
    HELLER v. STATE.
    (No. 11144.)
    Court of Criminal Appeals of Texas.
    Dec. 14, 1927.
    1. Elections ¡§=>328(2)— Complaint and information for illegal voting held sufficient as against objection that it failed to charge that defendant voted or attempted to vote in another’s name, or attempted to .vote in own name more than once (Pen. Code 1911, art. 221; Pen. Code 1925, art. 241).
    Complaint and information, which alleged that defendant “did then and there, after having once voted at said election, as aforesaid, to wit, in [certain precinct], ⅜ s ⅜ vote and attempt to vote again at said primary election in [another precinct],” helé sufficient, as against objection that it did not charge that defendant voted or attempted to vote in name other than his own, or. attempted to vote in own name more than once; prosecution not being under Pen. Code 1911, art. 221, but under Pen. Code 1925, art. 241.
    2. Criminal law <§=>419, 420(12) — Unsworn ex parte statement in return on subprana was inadmissible.
    Unsworn ex parte statement, in return on subpoena, that witness was not found in certain city or certain county, was inadmissible in evidence.
    3. Criminal law <§=>308 — Law presumes that defendant did not vote or attempt to vote twice gt election as charged (Pen. Code 1925, art. 241).
    Law presumes that defendant, after having voted once at primary election, did not vote or attempt to vote again in another precinct, as charged in prosecution under Pen. Code 1925, art. 241.
    4. Elections <§=>329* — Evidence held not to sustain conviction of illegal voiing (Pen. Code 1925, art. 241).
    Evidence helé not to sustain conviction of illegal voting by one charged with voting twice at same election, contrary to Pen. Code 1925, art. 241.
    Commissioners’ Decision.
    Appeal from El Paso County Court at Law; J. M. Denver, Judge.
    Peter Heller was convicted of illegal voting, and he appeals.
    Reversed and remanded.
    W. W. Bridgers, W. O. Hamilton, and S. P. Weisiger, all of El Paso, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, illegal voting; punishment, $250 fine.

It is urged that, the prosecution being under article 221 of the Penal Code, the complaint and information is insufficient, in that it does not charge that the appellant voted or attempted to vote in any other name than his own, and does not charge that he attempted to vote in his own name more than once. The prosecution was not under said article. Article 221, Penal Code, 1911, was carried forward and incorporated in article 241, Penal Code 1925, and is as follows:

■ “Whoever at a general, special or primary election votes or attempts to vote more than once shall be fined not less than one hundred nor more than five hundred dollars.”

The particular part of the information alleged to be deficient reads:

“Did then and there, after having once voted at said election, as aforesaid, to wit, in precinct numbered 36, unlawfully, willfully, and knowingly vote and attempt to vote again at said primary election, at said precinct numbered 1.”

A part of the old article 221 has been dropped in the 1925 revision, which seems to have been overlooked by appellant’s counsel. As against the objection urged, we think the information and complaint were sufficient.

<[2-4] The serious question in the ease is the sufficiency of the evidence. A primary election for the nomination of city officers for the city of El Paso was held February 11, 1927. It was the theory of the state that appellant, holding a valid poll tax receipt, voted at said election a legal ballot in election precinct No. 36, and afterwards illegally voted or attempted to vote on the same day under the name of Robert Allman in election precinct No. 1. The record shows that a poll tax receipt was issued to one Robert Allman, residing at 315½ S. El Paso, and that some one by that name voted No. 84 in said precinct No. 1. It is nowhere shown that Robert Allman did not cast this vote. The return on a duces tecum subpoena issued for Robert Allman was offered in evidence, which return reads, “Not found in city or county of El Paso, state of Texas.” This subpoena and return thereon was dated April 1, 1927, and the offense was alleged to have been committed February 11, 1927. This unsworn ex parte statement on the return was inadmissible ; but, if given effect, it would only prove he was out of the county on April 1, and certainly would not be proof that he was not in El Paso on' the preceding February 11. This was the state’s only proof as to Allman’s whereabouts on February 11.

The appellant was seen to go into the polling place, remain a few minutes, and return. Upon being accosted, he at first gave his name as Robert Allman, but subsequently gave his true name, and denied that he had voted. This was brought out by the state. All of the election officers who testified deny any knowledge of whether he did or did not vote, or attempt to vote, in precinct No. 1. They seem to have no recollection about the matter whatever, and nobody testified to having seen him deposit or attempt to deposit a ballot, or in possession of a ballot about said polling place. Tlie presumption of law with appellant is that he did not vote, or attempt to vote. If there is any evidence in the record to overcome this presumption, we have been unable to find it. It may be that Robert Allman was present and did in fact vote ballot No. 84, and to our minds there is not the slightest evidence to show that such was not a fact. The state failed to show, either in a negative or in an affirmative way, the guilt of the appellant.

Because of the insufficiency of the evidence, the judgment is reversed,, and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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