Shea v. State

Broyles, C. J.

1. “Primary elections are not within the meaning of section 660, subsection 6, of the Penal Code (1910), which provides that any person who shall deposit a ballot ‘at any election’ in any name other than his own, as appears on the list of registered voters prescribed by law, shall be guilty of a misdemeanor.” George v. State, 18 Ga. App. 753 ( 90 S. E. 493 ) ; Mark v. State, 18 Ga. App. 754 ( 90 S. E. 493 ).

2. The accusation in the instant case charges that the defendant was guilty of a misdemeanor, in that in a primary election, held under the act approved August 21, 1922, and at a certian polling-place in the city of Savannah, he did.unlawfully cause the managers at such polling-place, to wit E. J. Seymour and R. W. Eerguson, to write the name of a voter, to wit one Clyde C. Eddy, on the ballot preparatory to handing the ballot to him (the accused), who then and there represented himself to be the said Clyde C. Eddy, a duly registered voter of Chatham county entitled to vote at and in said primary election in said polling-place, and did then and there unlawfully receive the said ballot from the said managers and did unlawfully vote the same at said polling-place in said primary election. Held, that the act of August 21, 1922 (Ga. L. 1922, p. 97), properly construed, does not make it a crime for a person to *730 impersonate another person and to vote in his name in a primary election. In fact, such a proceeding, however wrongful it may be, is not prohibited by any provision of the act; and as there is no other statute of force in this State making such act a crime:, the accusation in this case did not charge the defendant with the commission of any offense under the laws of Georgia, and the court erred in overruling the general demurrer to the accusation.

Decided April 14, 1933. Hester, Lewis & Clark, for plaintiff in error. Hdward C. Brennan, solicitor, contra.

Judgment reversed.

MacIntyre and Guerry, JJ., concur.