TION OF. : DEFINI- ling, or procuring its commission, a corrupt practice and a felony see 46 & 47 Vict. c. 51, s. 6 (2). A corrupt practice whenever committed may avoid the election: see ante, p. 277. WHAT AMOUNTS TO. These provisions are applied to county council elections by 51 & 52 Vict. c. 41, s. 75; to school board elections by 47 & 48 Vict. c. 70, s. 36, and to the other elections by 56 & 57 Vict. c. 73, s. 48 (3) and (8). See further, note, ante, p. 279. " or The definition is wide enough to include the case of a person who innocently applies for a ballot paper in the name of some other person or votes a second time, because it contains no such words as "wilfully" "corruptly." It is difficult, however, to believe that the legislature intended the innocent commission of such an act to be a felony. It has accordingly been held that it is of the essence of the offence of personation that the act be committed "corruptly." Thus in Stepney, 4 O'M. & H. 43, a voter registered in two divisions of a parliamentary borough, divided into divisions, voted twice, contrary to 48 & 49 Vict. c. 23, s. 8 (3), but in the honest belief that he was entitled to do so; the question before the Court was whether his first vote should be struck off because he had been guilty of the corrupt practice of personation by voting a second time. The Court held that personation had not been committed because there was no corrupt intention, and that the first vote was good. In Hexham (Day's El. Cas. 68) and Gloucester (2 O'M. & H. 63) agents were proved to have endeavoured to get persons to vote who were not entitled to vote, but were acquitted of aiding and abetting personation because they did not know that such persons were not entitled to vote; and, as Cave, J., said in the former case, persons might be guilty of aiding and abetting personation who corruptly induced a person to vote, although he was not guilty of personation because he did not know that he was not entitled to vote. AMOUNTS TO. See also as to corrupt intention being essential to the WHAT offence of personation, Athlone, 3 O'M. & H. 57. But the vote of a person improperly given under any of the above circumstances, may be struck off on a scrutiny, whether he is guilty of the offence of personation or not. A person who was put on the register by the overseers in a name not his own, and applied at an election for a ballot paper in that name, was held not guilty of personation, because he did not apply for a ballot paper in the name of some other person or of a fictitious person: R. v. Fox, 16 Cox, C. C. 166. TION FOR. There are three statutes under which proceedings for PROSECUthe punishment of the offence of personation may be instituted : May be under three 1. Under 6 & 7 Vict. c. 18, ss. 86-89, upon the statutes. initiative of a personation agent before the personator These sections are fully set leaves the polling station. 2. Under 35 & 36 Vict. c. 33, s. 24, upon the initiative of the returning officer, whether at or after the time of polling. Under this section the returning officer is bound to prosecute any person whom he shall believe to have been guilty of the offence, or of having aided, abetted, counselled, or procured its commission; and provision is made for the allowance of costs to the prosecutor and witnesses as in other cases of felony. This section is also applied to the above elections by the before-mentioned Acts and Orders. 3. Under 46 & 47 Vict. c. 51, ss. 45 and 60, applied to municipal elections by 47 & 48 Vict. c. 70, s. 30, and PROSECU- under section 28 of the latter Act by the public prose TION FOR. Under 6&7 Vote not to be rejected. cutor or the attorney-general. The procedure under these sections for this offence is the same as for other corrupt practices, and has been treated of ante, pp. 244, 299. These provisions are applied to county council elections by 51 & 52 Vict. c. 41, s. 75; to school board elections by 47 & 48 Vict. c. 70, s. 36; and to the other elections by 56 & 57 Vict. c. 73, s. 48. Section 86 of 6 & 7 Vict. c. 18 provides that when any person tenders his vote, i.e., applies for a ballot paper (b), or after he has voted, and before he has left the polling station, if a personation agent undertakes to prove that the person voting, or applying, is not the person in whose name he assumes to vote, the returning or presiding officer is to order a constable (c) to take such person into custody. This duty cannot be delegated to a clerk: rule 50 to 35 & 36 Vict. c. 33. The vote of such person cannot be rejected if he persists in voting, duly answers the questions, and (where authorized) takes the oath. The constable is to take the person charged before two justices, and special provision is made in case the attendance of two justices cannot be procured within three hours of the close of the poll: 6 & 7 Vict. c. 18, s. 87. The justices are empowered under section 88, if satisfied of the commission of the offence by not less than two credible witnesses, to commit for trial and to bind over the witnesses. But if they are satisfied that he is the person entitled to vote, and that the charge has been made without reasonable or just cause, or if the agent making the charge, or some one on his behalf, does not appear to (b) 35 & 36 Vict. c. 33, s. 24. (c) For this purpose returning officers are, by sect. 90, directed to provide a sufficient attendance of constables, &c., at each booth; this section being an "enactment for the apprehension of persons charged with personation," is applied to these elections. 45 & 46 Vict. c. 50, s. 86, &c. See TION FOR. support it, then the justices, by section 89, are to order PROSECUin writing such agent to pay the person falsely charged, if he consent to accept the same, a sum of not more than 107. nor less than 57. for damages and costs. If the sum is not paid within twenty-four hours it is to be levied on the goods of such agent, or if he has no sufficient goods, then on the goods of the candidate appointing him. Upon payment or tender of the sum, the candidate, agent, and every other person is relieved from all further proceedings, civil or criminal, in respect of the charge and apprehension. The penalties imposed by 6 & 7 Vict. c. 18, 35 & 36 Vict. c. 33, are repealed. and by It is now enacted by 46 & 47 Vict. c. 51, s. 6 (2), that a person who commits the offence of personation, or of aiding, abetting, counselling, or procuring the commission of that offence, shall be guilty of felony, and any person convicted thereof on indictment shall be punished by imprisonment for a term not exceeding two years, together with hard labour. This section is applied to municipal elections by 47 & 48 Vict. c. 70, s. 2 (2), and this latter Act is applied to county council elections by 51 & 52 Vict. c. 41, s. 75; to school board elections by 47 & 48 Vict. c. 70, s. 36; and to the other elections by 56 & 57 Vict. c. 73, s. 48. Other corrupt practices are misdemeanours only, and are punishable by imprisonment not exceeding one year, with or without hard labour, or by fine not exceeding 2007. If a person is found guilty by an Election Court of any corrupt practice, including personation (which can only occur where he does not elect to be tried by a jury), he is only liable to be imprisoned for six months, with or without hard labour, or to pay a fine not exceeding 2007. 47 & 48 Vict. c. 70, s. 28 (4). It is to be noticed that the maximum imprisonment is, in all corrupt practices, lighter on conviction before an Election Court than on indictment. The disabilities incurred by persons guilty of persona PUNISHMENT FOR. PUNISH- tion are the same as those inflicted on persons guilty of MENT FOR. bribery see ante, p. 10. for. : Indictment It is not necessary to state in the indictment, or to prove at the trial, that the presiding officer at the booth, where the offence of personation was committed, was duly appointed: R. v. Garvey, 16 Cox, C. C. 253. For Form of Indictment, see R. v. Fox, 16 Cox, C. C. 166. Production of ballot papers. GENERAL As to the production of ballot papers, counterfoils, and marked registers in evidence upon the trial, see Reg. v. Beardsall, 1 Q. B. D. 452; 45 L. J. M. C. 157. An election will be avoided by such general corruption, PERSONA- bribery, treating, or intimidation at the election as would TION. by the common law of Parliament avoid a parliamentary election: 45 & 46 Vict. c. 50, s. 81. It is to be noticed that general personation is not expressly mentioned in this section, but it is doubtless included under general corruption. But section 87 (1) (a) of that Act expressly provides that a municipal election may be questioned on the ground of general personation. These sections are applied to county council elections by 51 & 52 Vict. c. 41, s. 75; to school board elections by 47 & 48 Vict. c. 70, s. 36; and to the other elections under consideration by 56 & 57 Vict. c. 73, s. 48. It has been already pointed out that a parliamentary election may be avoided at common law by general bribery, treating, or intimidation, although not brought home to the candidate or his agents: see ante, pp. 304, 317, 331; and that an election will not be avoided upon this ground unless the corruption is shown to have been so extensive that there could not have been a free election. The same principles apply to general personation. Formerly, when the inquiry into the voter's title took place at the poll, even individual personation was difficult; and although individual personation is now more easy of commission, it is very unlikely that it could be so extensively committed as to amount to general personation. |