the conclusion of this be considered so, it belongs to the government to produce the sta.ute against which the offence was committed. But none such can be found ; and the usual punishment applied to the act—'that of rejecting the party’s vote — is probably all that the government thought necessary or convenient.
    
      By the statute of 1795, c. 55, a fine, not exceeding 20 nor less than 10 dollars, was provided for such as should give in more than one vote in the election of state * officers It appears that the legislature did not contemplate that offence, though of a higher grade than that here intended to be prosecuted, worthy of the severe punishment which may by the common law be imposed on misdemeanors. Indictments of this kind are of late origin, which is an argument that they do not lie at common law.
    No fraud is alleged in the indictment; for as to the general words fraudulently, &c., they have no operation, being merely formal.
    
      The Solicitor-General insisted that this was-a fraud upon which the common law would animadvert. It was a direct infringement of the highest political rights of others. The indictment, as to its form, is conformed to the provisions of the statute of 1800, c. 74, respecting the votes to be given for the governor, &c., of the commonwealth. The mischief is growing in various parts of the commonwealth, and, unless restrained, will shortly destroy the purity of our elections ; and with that will go our most valued political institutions.
   Curia.

There cannot be a doubt that t^e offence described in the indictment is a misdemeanor at common law. It is a general principle, that where a statute gives a privilege, and one wilfully violates such privilege, the common law will punish such violation. In town meetings, every qualified voter has equal rights, and is entitled to give one vote for every officer to be elected. The person who gives more infringes and violates the rights of the other voters, and for this offence the common law gives the indictment; and the conclusion of the one at bar is proper for the case.

The defendant was adjudged to pay a fine of 10 dollars, with the costs of prosecution, 
      
      
         [Wherever a statute forbids the doing of a thing, or enjoins an act to be done, without pointing out any mode of punishment, an indictment will lie for disobeying it—1 Russ. C.L. 66.—In this case, there was no statute expressly forbidding o? enjoining the thing. The statute of 1800, c. 74, § 2, relating to election of state officers, requires the electors, respectively, to give in their votes for counsellors and senators on one list. There seems to be nothing to prevent the choice of selectmen of a town in the same way. And yet, in this way, each voter may, in strict compliance with the law, give in more than one vote for the choice of selectmen at one time of ballottiug; that is to say, one vote for each selectman to be chosen. — Ed.]
     