Commonwealth v. Trimmer

Mr. Justice Mercur

delivered the opinion of the court,

This case is controlled by the effect to be given to the pleadings. The indictment substantially charges that the defendants forged, defaced, withdrew and falsified tally papers, certificates, documents and records, taken and made at the general election held on the 2d day of November 1875, in and for the township of “ .Old Eorge.” The defendants plead autrefois acquit, setting forth at length another indictment, which charged them with having committed the same offences in regard to the tally papers, certificates, documents and records, taken and made at a general election held on the same day, in and for the “ Southern District of the township of Blakely,” and averred a trial and acquittal on said indictment “ as by the record of the said proceedings now here appears.” They further averred that the felony and misdemeanor charged in that indictment, were one and the same felony charged in the present indictment, and this they were ready to verify, &c. To this plea, the Commonwealth demurred generally. The court overruled the demurrer, sustained the plea of autrefois acquit, and ordered the defendants to go without day.

This judgment of the court is assigned for error.

As a general rule a demurrer admits the facts pleaded and refers the question of their legal sufficiency to the decision of the court. To give this effect to the demurrer the facts must be well pleaded: Hancocke v. Prowd, 1 Saund. 337 b, n. 3; Jones v. Stevens, 11 Price 235.

Here the defendant’s plea set forth the record of an acquittal on an indictment charging an offence in regard to the returns of an election held in another township. It did not aver that the townships named in each indictment were one and the same township. Bearing different names the legal presumption is that they were separate and distinct townships. The plea alleges no fact repelling that presumption.

It is contended that the same election is described in each indictment, and that therefore that each offence was committed by one and the same act. In one sense it may be said that it was the same election: but in many others it was not. Each was a district in which the qualified voters thereof might vote in the election of the same officers, but it does not necessarily follow that the votes were cast for the same persons. John Doe may have received all the votes cast, for a particular office, in one township, and Richard Roe all cast for the same office, in the other township. A fraudulent alteration of the records, showing the number of votes cast in one *69 township, would not add to or take from, the true number cast in the other township. The number of votes cast in one township is an independent fact, not changed by the number cast in any other township. It is true the election held in each district affects the general result in determining who are elected to the several offices. At this general election the 'vote in each district not only affected the result in the whole county of Luzerne, but in so far as it was cast for state officers, it affected the result in the entire Commonwealth. Yet this fact by no means destroys the separate identity of each district. Each election district has its own officers to superintend the election therein. They only certify to the number of votes there cast and make the proper return. Their powers, duties and responsibilities apply to the elections in their own district only. There is no such iinity between townships as to make the records of one township the records of another township, for any purpose. The record of the school directors in school district A. is not the record of the school directors in district B. The taxes levied in one district are not the taxes of the other. The schoolhouse of one district is not the property of another district. The tally papers and records of the votes cast and of the voters, in the township of “ Old Forge,” are not the tally papers and records of the votes cast, nor of the voters, in the township of “ Blakely.” It is very clear that on an indictment for falsifying the election returns of “ Blakely” township the defendants could not be convicted of having falsified the returns of “ Old Forge” township. Proof of the returns of one township is no proof of the returns of any other township. Evidence identifying the returns from one is no evidence of the returns from another. Where the evidence necessary to support the second indictment, would have been sufficient to procure a legal conviction upon the first, the plea of autrefois acquit is generally good, but not otherwise: 2 Am. Crim. Law, § 565. The fact that the returns of the election held in the several districts of the county, are all deposited in the prothonotary’s office, does not make them an indivisible record. They still have a separate and distinct existence.

The question here is not whether an indictment might not have been framed in language general and broad enough to have let in the evidence, and' to have tried the defendants for falsifying all the returns of this election in the county; but whether such action could have been had under the indictment pleaded in bar, which limited the offence to the records of “ Old Forge” township ? As on an indictment for forging the note of A., no conviction could be had for forging the note of B., so on an indictment for forging the election papers of “ Old Forge ” township no conviction could be had for forging the election papers of “ Blakely township.”

It is contended that if this be the correct effect to be given to the record, yet inasmuch as the plea further avers the offence to have been the same, it changes the effect of the record. We cannot *70 adopt this view. The plea concludes, as it necessarily must, with a proud patet per recordum, and an offer to verify it by the record. Then whether the offence is the same is to be decided by an inspection of the record.

On demurrer to a plea in bar, the court will consider the whole record, and give judgment for the party who on the whole appears to be entitled thereto : Duppa v. Mayo, 1 Saund. 285, n. 5; 1 Tr. & H. Pract. 490; Murphy v. Richards, 5 W. & S. 279 . Hence, on a demurrer to a replication, if the court think the replication bad, but perceive a substantial fault in the plea, they will give judgment not for the defendant, but for the plaintiff, provided the declaration be good: Anon., 2 Wilson 150 . Whether the former acquittal was for the same offence depends on the record pleaded, and not on the argument or inference deduced therefrom. The defendants plead in bar a former trial on no other indictment than the one set forth in the plea. If that record shows that the evidence necessary to support a conviction on the present indictment, would have been insufficient to procure a legal conviction on the former, the plea of autrefois acquit is not sustained.

It was further urged that the objection to the sufficiency of the plea could be raised by special demurrer only. It is undoubtedly true that a special demurrer is necessary where the objection turns on matter of form only ; but a general demurrer is sufficient where the objection is to matter of substance: Steph. on Plead. 159; 1 Tr. & H. Pract. 489. Here the demurrer is to matter of substance. The substance of the plea is the record therein recited. The demurrer denies the sufficiency of all the facts shown by that record. The record pleaded describes specifically the offence charged in the former case, and shows it is not the same offence which is charged in the present. It shows the offence now charged here could not have been tried there. It is the duty of the court to declare the legal effect of a record which is offered to sustain the plea of autrefois acquit, and the record cannot be gainsaid by parol evidence : Martha v. State, 26 Ala. 72 . The learned judge erred in overruling the demurrer.

Judgment reversed, and judgment of respondeat ouster.