
    [Crim. No. 136.
    Department One.
    March 13, 1897.]
    THE PEOPLE, Respondent, v. JAMES EAGAN, Appellant.
    Criminal Law — Election Frauds — Indictment — Conspiracy — Completed Offense—Duplicity.—An indictment under the “Act to promote the purity of elections,” charging that six defendants, who were officers at an election precinct, confederated and conspired together to sign, certify, and attest, as true and genuine, the tally lists and returns of the precinct, each knowing that the returns signed and certified by him were false and untrue in certain particulars specified, in falsely increasing the votes of one candidate for county clerk, and falsely diminishing the votes of another candidate for the same office, does not state a conspiracy as a substantial offense, but charges only one completed felony, in which the precedent acts of conspiracy were merged, and is not demurrable for duplicity.
    Id.—Insufficiency of Circumstantial Evidence — Opportunity for Fraud—Facts Consistent with Innocence—Failure of Proof— Question of Law.—Circumstances relied upon to establish the guilt of one accused of crime must not only be consistent with that hypothesis, hut also inconsistent with any other rational conclusion; and, where there were other election officers, who were not before the court, but who had equal opportunity for fraud with the defendants charged with the offense, the mere testimony of each of five codefendants as witnesses for the people, that he had himself honestly performed his part of the work, is insufficient to convict the other defendant, there being no evidence, aside from error in the returns, that the other defendant ever indicated, by word or act, an intent to falsify the vote, or that he had any motive to do so; and he, having testified in his own behalf that he had honestly performed his part of the work, and had no knowledge of any error when he joined in certifying the returns; but, in such case, every fact proved is consistent with the reasonable conclusion that the false return resulted, without his connivance, from the acts of persons who had equal opportunity with him, and, there being no evidence to exclude this inference, there is a failure of proof in a particular necessary to conviction, and the question is one of law for the court.
    Appeal from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. George H. Bahrs, Judge.
    The facts are stated in the opinion.
    
      Dunne & McPike, and S. H. Regensberger, for Appellant.
    The information charges more than one offense, and is, therefore, obnoxious to the criticism of duplicity made by the demurrer. (Pen. Code, sec. 954; People v. Alibez, 49 Cal. 452; People v. Hood, 6 Cal. 236; People v. Lee, 107 Cal. 477; People v. Aro, 6 Cal. 208; 65 Am. Dec. 503; People v. Ward, 110 Cal. 369.) The facts proven are entirely consistent with the defendant’s innocence, and, therefore, are not sufficient to sustain a conviction. (People v. Gosset, 93 Cal. 641-44.)
    
      Attorney General W. F. Fitzgerald, and Deputy Attorney General Charles H. Jackson, for Despondent.
    The information charges but one offense, and is sufficiently specific. (People v. Edson, 68 Cal. 549; People v. Marseiler, 70 Cal. 98; People v. Donaldson, 70 Cal. 116; People v. Rogers, 81 Cal. 259; People v. Forney, 81 Cal. 118; People v. Russell, 81 Cal. 616; People v. Savercool, 81 Cal. 650; People v. Tonielli, 81 Cal. 275; People v. Mahlman, 82 Cal. 585; People v. Naylor, 82 Cal. 608; People v. Harold, 84 Cal. 567; People v. Keeley, 81 Cal. 210.)
   Britt, C.

Six persons, inclusive of appellant, who were officers of election in and for a certain precinct of the city and county of San Francisco at the general election held November 6, 1894, are jointly accused by the indictment in this cause of felony committed in violation of the “Act to promote the purity of elections.” (Stats. 1893, p. 24.) Eagan was tried separately and convicted.

1. It is provided in section 27 of said act that “ Every person who willfully adds to or subtracts from the votes actually cast at an election, in any official or unofficial returns, or who alters such returns, is punishable by imprisonment, etc.” Disentangled from the verbiage with which it is embarrassed, the substance of the charging part of the indictment is that defendants confederated and conspired together to sign, certify, and attest, as true and genuine, the tally lists and returns of said election in said precinct, and did knowingly act in violation of the laws relating to elections, by signing, certifying, and attesting, as true and correct, tally lists and returns which showed that M. 0. Haley had received sixty-three of the votes cast at said election in said pre-cinct for the office of county clerk, and that 0. F. Curry had received one hundred and forty-three of such votes; whereas in truth and in fact Haley had received ninety-one votes for said office, and Curry had received one hundred and two votes; that each of the defendants knew the returns signed and certified by him to be false and untrue in the particulars specified, contrary to the form of the statute, etc. The indictment might have been improved in the quality of distinctness, but there is no duplicity in it as urged by appellant; the defendants are accused of a single offense, viz., adding to the votes cast for Curry and subtracting from those for Haley, contrary to the provision of said section 27. The allegation that the defendants confederated and conspired, etc., was not the statement of a substantive offense, as appellant supposes; a completed felony was charged, and in this the precedent acts of conspiracy were merged; when several acts together constitute one offense, they may be alleged in a single count, and the present indictment does no more than this. (1 Bishop’s Criminal Procedure, sec. 438; People v. Gusti, 113 Cal. 177.)

2. But our examination of the record has compelled the conclusion that the evidence did not warrant the verdict of guilty. The board conducting the election at said precinct consisted of three inspectors and three judges; there were besides six clerks; Eagan was one of the inspectors; the law (Pol. Code, sec. 1142) allows members of the board to relieve one another in the duty of canvassing the vote, but requires the final certificate to be signed by a majority of the whole. The offices to be filled at said election were numerous, and the count of the vote proceeded continuously for more than thirty hours after close of the polls. The only part taken by Eagan in the count was “calling off” for a few hours; that is, he read from the ballots the names of candidates voted for, while mark or tally was kept by others of the votes announced by him; he was thus engaged at intervals which together comprised but a comparatively small portion of the time occupied in the count. Other members of the board of election and some of the clerks ■—eight or nine in all—were successively engaged in the business of “calling, off.” Eagan signed the certificate of the totals which was prepared by some of the clerks. Such certificate varied from the fact in the matter of the vote for county clerk as alleged in the indictment; the discrepancy was detected, it seems, upon a contest instituted in court where a recount from the ballots was had. Each of the codefendants of appellant was introduced as a witness by the people and each testified that himself had honestly performed his part of the work of counting and returning the vote. This was virtually the sum of the evidence for the prosecution. There was no evidence—aside from the error in the returns—that appellant ever indicated by word or act an intent or desire to falsify the vote, or that he had any motive to do so; “ watchers ” who scrutinized the count were in attendance during the progress thereof, but none suggested that appellant was perpetrating wrong. He was sworn in his own behalf and testified that he read the ballots correctly and honestly, and had when he joined in certifying the return list no knowledge of any error; that he did not know Curry, and had no interest in his election.

The case for the prosecution was circumstantial; it was not claimed that the returns were altered in any particular, or did not correspond with the tally lists; so that the error, whether fraudulent or otherwise, must have occurred in reading from the ballots or in tallying; there was a gross error in the returns, and appellant had the opportunity for its commission. But •others had had the same opportunity; we are not dealing with the conditions which might be presented if all the persons who had facilities for perpetrating the crime charged had been sworn and all had alike purged themselves as did the six defendants aforesaid; possibly in such a case it would be solely for the jury to determine whether there was fraudulent error and where the responsibility lay; but here several persons who as members of the board or as clerks had “called off” votes, or liad kept tally, were not before the court, and their work was in no manner vindicated. It is elementary la-w that circumstances relied upon to establish the guilt of one accused of crime must be consistent with that hypothesis and inconsistent with any other rational conclusion. Ordinarily,the deduction to be drawn from the circumstances is for the jury, but in this instance it is manifest that every fact proved is consistent with the reasonable conclusion that the false return resulted, without appellant’s connivance, from the acts of persons who had equal opportunity with him, and that there is no evidence tending to exclude this inference; there is, therefore, a failure of proof in a particular necessary to conviction, and the question is one of law for the court. (People v. Martin, 2 Cal. 484; People v. Jones, 31 Cal. 565; People v. Darr, 61 Cal. 554; Burrill on Circumstantial Evidence, 181, et seq.)

We are fully sensible of the flagrancy of the offense charged, and of the need and importance of strictly enforcing the law designed for its prevention and the prevention of all similar practices; they justly excite public alarm and resentment; but while these considerations incite to vigilance for the suppression of such evils, they suggest also caution lest the result of a trial is reached through the operation of sentiment noted by Sir Matthew Hale in treating of another crime: “The heinousness of the offense many times transporting the judge and jury with so much indignation that they are over-hastily carried to the conviction of the persons accused thereof.” The judgment and order denying a new trial should be reversed,

Belcher, C., and Searls, C., concurred.

For the reason given in the foregoing opinion the judgment and order denying a new trial are reversed.

Garoutte, J., Van Fleet, J., Harrison, J.  