Carter v. State

55 Ala. 181

Opinion

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.

2. 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.