State v. Barr

Constitution; Information for Violation of Sec. 7 Art. 5 of— Pleading—Evidence—What Necessary to Allege—Bail Bond—Offering to Pay—Tender—Examination and Commitment or Holding to Bail—Presumption ■—Public Officer—Performance of Duty— Plea in Abatement or to Jurisdiction— Criminal Case; Plea necessary— New Trial. 1. Information for violation of Section 7, Article 5, of the Constitution. Form given. 2. It is not necessary to allege in the information what sum of money the defendant offered or promised to pay. It is sufficient if it follows the bail bond in that respect. 3. Testimony given upon which the defendant was adjudged guilty. ■ 4. Although it is alleged in the information that a general election was held it is not essential that it be proved, because the Court will take judicial notice of the fact. 5. The defendant having been held to bail on charge of offering or promising to pay, etc., the information could charge no other offense than the one for which he was held to bail. But it might charge either the offering or the promising to pay. 6. The words—“If you will vote the Republican ticket I will pay you-twenty dollars after the polls have closed,” is an offer to pay the person. The Constitutional provision does not require an acceptance of the offer. The offer would be sufficient and complete if the proposition was immediately rejected. There is no tender needed to make an offer. 7. The preliminary proceeding of an “examination and commitment or holding to bail by a Judge or Justice of the Peace” is absolutely necessary to enable the Attorney General to file the information, but it is no part of the offense charged. 8. No direct proof was made at the trial that there had been an examination or waiver of it, but a bail bond signed by the defendant and his sureties, and in which he undertook to appear and answer the charge set forth in the bond, was put in evidence. Held, that the officer taking the bail bond would be presumed to have acted within the scope of his authority until the contrary appears. If there was no preliminary examination, or no waiver of such examination, the defendant could prove it. 9. The proper method of raising the question whether there was a preliminary examination would be by a plea in abatement or plea to the jurisdiction, or perhaps by motion to quash, before the trial, supported by affidavit. 10. Although the information alleges that there was a preliminary examination, an immaterial fact need not be proved as a distinct fact. 11. There can be no valid trial except upon an issue joined. It is absolutely necessary in a criminal case that a plea be entered. It satisfactorily appearing to the Court that neither before, nor during, nor since the trial, was there any plea of any kind either by the defendant or by his counsel, and no appeal having been taken, a new trial was granted.

Information for Violation of Section 7, Article 5, of the Constitution of the State of Delaware. The information was in the following form, to-wit:— “February Term 1909 “Sussex County ss. “1. Andrew C. Gray, Attorney-General of the State of Delaware, now here'in the Court of General Sessions of the State of Delaware, now sitting in and for the County aforesaid, at the February Term of said Court in the year of our Lord one thousand nine hundred and nine, information makes that John Barr, late of Georgetown Hundred in the County and State aforesaid, on the third day of November, in the year of our Lord one thousand nine hundred and eight, having been brought before William A. Warrington, one of the Justices of the Peace of the State of Delaware in and for Georgetown Hundred, County of Sussex, after waiving hearing and examination, was held to bail by the said Justice of the Peace in the sum of five hundred dollars, for the appearance of the said John Barr at the present session of the said Court of General Sessions being now here holden in and for said County, to answer to the charge that he the said John Barr, in Sussex County aforesaid, on or about the third day of November, in the year of our Lord one thousand nine hundred and eight, did violate the provision of Section 7 of Article 5 of the Constitution of the State of Delaware by offering or promising to pay Jonathan P. Hall money, as an inducement, compensation or reward to influence his vote at the General Election of the State of Delaware, held in Georgetown Hundred, County and State aforesaid, on Tuesday the third day of November iin the year of our Lord one thousand nine hundred and eight. “And further, that the said John Barr late of Georgetown Hundred in the County of Sussex in the State aforesaid, on or about the third day of November, in the year of our Lord one thousand nine hundred and eight, with force and arms at the Hundred aforesaid, in the County aforesaid, did unlawfully offer to pay to a certain Jonathan P. Hall aforesaid, as a compensation, inducement or reward to influence the vote of him the said Jonathan P. Hall, at the General Election of the State of Delaware then to be held on Tuesday the third day of November in the year of our Lord one thousand nine hundred and eight, money, the said Jonathan P. Hall then and there being duly registered and qualified to vote as an elector at the said General Election held on the third day of November in the year of our Lord one thousand nine hundred and eight in Georgetown Hundred, being in the Ninth Representative District of Sussex County aforesaid, contrary to the provision of the Constitution of the State of Delaware in such case made and provided, and against the peace and dignity of the State. “2. Andrew C. Gray, Attorney-General of the State of Delaware, now here in the Court of General Sessions of the State of Delaware, now sitting in and for the County aforesaid, at the February Term of said Court in the year of our Lord one thousand nine hundred and nine, information makes that John Barr, late of Georgetown Hundred in the County and State aforesaid, on the third day of November in the year of our Lord one thousand nine hundred and eight, having been brought before William A. Warrington, one of the Justices of the Peace of the State of Delaware in and for Georgetown Hundred, County of Sussex, after waiving hearing and examination was held to bail by the Justice of the Peace in the sum of five hundred dollars, for the appearance of the said John Barr at the present session of said Court of General Sessions, being now here holden in and for said County, to answer to the charge that he the said John Barr in Sussex County aforesaid, on or about the third day of November in the year of our Lord one thousand nine hundred and eight, did violate the provision of Section 7 of Article 5 of the Constitution of the State of Delaware by offering or promising to pay to the said Jonathan P. Hall money, as a compensation, inducement or reward to influence his vote at the General Election of the State of Delaware then to be held on Tuesday the third day of November in the year of our Lord one thousand nine hundred and eight. “And further, that the said John Barr, late of Georgetown Hundred in the County of Sussex in the State aforesaid, on or about the third day of November in the year of our Lord one thousand nine hundred and eight, with force and arms at the Hundred aforesaid, in the County aforesaid, did unlawfully promise to pay to a certain Jonathan P. Hall aforesaid, as a compensation, inducement or reward, to influence the vote of him, the said Jonathan P. Hall, at the General Election of the State of Delaware then to be held on Tuesday the third day of November in the year of our Lord one thousand nine hundred and eight, the said Jonathan P. Hall then and there being duly registered and qualified to vote as an elector at the said General Election held on the said third day of November in the year of our Lord one thousand nine hundred and eight in Georgetown Hundred aforesaid in the Ninth Representative District of Sussex County aforesaid, contrary to the provision of the Constitution of the State of Delaware in such case made and provided, and against the peace and dignity of the State. “Andrew C. Gray, ‘ ‘Attorney-General.' ’ Counsel for defendant moved to quash the above information on the ground that it failed to allege in either count what sum of money the defendant offered, or promised, to pay Jonathan P. Hall, the prosecuting witness. Gray, Attorney-General, contended that the information was sufficient, and that it followed the bail bond in that respect. The motion to quash was refused. At the trial the State proved by Jonathan P. Hall that he lived in Georgetown Hundred and was twenty-three years old; that he knew John Barr, the defendant, and saw him óp. the third day of November, 1908, the day of the General Election in this State. The witness further testified, in response to questions by the Attorney-General, as follows: Q. Where did you see John Barr? A. Out there by the Eagle Hotel woodshed, back of the Eagle Hotel. (Indicating out the Court room window). Q. Who was there beside you and John Barr? , A. Ben Morris. Q. Just state any conversation that you had with John Barr, the defendant, at that time and place ? A. Ben came to me and told me that Mr. Barr wanted to see me. I came up and was standing there talking to Mr. Barr, and Ben came up. He (meaning John Barr, the defendant) said he would give us twenty dollars apiece to vote the Republican ticket. Q. Who said this? A. John Barr. •Q. This defendant? A. Yes sir. Q. What other conversation did you have with Mr. Barr at that time—did you have any conversation with him about voting, before Benjamin Morris came up? A. No sir; he just asked me if I was going to vote, and I told him yes. Q. After Benjamin Morris came up just tell everything that Barr said. A. He said, “If you boys go in and vote a republican ticket', I will give you twenty dollars as soon as the polls close.” I told him I would see him after a while. Q. Twenty dollars in money? A. Yes sir; that’s what he said. Q. What did you say? A. Told him I would see him after a while. Q. Did you and Morris leave him then? A. Yes sir; I went home to dinner. Q. Did you tell any one about this offer? A. No sir; until Charles Holiday and Joe Green came up to my house after me. Q. When they came after you did you go to a Justice of the Peace and swear out a warrant for John Barr’s arrest? A. I went to Mr. Richardson’s office. Q. Did you have any further conversation with Mr. Barr about this matter? A. Not that day. Q. Have you had any with him since? A. No sir. Q. Have you spoken to him since? A. Yes sir; he spoke to me. Q. Did he say anything about this case? A. No sir. Q. Barr was arrested on election day. A. Yes sir. Q. What time of day was this? A. Getting close to dinner time; about eleven or eleven thirty. Q. How long were you over there by the wood pile? A. Not over five minutes, I don’t suppose. Q. Wag any one else that you saw within hearing distance ■ of you? A. No sir. Benjamin B. Norris, after testifying on behalf of the State that he lived in Georgetown and was a registered voter in Georgetown Hundred at the last election and saw John Barr, the defendant, on election day in company with Jonathan P. Hall, back of the Eagle Hotel close to the woodshed, between eleven and twelve o’clock, further testified in response to questions by the Attorney-General, as follows: Q. Was Hall with him when you came up? A. Yes sir. Q. After you got there was anything said about the election by Barr—about voting? A. Mr. Barr said if we would go vote the republican ticket he would give us twenty dollars apiece as soon as the polls closed. Q. How long were you and Hall there with him? A. I suppose about -five or ten minutes. Q. Did you and Hall leave him together? A. Yes sir. Q. Did you or Hall say anything to him when he made that offer of twenty dollars? A. When he made this offer I was standing over on Mr. Houston’s steps at the printing office and he nodded for me to come to him and I went to him, and he says, “ If you will go get Mr. Hall I’ll give you twenty dollars,’ and tell him if he will vote the republican ticket I’ll give him twenty dollars.” Mr. Hall went to him first and then I went up. Q. That was between eleven and twelve on election day? A. Yes sir. Walter W. Pepper, another witness produced on behalf of the State, testified that he saw the preceding witnesses, Hall and Morris, and the defendant, Barr, together on election day, 1908, sometime between two and three o’clock “right over at the woodshed at the Eagle Hotel;” that he was not near enough to hear anything that was said; that “they were standing together ; Mr. Barr was in the centre, and Hall and Morris were on each side of him.” The State then rested. Mr. Reinhardt:—If your Honors please, at this-stage I desire to submit a motion for the discharge of this defendant under the evidence as given. One of the material allegations necessary for the State to prove, is that there was a general election on the third day of November, 1908, and there is no proof whatever in this case that there was such an election in this State. Spruance, J. :•—The Court will take judicial notice of the fact that there was a general election last November in this State. (The defense consisted of a general denial of the State’s testimoney, and evidence was introduced tending to impeach said testimony.)