
    Carter v. The State.
    
      Indictment for Illegal Voting.
    
    1. Sufficiency of indictment. — An indictment which alleges that the defendant, “not being of the age of twenty-one years, did unlawfully deposit his ballot, as his vote, at a general election held in said county on the third day of November, 1874, contrary to law,” &c., is bad on demurrer: it should describe the election, or the purposes for which it was held, with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment.
    2. Illegal voting ; what constitutes offense; relevancy of evidence as to age of voter. — A minor can not be convicted of illegal voting, if he honestly believed that he was twenty-one years of age when he voted (Gordon v. The State, 52 Ala. 308); hence, the fact that his father told him, before he voted, that he was twenty-one years old, is relevant and admissible evidence for him.
    FROM tbe Circuit Court of Talladega.
    Tried before tbe Hon. Jons HendersoN.
    Tbe indictment in tbis case contained two counts; but a demurrer was sustained as to tbe first count, and tbe trial was bad on tbe second count only, wbicb alleged, tbat tbe defendant, Dennis Carter, alias Dennis Knox, “ not being of tbe age of twenty-one years, did unlawfully deposit bis ballot, as bis vote, at a general election field in said county on tbe 3d day of November, 1874; contrary to law, and against tbe peace,” &c. Tbe defendant demurred to each count in tbe indictment, “ on tbe ground tbat neither of them charged an offense known to tbe law.” Tbe court sustained tbe demurrer as to tbe first count, and overruled it as to tbe second; and tbe defendant thereupon pleaded not guilty as to tbe second count, and tbe trial was bad on issue joined on that plea.
    On the trial, as the bill of exceptions shows, after the evidence for the prosecution was closed, the defendant introduced Harry Knox as a witness, who testified, that he was the defendant’s father, and that on the “ day of the general election in November, 1874,” the defendant came to him, in the town of Talladega, and asked him if he was old enough to vote; and that he replied, after counting up the time, and consulting with Alfred Knox, that he was twenty-one years old. The defendant afterwards introduced said Alfred Knox as a witness, who testified that, on the occasion referred to, he heard the defendant ask his father if he was old enough to vote, and assisted his father in counting up the defendant’s age, and heard his father tell him that he was old enough to vote. “The State objected to this evidence; the court sustained the objection, and excluded the evidence; to which the defendant excepted.”
    The court charged the jury, that if the defendant “ voted at said election, not being twenty-one years old at that time, he was guilty of a violation of the law, and should suffer the penalty.thereof. The defendant excepted to this charge, and requested the court to instruct the jury, “ that a criminal intent is a necessary ingredient of every indictable offense; and unless they find from the evidence, beyond a reasonable doubt, that the defendant willfully voted with intent to violate the law, they must find him not guilty.” The court refused this charge, and the defendant excepted to its refusal.
    George W.. PARSONS, for the defendant.
    John "W. A. Sanford, Attorney-General, for the State.
   MANNING, J. —

The trial of this cause was upon the second count in the indictment, charging “ that before the finding of the indictment, Dennis Carter, alias Dennis Knox, not being of the age of twenty-one years, did unlawfully deposit his ballot, as his vote, at a general election held in said county on the ,3d day of November, 1874, contrary to law,” &c. This indictment does not show for what the election was held, at which it is alleged that defendant voted while under the age of twenty-one years. It was at a general election held in said county; but the election may have been one held at the suggestion of the county authorities, for the purpose of ascertaining the wishes of the people with respect to the building of a bridge, or the erection of a new court-house, or of appointing a delegation to aid in procuring tbe passage of some act of tbe legislature in wbicb much interest was taken. Tbe indictment ought to have shown that tbe election (general or special) was one for county or State officers, or for what officers it was held, in order that tbe court might see, with that degree of certainty wbicb would enable it on conviction to pronounce 'the proper judgment, what tbe offense charged really was.

Tbe court erred in excluding what it was proposed to prove by tbe witness Alfred Knox. This evidence was offered to establish tbe fact that accused was informed by bis father, before be voted, that be was twenty-one years old. Tbe testimony was competent, though tbe jury were not bound to conclude from it that defendant really believed be was of that age. It was for them, from all tbe testimony, by a comparison of tbe various parts of it,, and from tbe manner of tbe witnesses in testifying, and their relations with each other, and their character, to determine whether tbe conversation was bad with a view to providing a defense in case of prosecution, or whether in good faith the defendant believed, when be cast bis vote, that be was a qualified voter; for, if be honestly believed that be was old enough to vote, be is not liable to punishment for having voted.— Gordon v. State, 52 Ala. 308.

For this reason, tbe court erred also in its charge to tbe jury, and its refusal to qualify it as asked to do for tbe defendant.

Tbe judgment must be reversed, and tbe cause remanded. Let tbe prisoner remain in custody, until discharged by due course of law.  