
    BEACH v. STATE.
    (No. 3194.)
    (Court of Criminal Appeals of Texas.
    Dec. 2, 1914.
    Concurring Opinion, Dec. 19, 1914.)
    Elections (§ 328) — Criminal Prosecution— SUFFICIENCY OE INDICTMENT.
    An indictment, charging that defendant, while acting as a precinct judge of an election, unlawfully made a false canvass of the votes cast in that precinct, in that he announced that a certain number of votes were cast for the several candidates for mayor, whereas in fact a different number of votes had been cast for each of them, if by “canvassing” was meant that defendant as one of the judges falsely called the ballots for tabulation, was insufficient, because not alleging the names of the voters so falsely called, and, if that could not be done, then that their names were unknown.
    [Ed. Note. — For other cases, see Elections, Cent. Dig. §§ 355, 357-363; Dec. Dig. § 328.]
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    S. D. Beach was convicted of making a false canvass of votes, and he appeals.
    Reversed,'and cause dismissed.
    Jno. C. Scott and G. R. Scott, Boone & Pope, all of Corpus Christi, for appellant.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, J.

The indictment charges . that an election was held in the city of Corpus Christi, at voting precinct No. 2, for the purpose of electing a mayor and four commissioners of the city of‘Corpus Christi, and that appellant was a judge of the election, and while acting as such he unlawfully and willfully made a false canvass of the votes cast at the .election in said precinct No. 2, in this: “That the said S. D. Beach did as one of the counting judges at said election, read and. announce 213 votes as being cast in said voting precinct No. 2 for Clark Pease for tbe office of mayor of tbe said city of Corpus Cbristi, 26 votes as being cast for II. R. Sutherland for tbe office of mayor of tbe said city of Corpus Christi, 17 votes as being cast for W. G. Blake for tbe office of mayor of tbe said city of Corpus Cbristi, whereas in truth and in fact there were cast at said election in said voting precinct No. 2 120 votes for said Clark Pease for tbe office of mayor,” etc., 112 votes for Sutherland, and 22 votes for Blake for tbe office of may- or, which canvass it is alleged was falsely made by appellant. Tbe indictment is attacked for various reasons. Tbe writer is of tbe opinion that it is not sufficient to charge tbe offense. If by “canvassing” it is meant that appellant, as one of tbe judges, falsely called tbe ballots for tabulation, then tbe indictment should have alleged the names of tbe voters so falsely called, and if that could not be done, then that tbe names were unknown. Whether tbe ballot box could be opened or not for tbe ascertainment of tbe truth or falsity of tbe allegation against appellant, all voters whose names were not erroneously called were entitled to protection under tbe Constitution and laws of this state from having the secrecy of their votes uncovered. Tbe Constitution protects by secrecy the ballot of all voters, and the Legislature, as well, protects tbe voters from having their ballots announced as found in tbe ballot boxes except in cases of contested elections. This was not a contested election, but a criminal prosecution. There is another reason why the names should be alleged; that is, that the defendant is entitled to be notified as to the basis of the allegations that he had falsely called names, in order that he might meet this on his trial. The indictment states nothing except conclusions, and notifies the defendant of nothing except that he had called over a certain number of names in favor of the different candidates, whereas in truth and in fact he had miscalled them so as to make the actual and truthful result different from that returned. It is hardly thought necessary to cite authorities on these questions. There are other questions suggested why the indictment is not sufficient, but in view of what is said we do not care to go further into those matters.

The state was permitted to introduce in evidence and open the ballot box containing the names of the voters at the election mentioned in the indictment. Various and sundry objections were urged to the introduction of this testimony. At this late date, in view of all the authorities, the Constitution and the statute, we are of opinion the court was clearly wrong, and the objections should have been sustained. Article 6, § 4, of the Constitution provides that voting shall be “by ballot.” That, of course, means a secret ballot. The same section and article of the Constitution provides that the Legislature may or shall enact suitable legislation to guard the purity of the ballot box. This is not only within the power of the Legislature, but it seems to be mandatory that it should be done. In accordance with these provisions of the Constitution the Legislature has enacted certain legislation with reference to the matter; among other things, that it is required that these boxes containing the votes shall be returned to the county clerk, who shall keep them 12 months, at the end of which time he “shall burn” the ballots. The Penal Code provides a heavy punishment against the clerk if he fails to destroy and burn these ballots at the end of the 12 months. There are other provisions of a kindred nature which we think unnecessary here to quote. The statute further provides the ballot box shall remain in the Keeping of the clerk for a term of 12 months, to be opened only within that time, and then only in case of contested .elections. This was not a contest, and the 12 months had long since elapsed at the time of the trial since the election was held. It is inferable from the record that there had been a contest over the offices prior to the time of this indictment. Of course, that litigation could only have occurred within the 12 months. There is evidence set out in a bill of exceptions disclosing that the ballots had not been destroyed, but on the contrary had been passed from hand to hand until finally the box containing the ballots was locked in the death cell in the jail and the key turned over to the district clerk, and it was from this receptacle the ballot box was brought and opened on appellant’s trial. It seems to be the well-settled rule under the decisions that when the 12 months have elapsed, the ballots cannot be used; they are legally destroyed, whether in fact they were actually destroyed or not. The rule is thus stated in 15 Gyc. 428:

“After the date when the statute requires that ballots shall be destroyed they have no legal existence, and are not admissible in evidence, no steps having been taken to have a lawful recount.”

This question was passed upon in State v. Bate, 70 Wis. 409, 36 N. W. 17. That applies in cases where the ballots were permitted legally to be used, as in election contests. But whether the ballot box had been opened or not, and whether the criminal prosecution occurred within 12 months, would make no difference, so far as this case is concerned, because the statute has limited the opening of the ballot box to contested elections, and the authorities hold that these ballot boxes cannot be opened or the ballots used as evi ■ dence in criminal cases. See State v. Taylor. 220 Mo. 618, 119 S. W. 373; Ex parte Arnold, 128 Mo. 256, 30 S. W. 768, 1036, 33 L. R. A. 386, 49 Am. St. Rep. 557. In the Tayl O’Case, supra, there are quite a number or decisions collated. This question seems to llave been decided in State v. Francis, 88 Mo. 557. Tbe Legislature by express authority of the Constitution is required to pass such regulations as may be deemed proper to guard the purity of the ballot box, and such incidental matters as that body may think necessary, right and proper. They have exercised their authority to the extent of authorizing ballot boxes to be opened within 12 months in contested election cases, but have not seen proper to go further. Their reasons for not making further provisions are unnecessary to discuss. That they have not done so settles the question, and in enacting legislation with reference to opening ballot boxes they imposed two conditions which are binding upon this court: First, ballot boxes cannot be opened except in election contest cases; and, second, this can only be done within 12 months; and to this may be added the third, that these ballots are required under criminal penalty to be burned at the end of 12 months, and if the clerk does not do so, he is subject to the punishment imposed in the Penal Code. In Ex parte Brown, 97 Cal. 83, 31 Pac. 840, these questions were discussed at length by the' Supreme Court of that state. The court was met with the question and suggestion that the public was as much interested in preserving the integrity of the ballots and the ballot boxes and in detecting and punishing fraud as they were in contested elections. The proposition seems to carry the idea that, while the Legislature had limited the matter as indicated in the statute, yet on account of the general public welfare and interest, the courts should go further and enlarge the rule by permitting the ballot boxes to be gone into in criminal prosecutions. -Quoting from that opinion we find this language:

“We are asked by counsel bow tbe declared intention of tbe Legislature to punish frauds by election officers can be reconciled with an intention to prevent the use of the best means of proving such frauds. It might as well be asked how the plain injunction of the statute that the ballots must be destroyed at the end of one year can be reconciled with the law which authorizes a prosecution to be commenced at any time within three years. Both these questions may be answered in the same way. The different provisions are in neither case absolutely inconsistent, and if it is true that the preservation of the ballots as the law directs is an obstacle to the enforcement of the newly provided penalties for frauds of election officers, this result flows from the fact that the Legislature, in this instance, as in so many others, has failed in revising the old law to co-ordinate its different parts so as to bring them into perfect harmony with its new policy. This failure of provision, however, if indeed there was such failure, cannot be remedied by the courts, but must be left to the Legislature itself for amendment. If it is thought necessary to make the ballots available as evidence in criminal proceedings, the Legislature can do so under such limitations and restrictions as may be deemed •essential to their integrity. The courts cannot open them for inspection without destroying all safeguards, except such as each particular judge-■who may order them into court shall see proper to apply, nor without impairing in all cases, and possibly destroying in many, their value as evidence for the only purpose for which the law has directed their preservation.”

From tbe Francis Case, supra, this quotation is made:

“But it is asked, Has the Constitution deprived the state of Missouri of the right to inspect the ballots, when she seeks to expel an intruder from office? Shall she not be permitted to have the ballots opened, when necessary to convict illegal voters? The Constitution names one class of cases in which they may be inspected, and, unless the supposed eases belong to that class, the state has no more right than an individual suitor to an inspection of the ballots. She is as much bound by the Constitution as any citizen, and if she has chosen, by her organic law, to tie her hands in this matter, it is not in our power to release her from restrictions she has imposed upon herself.”

These cases deal not only with the proposition that the Legislature limits the use of the ballot only to election contests and within 12 months, but is augmented further by the proposition of secrecy enjoined by the Constitution through “the ballot,” and it is only when the Legislature expressly authorizes the uncovering of this secrecy for such purpose as that body may deem proper that that secrecy can be removed. The voter has a right to have his vote protected against inspection, unless in guarding the purity of the ballot box the Legislature may provide means or methods for necessary occasions to uncover such secrecy. In the Arnold Case, supra, the Missouri court, as did the California court in Ex parte Brown, among other reasons, places it upon the same principle which prevents disclosures of confidential and privileged communications. The court said:

“There are, doubtless, many instances in which the evidence of a husband would convict the wife, or the wife’s would settle the guilt of her husband, and yet the law, in its wisdom, seals his or her mouth. Likewise the testimony of an attorney, priest, or physician may establish beyond all doubt the guilt of the client, penitent, or patient in a given case, and yet it is excluded. These exceptions are based upon the peace of society, but in the estimation of the people of Missouri good government itself is dependent upon absolute inviolability of the ballot, except in a ‘contested election,’ and then only under such safeguards as would insure both the secrecy of the ballot and absolute verification of the election as held by the people. These two considerations governed the convention in framing, and the people in adopting, the Constitution.”

In one of tbe cases the grand jury sought to use the testimony by opening up the ballots. This the court held could not be done, and that such testimony could not be used in criminal cases. In fact, following the legislative authority, the court holds that the ballot box can only be opened and used in contested election eases and cannot be used in criminal cases. The Legislature has not so provided. We are not without ample authority holding the same views in Texas, for in the case of Clary v. Hurst, 104 Tex. 423, 138 S. W. 566, the Supreme Court of this state announces the same rule in an able and exhaustive opinion delivered by Justice Ramsey. That opinion is in line with the anthorities, upholds the Constitution, and adheres to the statute. It is there held that the statute limits and restricts the opening of the ballot box and use of the ballots to contested election cases, and that this must occur within 12 months. The objection, therefore, urged by appellant to the introduction of the ballot box and the ballots before the jury, should have been sustained.

There are other interesting questions in the case, but they are somewhat corollary to the main proposition, and we deem it unnecessary to discuss them. But we will call attention to the fact that the judges and other officers who assisted appellant in holding the election were used as witnesses and testified to conversations they had among, themselves in z-egard to the manner of appellant calling the names of the ballots for the benefit of the tabulating clerks of the election; but they said nothing to him about it, nor did the assistant counting judges say anything, so far as we understand this record, but they testified that appellant may have heard what they had to say about it. If the other counting judges, whose business it was to see a proper count made, permitted ■ appellant to do so, believing he was doing wrong, and then sign, as all the officers did, the returns showing that appellant had miscounted, they would evidently be in the attitude of accomplices, for all those who signed the tally sheets, returns, etc., showing incorrect and fraudulent count of the vote, signed the same as being correct. The law charged them with the duty of seeing that the count was correct, vote correctly recorded, and correct returns made. On the trial they testified in effect what was fraudulent counting. We call attention to this in case of another trial.

For the errors discussed, the judgment is reversed, and the cause is dismissed.

HARPER, J.

I concur in the reversal of the case on account of defect in the indictment; but, the ballot box having been opened in a contest of the election, if the ballots inspected in this contest of the election show the court that a crime had been committed, the trial court could order the ballots preserved as evidence, and under such circumstances, the ballot box having been opened under the provisions of the statute, the ballots were properly admitted, and I will write my views in full later on.

PRENDERGAST, P: J.

I concur in the opinion as to the insufficiency of the indictment, but express no opinion on any other question.

IIARPER, J.

In this case. -I wish only to state my nonconcurrence in that part of the opinion which holds that the ballots were improperly admitted in evidence. By the record it is disclosed that there was a contest filed over the office of mayor, and the ballot boxes opened in the trial of that case. This the statute specifically authorizes to be done. The statute (article 3028) only provides for the burning of the ballots after 12 months, in ease no contest is instituted. In this case we know a contest was instituted; therefore the clerk would not be authorized to destroy the ballots during the pendency of that contest. And if in the trial of the contested election case the ballot boxes were opened, and by the ballots it was made manifest to the trial judge that a crime had been committed by some one, we think it his duty, as he apparently did in this instance, to have the evidence preserved to be used in a prosecution of whoever may have had a guilty participancy in the wrongful calling of the ballots and certifying to an improper return. The evidence (the ballots) having come into his possession in a legal way, the ballot box having been opened in the trial of the contested election case, the veil of the seoreoy of the dallot having already been legally torn aside, it was not improper to use the ballots in the trial of this case. We agree that if no contest had been instituted and the ballot box opened on the trial of that cause, the judge would have no authority to have had them opened in this trial. But no such question is before us, but a case where the ballot box had been opened under the specific authority and direction of the law; and, it having been done legally, it was legitimate and proper to make use of them in the trial of this case.  