Walker v. United States (93 F.2d 383, 1937)

GARDNER, Circuit Judge.

Appellants, with five others, were indict- . ed in an indictment containing two counts. The first count charges a conspiracy in violation of section 19 of the Criminal Code (title 18, § 51, U.S.C.A.), to injure and oppress citizens in their right to vote for presidential electors and to have their votes counted as cast, while the second count charges a similar conspiracy to injure and oppress citizens in their right to vote for members of Congress and to have their votes counted as cast. The indictment, omitting mere formal allegations, charges in substance that “a number of persons who were citizens of the United States of America and residents of the State of Missouri, a part of whom are to the Grand Jurors unknown and whose names and exact description therefore cannot be set forth in this Indictment, and the remaining ones of whom, • although known to the Grand Jurors, are too numerous to be named and described in this Indictment, and all of whom are hereinafter referred to as voters, then and there were residents of the 13th Precinct of the 12th Ward located in Kansas City, Jackson County, Missouri, and of the 4th Congressional District of the State pf Missouri, and then and there were legally qualified voters who had duly and legally qualified to vote in accordance with the requirements of the laws of the State of Missouri relating to the qualifications of voters, and had duly and legally registered in accordance with such laws as such voters in the Precinct and Ward aforesaid, and then and there possessed and had the necessary and requisite qualifications to entitle them to vote at the General and Presidential Election hereinafter described, and then and there possessed and had the rights and privileges which were guaranteed and secured to them and to each of them by the Constitution and laws of the United States of America, all because of their citizenship and residence aforesaid, and their qualifications and registration qs aforesaid, and complete and full compliance with the laws of the State of Missouri as aforesaid, and then and there were entitled to exercise and to enjoy the same, which rights and privileges embraced and included, among others, the right and privilege to exercise the right of suffrage and to vote in and for the election of a legally qualified person to the office of Representative in the Congress of the United Stqtes of America to represent the people of the 4th Congressional District of the State of Missouri, and of the United States of America, at the General election to be held on the 3rd day of November, 1936, for such purpose, in. the Congressional District aforesaid, and the right and privilege to have their votes and each of them for the person aforesaid accurately, honestly and truthfully counted, recorded, certified and returned as cast;” that at the election so held, the defendant Edson M. Walker,' with certain other named defendants, were judges of election, duly qualified and acting as such; that certain other named defendants were the clerks of the election, duly qualified and acting as such; and the defendant John H. Drummond was a precinct captain, chosen and acting as such; that at the election so held the defendants conspir-. ed to injure and oppress the said voters described in the indictment in the free exercise of the rights and privileges guaranteed and secured to them by the Constitution and laws of the' United States of America, namely, the right and privilege to exercise the right of suffrage to vote at and for the election of a legally qualified person to the office of Representative to the Congress of the United States of America, and to have their votes so Cast accurately, honestly, and truthfully counted, recorded, certified, and returned. This conspiracy in effect was that after the voters had marked and cast their ballots and deposited them in the ballot box, the defendants would count, record, and certify and cause the judges and clerks of said election to count, record, and certify to the board of election commissioners of Kansas City, Mo., the votes of such voters as having been actually and in fact cast for the persons who were candidates opposing the persons for whom the votes were actually cast, so that the voters and each of them would be injured and oppressed in the free exercise and enjoyment of their rights and privileges as voters and so that the votes of such voters as were cast' for candidates of the Republican Party for the office of Representative to the Congress of the' United States of America would be given to other persons opposing such Candidates. Various overt acts are charged.

Appellants filed demurrers to the indictment. They also filed -pleas in abatement based upon the alleged prejudicial character of the charge given to the grand jury by the trial judge. They also filed motions to quash the petit jury panel, assailing the propriety of the method of selecting the names of the persons for jury service. The demurrers, pleas in abatement, and motions to quash were all overruled. The case was submitted to the jury on the second count only. Two of the defendants, appellants here, were found guilty. The jury disagreed as to three other defendants, while-two defendants, Chloe G. Albright and Tessie Mears, entered pleas of nolo contendere, and at the conclusion of the trial they were placed on probation for one year without sentence.

Appellants, on the verdict of guilty, were each sentenced to serve two years in the United States prison. They seek reversal upon various grounds which may be summarized substantially as follows: (1) The indictment does not charge a federal offense; (2) the charges to the grand jury were improper ; (3) the petit jurors were improperly selected; (4) there was an improper exclusion of residents of Kansas City and Jackson county from the petit jury panel; (5) the evidence was insufficient to sustain the verdict of guilty; (6) it was error to admit testimony of grand jurors on the trial of the action; (7) evidence of stuffing the ballot box and repeat voting was improperly admitted; (8) evidence concerning unidentified men was improperly admitted; (9) evidence that appellant Walker refused to make statement was inadmissible ; (10) the charge to the jury was erroneous, argumentative, and misleading; (11) it was error to refuse to set the order of cases for trial when requested by defendants’ counsel; and (12) it was error to receive nolo contendere pleas in the presence of the jury.

As a matter of convenience, the parties will be referred to as they appeared below.

With this case there were submitted four other similar cases, and by agreement of counsel the questions common to all the cases were argued in this case, and they will be here considered. While only the second count of the indictment in this case was submitted to the jury, in some of the other cases both counts were submitted, and in discussing the question of the sufficiency of the indictment, we shall consider both counts.

1. Section 51, title 18 U.S.C.A. (section 19, Criminal Code), provides that “if two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same,” they shall be fined and imprisoned as in the statute provided. In assailing the indictment, defendants urge that the right which is protected by this statute is a personal and individual one, while the conspiracy charged is one affecting the public right in the result of all of the votes, and hence no federal offense is described in the indictment. The gist of the crime is the unlawful conspiracy. Smith v. United States (C.C.A.8) 157 F. 721; Steedle v. United States (C.C.A.3) 85 F.2d 867, 107 A.L.R. 1361; Aczel v. United States (C.C.A.7) 232 F. 652.

The unlawful conspiracy alleged, briefly stated, was to injure qualified voters in their rights to have their votes for presidential electors (count 1) and representatives in Congress (count 2) counted, by falsely counting, recording, certifying, and returning them. Counsel for defendants argue that under this statute, when the voter has cast his ballot, his personal interest ceases and merges in the general public interest in an honest record and count of the votes cast, and for that reason a conspiracy to count, record, and return ballots falsely does not constitute a crime. The argument, we think, has already been met by controlling decisions. United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355; United States v. Pleva (C.C.A.2) 66 F.2d 529, 530; Diulius v. United States (C.C.A.3) 79 F.2d 371; Connelly v. United States (C.C.A.3) 79 F.2d 373.

In United States v. Mosley, supra, defendants, who were county election officials, agreed that they would omit from their count the precinct returns in an election in which a member of Congress was to be elected. The District Court sustained a demurrer to the indictment, but on appeal its order was reversed by the Supreme Court. In United States v. Pleva, supra, the conspiracy alleged was to falsify a record of votes cast for federal officers. In holding the indictment good, the court said:

“In view of the decision in the Mosley Case, -supra, it seems unnecessary to do more than point out that this indictment charges the conspiracy as one to injure and oppress voters, not candidates for office, and that it is self-evident that a legal voter is injured unless he is not only permitted to vote, but to have his vote counted as cast.”

Defendants strongly rely upon United States v. Bathgate, 246 U.S. 220, 38 S.Ct. 269, 62 L.Ed. 676; Chavez v. United States (C.C.A.8) 261 F. 174, 175; United States v. Kantor (C.C.A.2) 78 F.2d 710; and Steedle v. United States (C.C.A.3) 85 F.2d 867, 107 A.L.R. 1361, but the cases are readily distinguishable. United States v. Bathgate was a bribery case. Chavez v. United States was a case where the indictment charged a conspiracy against the right of the candidates and all of the voters in the state at large. In that case, United States v. Mosley was distinguished because the Mosley Case “held the protection of the statute embraced the personal right of a voter to have his ballot counted and returned as he cast it. That is an essential part of the right to vote.” In United States v. Kantor it was held that there was no injury to qualified voters by inclusion of disqualified voters. In Steedle v. United States the conspiracy proved was a plan to change votes for candidates for the state Legislature, and on that point the case turned. In the instant case, however, a conspiracy to injure the voters in their personal right is specifically charged, and we cannot agree with counsel for defendants that the indictment charges only an agreement to injure the people or the voters in their public right and interest. Neither are such cases as Buchanan v. United States (C.C.A.8) 233 F. 257, Janes v. United States (C.C.A.8) 6 F.2d 545, and McDonald v. United States (C.C.A.8) 9 F.2d 506, in point. In these cases there was involved a question of fact as to whether the defendants intended to injure citizens in their federal right. But here there are direct allegations in the indictment that the defendants conspired to count, record, and certify the ballots of voters falsely with fraudulent intent. While a conspiracy to count and return falsely would doubtless result in an injury to the public, it still has the direct object and effect of injuring the individuals whose ballots are denied their intended effect, and it is this injury with which the indictment deals in explicit charges.

We put aside the- argument that section 51, .supra, was not intended to cover the case made by the indictment, because of the repeal of the Act of May 31, 1870, c. 114. That question was settled adversely to the contention of counsel by United States v. Mosley, supra.

In certain of the companion cases there were convictions under count 1 charging a conspiracy to injure and oppress citizens in their right to vote for presidential electors. It is contended by defendants that-presidential electors are officers of the state and not federal officers. We are of the view that this contention is sound and should be sustained. Article 2, section 1, United States Constitution; section 10730, Revised Statutes Missouri 1929 (Mo.St. Ann. § 10730, p. 3946); Fitzgerald v. Green, 134 U.S. 377, 10 S.Ct. 586, 587, 33 L.Ed. 951; Burroughs v. United States, 290 U.S. 534, 54 S.Ct. 287, 78 L.Ed. 484; 12th Amendment, United States Constitution.

In Fitzgerald v. Green, supra, the court said:

“The sole function of the presidential electors is to cast, certify, and transmit the vote of the state for president and vice-president of the nation. Although the electors are appointed and act under and pursuant to the constitution of the United States, they are no more officers or agents of the United States than are the members of the state legislatures when acting as electors of federal senators, or the people of the states when acting as electors of representatives in congress.”

Congress has enacted legislation which supplements the Twelfth Amendment and provides when the electors shall meet, that the Chief Executive shall certify to the Secretary of State the ascertainment of the electors “by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment.” The method of returning the vote of their state is also covered. Title 3 U.S.C., §§ 5a to 11c, inclusive, 3 U.S.C.A. §§ 5a to 11c, Act of May 29, 1928, 45 Stat. 945, and amendments of June 5, 1934, c. 390, 48 Stat. 879. This legislation recognizes that the mode of selection of electors from a particular state is a matter of local law.

The question is not one of the power of Congress to safeguard the elections of presidential electors, but rather whether it has done so by section 51, title 18 U.S.C.A.

The Federal Constitution does not provide that the selection of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors. It leaves it to the state Legislature to define the method of effecting the object. McPherson v. Blacker, 146 U.S. 1, 10, 13 S.Ct. 3, 10, 36 L.Ed. 869. As said by Mr. Chief Justice Fuller in McPherson v. Blacker, supra, “the appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States.”

Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 158, 28 L.Ed. 274, relied upon by the government, does not support the contrary conclusion. That case involved the election of a member of Congress. The Constitution, as the opinion points out, created the office and provided for election of its members by electors in each state having the same qualifications requisite for electors of the most numerous branch of the state Legislature. The court there said:

“The .states, in prescribing the qualifications of voters, for the most numerous branch of their own legislatures, do not do this with reference to the election for members of congress. Nor can they prescribe the qualification for voters for those eo nomine. They define who are to vote for the popular branch of their own legislature, and the constitution of the United States says the same persons shall vote for members of congress in that state. It adopts the qualification thus furnished as the qualification of its own electors for members of congress.

“It is not true, therefore, that electors for members of congress owe their right to vote to the state law, in any sense which makes the exercise of the right to depend exclusively on the law of the state.”

But we are here discussing the status of presidential electors. Manifestly, the right to vote for presidential electors depends directly and exclusively on state legislation. We conclude that count 1 of the various indictments does not state a federal offense.

2. Defendants contend that their pleas in abatement should have been sustained because of the charge of Judge Reeves to the grand jury. It may first be observed that pleas in abatement are not favored in law, and they are to be strictly construed. Only part of the judge’s charge is preserved in the record, and it was not contended in the lower court, nor is it contended here that .the indictment was returned without proper or sufficient evidence to sustain it. Nor is there any proof, direct or circumstantial, tending to show that any defendant was indicted who would not have been indicted but for the charge. The trial judge twice charged the grand jury because a change had taken place in the personnel of the grand jury. In the first charge the judge stated that he had been informed of various offenses against the ballot box, and admonished the jurors that if such a case came before them, the persons who committed the offense would be guilty. By way of illustration, he mentioned a hypothetical case where eighty votes might be cast and only four or five votes certified from the precinct. Of this, he said of those responsible, “It makes no difference who they are, they are law violators and are not willing to abide by the will of the majority. They are cheating and defrauding the American people of their rights.” Interference with the inquiry, he said, would be an act of treason. He said that the fair name of Kansas City should be cleared of charges of illegal election practices if they were untrue, and,, if true, the individuals responsible for the odium upon the name of the city should be punished until no longer would such things occur; that there was crying need for the purification of the ballot in America; that the ballots and voting could not be left to the men who go through the streets of the city with machine guns and without license plates on their automobiles, intimidating, striking, and bludgeoning the honest citizens who are trying to cast their honest votes; that the government must look into those cases; that a short time ago, kidnappings were all too common; that men were kidnapped and taken across the state line, and the government got after those persons and tracked them down until the men who were guilty are either in their graves or in Alcatraz; that the government stopped that crime, and the government will move upon corrupt voting. “A corrupt vote may be likened to a loaded and cocked gun pointing at the very heart of America. If we would preserve America, we must preserve the purity of the ballot box, and we must do that even if our prisons and our jails must be crowded to suffocation with those who would destroy a pure ballot. Those that would destroy the ballot are those that would destroy the Government. * * * It is almost a matter of common knowledge that at the ballot box, the individual who would corrupt the ballot is omnipresent, where non-citizens are used, and where many men vote many times.” He also said, “I can’t emphasize too strongly the grave responsibility that rests upon you men and the importance of an inquiry, and when you begin your war upon this corruption in Kansas City and elsewhere, you will have every good citizen behind you. * * * Gentlemen, it is a great responsibility that you have and you will move against the crimes against the Government and crimes against the ballot box. I put equal emphasis upon it with other crimes. Every one of them ought to be prosecuted and punished. There is already upon the pillars of a free Government a strain today because of the chaos of the world. If it be true in the individuals who like worms in the nighttime and in the dark places are working, and boring into the pillars of the fabric of our government and digging into the heart of it, then in a little while, the crash will come.”

In the second charge, the judge said, among other things, “In this inquiry I warn you that those who violate election laws constitute a most dangerous foe, whether they be in Kansas City or elsewhere, or whether they be of one political party or another political party, they constitute a most dangerous foe. * * * The ballot box offender is a dangerous offender, and being a dangerous offender, resorts to the methods employed by other criminals who interfere with investigations by the Grand Jury. I warn you men that ordinary criminals do not appoach bluntly and abruptly in order to stop any inquiries concerning their conduct, but they work by indirection.”

The judge recited in detail the incident of Napoleon and his drummer boy at the battle of Marengo, and concluded, “Gentlemen, I sound the charge to you today. I give the blast of the trumpet that I hope will never call a retreat.” He referred to Benedict Arnold, as the man who listened to the voice of those who said, “It can’t be done; it can’t be done,” and the judge said, “Gentlemen, the call is to you. As you proceed you should hear in mind that ‘It can be done.’ ”

He pointed out, however, that charges were not to be preferred because of spite or malice, and that they should be reasonably satisfied upon the testimony that the accused ought to be put upon trial.

The pleas in abatement allege that the charges to the grand jury were intemperate, inflammatory, argumentative, prejudicial, and impassioned,