duce other persons to subscribe. It also appeared that the board extended the time year after year for the election to be made by the directors whether they would or not diminish the number of shares for which they would be accountable, and it was admitted that the defendant, as administrator of Eastman, gave notice to the corporation of his election not to take 25 of the 30 shares subscribed by him. The court held that if no person was to be affected by the contract but the parties themselves, it would be competent for them to make an agreement for the reduction in the shares, and that the two writings might be considered both as parts of the same agreement, but that they should be regarded as separate and independent contracts whenever it was necessary to so regard them to protect innocent third parties against the fraud attempted to be practiced, upon them by means of it. The court held the agreement for a reduction of the shares to be void, and in delivering the opinion observed:

"The fraud in this case consists not in the fact the parties agreed that the intestate should have the right to repudiate his subscription to a certain extent, but in suppressing that material feature in the agreement, and in holding out to others as their contract one which speaks in very different terms from that which, in fact, they made. If the conditional character of the subscription had appeared upon the subscription book itself, by inserting the provision that the intestate was at liberty thus to reduce his subscription, no person could have been deceived, and the contract would undoubtedly have been valid. The parties, for the purposes of deception, severed and disconnected the conditional stipulation from the contract, so as to render it on its face an absolute engagement by the intestate to pay for the thirty shares, and in this form held it out to others as their true contract."

The case under consideration obviously differs from this in the facts that the defendant never perfected his subscription by taking his certificate and paying his first installment, and never acted or held himself out as a stockholder, and there was not the slightest evidence of an intent on his part to defraud, or anything to warrant the belief that defendant's name was ever used as an inducement to other persons to subscribe. The case of Melvin v. Lamar Ins. Co., 80 Ill. 446, is equally wanting in analogy. In this case the defendants took 5,500 shares of stock in an insurance company, paid 20 per cent. down in cash, and received certificates. The agreement under which they took the stock provided that they might, at their option, surrender it, when the certificates would be canceled and the money repaid. Subsequently all this stock was surrendered and canceled. Meantime, however, defendants were held out as large stockholders. bled the company to obtain the proper certificate from the state auditor's office and to procure other subscribers to a large amount. The transaction was held to be a fraud, partly upon the authority of the New Hampshire case, which it much resembles, but for the same reasons is not controlling here.

This ena

The case, then, is substantially this: The defendant agreed to take 50 shares of stock, with the understanding that he might withdraw

within a certain time if he chose. He elected to withdraw within this time, and notified the agent of the company, who assented to such withdrawal, and released him. The directors of the company made no effort during the life of the company to collect the installment that should have been paid, or to tender him a certificate. Twelve years thereafter, and long after the statute of limitations had run against any action to recover the original assessment, he is sought to be charged as a stockholder. The attempt to hold him as such is so manifestly unjust that we feel no difficulty as to the proper disposition of the case. The motion for a new trial will therefore be denied.

UNITED STATES v. JACKSON.

SAME V. MOSBY.

(Circuit Court, W. D. Tennessee. November 24, 1885.)

ELECTION LAWS - ENFORCING DUTY OF

1. CRIMINAL LAW REV. ST. § 5515 JUDGES OF ELECTION-STATE LAWS. Congress has undertaken, by section 5515 of the Revised Statutes, to secure a fair election for representatives in congress by compelling the officers of election to discharge every duty devolved upon them in the exercise of that function. The only purpose of looking to the state election laws is to find the measure of those duties, and it is wholly immaterial whether those laws punish a violation of the duty or not, as that is done by the federal law, proprio vigore.

2. SAME-INDICTMENT-SPECIFIC INTENT TO AFFECT THE ELECTION-WHEN IT MUST BE CHARGED AND WHEN NOT NECESSARY.

The specific intent mentioned in the Revised Statutes, § 5515, to affect the election, or the result thereof, applies only to the clause in which it is found, and neither to the clauses preceding or following it, and therefore that intent need not be especially charged by the indictment, where the.conduct complained of does not fall within that particular clause. The subject of special and general intent discussed, and held that the statute provides for two distinct classes of offenses, in one of which the specific intent is necessary to be charged, and the other not.

The indictment was framed under the following section of the Revised Statutes of the United States:

"Sec. 5515. Every officer of an election at which any representative or delegate in congress is voted for, whether such officer of election be appointed or created by or under any law or authority of the United States, or by or under any state, territorial, district, or municipal law or authority, who neglects or refuses to perform any duty in regard to such election required of him by any law of the United States, or of any state or territory thereof; or who violates any duty so imposed; or who knowingly does any acts thereby unauthorized, with intent to affect any such election, or the result thereof; or who fraudulently makes any false certificate of the result of such election in regard to such representative or delegate; or who withholds, conceals, or destroys any certificate of record so required by law respecting the election of any such representative or delegate; or who neglects or refuses to make and return

such certificate as required by law; or who aids, counsels, procures, or advises any voter, person, or officer to do any act by this or any of the preceding sections made a crime, or to omit to do any duty, the omission of which is by this or any of such sections made a crime, or attempts to do so,-shall be punished as prescribed in sections 5510, 5511."

H. W. McCorry, Dist. Atty., and J. B. Clough, Asst. U. S. Atty., for the United States.

T. K. Reddick, C. A. Stainback, and F. T. Edmondson, for defendants.

HAMMOND, J. The demurrer challenges the indictment in this case because, (1) while the state statute may impose a duty on the defendant as averred in the indictment, no state law attaches any penalty for the violation of the statute, and therefore it is not such a duty under the law as congress contemplated by the enactment of section 5515 of the Revised Statutes. (2) The specific statutory "in-. tent to affect the election, or the result thereof," is not charged by the indictment. Rev. St. § 5515.

It requires only a very cursory reading of the statute to show that the first ground of demurrer is not at all well taken. It is the plain purpose of this statute to declare as an offense against the United States, proprio vigore, the neglect, refusal, or violation of any duty imposed upon an officer holding an election for representative in congress by any law, state or federal. It is not necessary, as counsel argue, that the state law imposing the duty shall attach a penalty for its violation in order to make it an offense under this statute. The only object for which we look to the state law is to find the measure of the officer's duty, as one charged with the function of holding the election. Once given a duty to perform in that regard, and its performance is an obligation imposed by this federal statute. Its nonperformance subjects the officer to the penalties here imposed. It is wholly immaterial how the state laws may look upon or treat a violation of his duty; for when the duty is assumed by him he comes immediately within the jurisdiction of this federal law, and must obey it or take the consequences here by this statute itself imposed for any neglect, refusal, or violation of that duty. He cannot escape by saying that the state does not punish the given conduct as an offense against its peace and dignity. It is the peace and dignity of the United States that he violates by every failure to discharge his duty as an officer of election. The United States does not concern itself with other elections, nor with the violation of the state laws as such in any election; but whenever a member of congress is to be elected, this act of congress steps in to protect the people of the whole United States against the evil effects of fraudulent elections by punishing those who hold the election for every violation of duty in the performance of their functions; or, to put it another way, congress seeks by this statute to guard the election of members of congress against any possible unfairness by compelling, under its pains and

penalties, every one concerned in holding the election to a strict and scrupulous observance of every duty devolved upon him while so engaged. This being the object of the statute, its requirements are that every officer of election shall discharge his duties in a manner to accomplish that object. If he does not, he becomes an offender against the laws of the United States, whether he be an offender against the laws of the state or not. This is too plain for any further argument, and that ground of demurrer is overruled.

The other objection is of more importance. Section 1025 of the Revised Statutes of the United States protects an indictment against objections for "any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant." But it has been properly held that where a statute requires that an act shall be accompanied by a particular intent to make it an offense, the omission to charge that intent is one of substance, and not form only. U. S. v. Jackson, 2 Fed. Rep. 502, 504.

It is a familiar principle that no act done or omitted to be done can be an offense without a wrongful intent, but the application of it to that class of offenses arising out of prohibitions by the law of conduct not in itself of an evil nature, is often misunderstood and confusing. I have not time here to go into the intricacies of the subject, either in its relation to moral philosophy or the somewhat narrower requirements of the criminal law, unless the moral philosophy takes into the consideration the governmental power to prohibit that which may be otherwise either innocent or good. It is sufficient to say that the legislature may, and often does,-sometimes mistakenly, perhaps, prohibit the doing of a thing which ought to be done, or out of which no harm could arise, and yet the doing of that thing after the prohibition would be a crime, no matter what the intent. The evil intent consists in disobedience to the law. The legislature has the power to judge and does adjudge that the doing of the thing is not for the public good; and, whether its judgment be wise or unwise, it is always binding on the citizen, and the doing of it is a crime. This is particularly so with reference to that class of statutes imposing duties on public officials in the exercise of their public functions. The command of the legislative will must be obeyed, and disobedience is a crime, and may be punished as such.

Now, it is only where the legislature accompanies its prohibition of particular conduct with a declaration that the inhibited act shall be done with a specified intent, that that intent need be either specifically averred by the indictment or specifically proved on the trial. In other cases the wrongful intent inheres in the act itself, is charged by an averment of the doing of the act, and is proved by evidence showing that the act was done. It consists in a violation of the statute, and proves itself when the violation is shown. This is a sufficient statement of the general principles for the purpose we have in hand. It needs no citation of authority to support it, for every work

on criminal law or criminal procedure contains the assertion of them. They were applied, in our jurisprudence, in U. S. v. Cruikshank, 92 U. S. 542; U. S. v. Fox, 95 U. S. 670; U. S. v. Jackson, supra; U. S. v. Wentworth, 11 Fed. Rep. 52; U. S. v. Thomson, 12 Fed. Rep. 245; U. S. v. Houghton, 14 Fed. Rep. 544. In the last case cited it is said: "If one intends to do what he is conscious the law, which every one is presumed to know, forbids, there need not be any other evil intent shown." And, in the last but one: "But in many cases negligence or indifference to duty or consequences is equivalent to a criminal intent." 1 Bish. Crim. Law, (6th Ed.) § 223 et seq; Id. 313 et seq; 1 Bish. Crim. Proc. § 524 et seq.

Turning now to this indictment, and the statute under which it charges the offense, we may say, without special reference to the niceties of the several counts, that it charges that the defendants, being judges of an election for a member of congress at a certain precinct, neglected to perform, refused to perform, and violated the duty of the judges to keep the ballot-box within their sight, by permitting it to be taken out of their presence; secondly, that they neglected and refused to perform, and violated, another duty of the judges to open the box after the close of the election, and count the vote, by permitting it to be carried away before that was done; thirdly, that they violated another duty of the judges to keep the ballots safely, by permitting 377 of them to be taken out of the box before being numbered and counted. This is the substance of the indictment. The objection urged against it is that it does not charge that these acts alleged were done "with the intent to affect the election, or the result thereof."

The contention of defendants is correct, that, no matter how much it may appear, by the nature of the acts charged, that the election would by those acts be affected, if the statute only punishes them when done with the specific intention to affect it, that intention must be averred in the indictment. But in determining whether this be a proper construction of the statute it is necessary to observe that where the given act complained of is in itself of that character which would per se affect the election, or even of that dangerous tendency that, if permitted, it might affect the election, the legislature might, and in its wisdom probably would, prohibit the doing of that act at all, because of the danger that lurks about it, without reference to any special intention at the time to affect the result of the election injuriously. It would be the very place to prohibit carelessness or indifference that might affect an election injuriously, as well as a guilty and corrupt intention to do so. Absolute prohibition of the dangerous act, no matter with what intention, would be the logic of the situation and the surest way to secure the object of the legislature, namely, a fair election. I have not the least doubt such was the object of this statute. It proceeds upon the idea that the performance of every duty devolved upon the officers of an election is necessary to secure a fair election, and that any refusal, neglect, or