#### THE STATE vs. GEORGE BOYETT.

When a man is indicted, under the Statute, for “knowingly and fraudulently voting at an election,’ when he is not qualified to vote, he cannot justify himself by shewing, that he was advised by a very respectable gentleman that he had a right to vote ; for the maxim that “ignorance of the law escuses no man,” applies as strongly to this case as to any other.

The case of the Slate v. Diclcens, 1 Hay. 406, cited and approved.

Appeal from the Superior Court of Law of Johnston County, at the Fall Term 1849, his Honor Judge Battle presiding.

The defendant was indicted for voting, knowingly and fraudulently, at a constable’s election, held for one of the ■captain’s districts in the County of Johnston, in January •1849. On the trial, it was proved, that the defendant voted for constable in the district mentioned in the indictment, having been a resident in the ¿¡aid district for less than six months, immediately preceding the said election. It was also proved, that he did not mention the *337fact of his non-residence for six months to the inspectors of the polls of the said election, and that they did not know of such want of the requisite time of residence. The defendant offered to prove, that, before he gave his vote, he took the advice of a highly respectable and intelligent gentleman, as to his right to vote : that the said gentleman advised, that he had a right so to vote ; and that he voted in consequence of such advice. The gentleman consulted was admitted not to be a gentleman of the bar.

The counsel for the defendant insisted, that the testimony was competent to show that he had not voted fraudulently, but in good faith.

The Court held, that the testimony was inadmissible, and that it would have been so, even if the gentleman, whose advice was taken by the defendant, had been a member of the bar: that the defendant was bound to know the constitution and laws of his country ; and that ignorance of them in him and his advisers would not excuse, though it might be proper to be heard by the Court, after conviction, in mitigation of the punishment. The Court expressed the further opinion, that, if the defendant had voted in ignorance of a matter of fact, or had stated truly and fairly the facts of his case to the inspectors and they had decided in favor of his voting, then he could not be deemed guilty.

The defendant was convicted, fined six-pence and costs, and appealed.

Attorney General, for the State.

fí. W. Miller, with whom was J. H. Bryan, for the defendant, submitted the following argument:

The words of the act of 1844 — 5 are, “If any person shall hereafter knowingly and fraudulently vote at any election, who by law shall not be entitled to vote at such election, he shall,” &c. IredeWs Man. 91,

*338So far, it follows the language of the penal Statute, passed 1777, (Rev. Stat. Ch. 52, Sec 30,) against illegal voting, except that the words, “knowingly and fraudulently,” are not in that act.

It is submitted, that the offence intended to be created by the Statute is the fraudulent voting at an election. There must not only be an illegal voting, but, coupled with it, & fraudulent purpose or intent.

If the Legislature meant to punish the act. of voting, “not being entitled to vote” excluding all enquiry into the intent — the motive of the voter, why use the terms, “knowingly and fraudulently V’ Its meaning could have been much more clearly expressed by adopting the words of the penal Statute of 1777.

These words are material. Without them an indictment would not be good. 3 Bacon’s Abt. 569, Indt.

If the intent — the quo animo, be not of the essence of the offence, then the defendant is shut out from all evidence, when it has been established, that he voted “not being entitled to vote.” But it is admitted that he can shew a mistake in matters of fact, as that he voted under a deed calling for fifty acres, when there was,a less number — or that he was mistaken in his age. What is the object of such evidence, if nqfrto explain the intent of the voter ? But if the intent is of no importance, and the offence was complete when the illegal vote was given, no matter what the motive, then such evidence wmuld be wholly irrelevant.

Let it be conceded, that the case is made out against the defendant, when it is proved that he voted “not being entitled to vote,” still, is he precluded from shewing, that he voted under an honest, a bona fide belief that he had a right to vote ?

The maxim, ‘Hgnorantia juris non excusat,” does not apply to offences created by Statute, where the intent— the quo animo, is a propor inquiry for the jury. But if it *339applies at all, then, it is submitted, it does not extend to mistakes and ignorance of collateral questions of law, such for instance as questions of title — the legal effect of deeds and wills — the validity of the probate of such writings, &c.

The evidence offered in this case was not intended to shew ignorance or mistake of the law, creating the offence, but assuming that he knew the provisions of the Act of 1844-5, it was.offered, to show that he sought informa» tion as to his right to vote, and that, acting under this information, although he voted, “not being entitled to vote,” yet he did not thus vote “knowingly and fraudulently.” Of course it would be for the jury to say whether the information was sought for, and acted upon, in good faith.

This Court has decided that the deed of a feme covert, whose private examination has been irregularly taken, is void. Would a defendant indicted for voting in the Senate be precluded from shewing such a deed in evidence, in connection with the fact that he had often voted under it before ? Would evidence going to show that he had, at a previous election, exhibited the deed to the Poll holders, and they had permitted him to vote under it, be excluded ?

This Court has repeatedly decided that a sale under a fi. fa. bearing teste after the death of the defendant therein, his heirs not having been made parties, is void, and the purchaser acquires no title. Would the sheriff’s deed in such a case, with evidence of possession under it for years, be rejected when offered in behalf of a defendant, indicted for a vote cast under such a deed ?

Other cases could be put, going to show that the exclusion of evidence of a bona fide mistake or ignorance of the qualifications of voters would give the Act of 1844-5 a severity, which was not intended by the Legislature.

Some such cases might be drawn from the opinions and practice, which prevailed amongst the most enlightened *340men of the State, in reference to the rights to vote as between grantor, trustee, and cestuis que trust, especially before the able opinion of this Court (delivered by the Chief Justice) under a request from the Senate, at the last Session of the Legislature.

Had the Senate, in the ease of the contested election, which was before them, decided the questions of law for itself, and passed a Resolution that in its opinion, the trustee alone was entitled to vote, would such a trustee thus voting, and indicted under the Act of’44-5, be excluded from evidence, shewing, that immediately before his vote was cast, that Resolution was read to.him from the Journal of the Senate!

Would it avail a defendant nothing to shew, that, being illiterate, he asked one of the Poll holders, when not acting in his official capacity, to read the law, defining the qualifications of voters, and he read it purposely wrong, by which he was deceived and led to cast an illegal vote !

It is conceded by the State, that had the defendant submitted the question of bis qualifications to the Poll holders, and they had passed upon it officially, and allowed him to vote, this would have excused him, bemuse their decision is final. It is submitted, this is not the reason why their decision can be given in evidence : but that it is admissible to shew the intent oí the voter; for if it were otherwise, and as contended for, then the most flagrant frauds upon the ballot box would go unpunished — the most cunning imposition upon the Poll holders, could be practiced with impunity, provided a favorable opinion be obtained from them, acting in their quasi judicial capacity.

But there are analogous principles of law, which may serve us.

la perjury it is necessary to aver and prove, that the oath was taken “wilfully and corruptly.” for, “if done *341from inadvertence or mistake, it cannot amount to voluntary or corrupt perjury.” Arch. Crim. Law, 428.

B. is indicted for stealing the horse of A. It being necessary to prove property in A., he is examined for that purpose. Subsequently he is indicted for perjury. Would evidence, shewing that he was mistaken in the legal effects of a deed under which he claimed the property, be rejected ? Would the deed itself, though void or of no legal effect, be excluded ?

A defendant is arrested under a ca. sa., files a schedule and swears to it. He is indicted under the 17th Section of the Act for the relief of Insolvent Debtors. Rev. Stat. ch. 58. The State proves that he left out of the schedule certain property, which came by his wife ; would the defendant be precluded from exhibiting in evidence a marriage settlement, whieh appears to be void as against creditors, under the decision of this Court in the case of Smith v. Castrix, 5 Ire. 518. Would the Court reject such evidence when offered to shew, that the oath was not taken “wilfully and corruptly V’

The principles laid down in the case of Saunders v. Smallioood, 8 Ire. 125, may afford some aid under this view of the case. That was an action of debt on a bond, and a plea of a certificate of bankruptcy to the defendant, as a voluntary bankrupt. The plaintiff replied, that, at the time the defendant exhibited his petition in bankruptcy, he was seized of certain property which he did’ not set forth in the petition or any inventory annexed, but fraudulently concealed the same, ¿j-c. The case was brought up to this Court upon facts agreed, from which it appeared, that, before the marriage of the defendant, there was a settlement of property on his wife, which was -proved before the Clerk of the County Court and on that account void against the husband’s creditors. It was contended for the plaintiff, that the defendant was presumed to know the legal effect of the probate of the deed, *342and ignorance of the law did not excuse him. In delivering the opinion of the Court, his Honor, (the Chief Justice,) after declaring the deed void in law against the defendant’s creditors, says : “But admitting the property to have been in the defendant for the benefit of his creditors, it is not the necessary consequence, that his certificate of bankruptcy can be impeached and avoided, for the omission to insert that property in his inventory, or otherwise disclose it to the Court sitting in Bankruptcy. For such omission may have been innocent, as the defendant might not have been aware of the legal insufficiency of the probate, or indeed might not have known how, in point of fact, the deed was proved, and the act of Congress does not invalidate the discharge for every omission of property, but onlyjfor some fraud or wilful concealment of property,” fc.

To constitute larceny the faking must he felonious. It is the peculiar province of the jury to decide upon the intention of one charged with larceny. 2 Star. 827.

“It is a good defence in larceny to shew that the taking was bona fide, under a supposed claim of right, however unfounded such claim may be.” 2 Slarkie 828

Under this principle, the Court would not reject evidence “of claim of right,” founded upon a deed, void in law, but which the defendant had been advised was good, and gave him a valid title. Such proof would go to repel the animus furandi.

It is submitted in conclusion, and with due deference, that the effect of the principle laid down by the learned Judge below, is to strike out from the Statute the words knowingly and fraudulently, and thereby to place mistake and frand, misjudgment and villany, on the same footing. Such was not the intention of the Legislature. It had already provided a penalty against illegal voting, whatever the intent of the voter. This was an ample provision against voting “not being entitled to vote,” *343where the purpose was honest ; but it was not sufficient punishment where the object of the voter was fraudulent and corrupt. This defect the Act of 1S44-5 was intended to supply.

To place the construction contended for on this Act, would not diminish the number of fraudulent and dishonest voters — whilst it would drive from the polls many upright men, who, though told by the best advisers that they are legally entitled to vote, will forego the privilege, before they will run the risk of an indictment under this Statute.

Pearson, J.

“Ignoraniia legisnerninem excúsate Everyone competent to act for himself is presumed to know the law. No one is allowed to excuse himself by pleading ignorance. Courts are compelled to act upon.this rule, as well in criminal as civil matters. It lies at the foundation of the administration of justice. And there is no telling to what extent, if admissible, the plea of ignorance would be carried, or the degree of embarrassment, that would be introduced into every trial, by conflicting evidence upon the question of ignorance.

In civil matters, it is admitted, the presumption is frequently not in accordance with the truth. The sales of property are complicated systems — the result, “not of the reason of any one man, but of many men put together lienee, they are not often understood, and more frequently not properly applied, and the presumption can only be justified upon the ground of necessity.

But, in criminal matters, the presumption most usually accords with the truth. As to such as are mala in se, every one has an innate sense of right and wrong, which enables him to know when ho violates the law, and it is of no consequence, if he be not able to give the name, by which the offence is known in the law books, or to point out the nice distinctions between the different grades of *344offence. As to such as are "mala prohibüa,” they depend upon statutes printed and published and put within the reach of every one ; so that no one has a right to complain, if a presumption, necessary to the administration of the law, is applied to him. To allow ignorance as an excuse would be to offer a reward to the ignorant.

The defendant voted, when he was not entitled by law to vote. lie is presumed to know the law. Hence, he voted, knowing that he had no right, and, acting with this knowledge, he necessarily committed a fraud upon the public— in the words of the Act, he knowingly and fraudulently voted when he was not entitled to vote. It being proved on the part of the State that he voted, not having resided within the bounds of the company for six months next preceding the election, a case was made out against him.

, He offered to prove, for the purpose of rebutting the inference of-fraud, that he had stated the facts to a respectable gentleman, who advised him he had a right to vote. His Honor held the testimony inadmissible. We concur in that opinion. The evidence had no tendency to rebut the inference of fraud, for the inference was made from his presumed knowledge of the law, and that presumption could not be met by any such proof, without introducing all the evils, which the rule was intended to avoid. The question, in effect, was : shall a man be allowed, in excuse of a violation of the law, to prove, that lie was ignorant of the very law, under which he professed to act,-and under which he claimed the privilege of voting? If he was not ignorant of the law, and that he cannot be heard to allege, then, he voted knowingly, and, by necessary inference, fraudulently.

. Jin indictment for extortion charges, that the dt fendant received the fee “unlawfully, corruptly, deceitfully and extorsively.” This averment the State must prove. It is done by showing, that the defendant received what the law does not allow him to take ; for, the presumption *345is, “he knew the law upon the subject of fees to be taken by himself,” and the inference from such knowledge is, that he acted “corruptly and deceitfully,” (words quite as strong as knowingly and fraudulently,) unless it is shown, that he did so by some inadvertence, or mistake in calculation. He cannot excuse himself for taking more-than the legal fee, by saying, that he was misled by the advice of an attorney. If such, or the like excuses were admitted, it would hardly ever be possible to convict. He might always contrive to ground his conduct upon misapprehension or improper advice. State v. Dickens, 1. Hay. 406.

It would be a different question, if the defendant had-stated the facts to the judges of the election, and they had' decided in favor of his right to vote, for their decision would rebut the presumption of knowledge on his part, in a manner contemplated by law.

The case was ably argued for the defendant. It was insisted, that it was necessary for the State to aver and prove, that the defendant voted knowingly and fraudu lently. That position is admitted. The reply is, the averment was made and was proved ; for, proof being made that he voted when he was not entitled to vote, the presumption is, that he knew the law, and fraud is the necessary inference, as corruption and deceit were in the case above cited. It cannot be contended, that to fix him with knowledge, the State must show, that some one read and explained the law to him. or to fix him with fraud, that it must be proven, he had been bribed. If so, the Statute is a dead letter.

Our attention was called to the fact, that the Act of 1S44, making the offence indictable, uses the words, “knowingly and fraudulently,” which words are not used in the Act of 1777, imposing a penalty.

To incur the penalty under the Act of 1777, the voting must be unlawful, and it roust be done knowingly and *346fraudulently in the sense above explained. If one, having a deed for fifíy acres of land, votes in the Senate, and it turns out that the deed only contains forty-nine acres, the penalty is not incurred, unless he knew the fact at the time he voted. So, if one votes for a constable, and it turns out that the dividing line includes him in another company, the penalty- is not incurred, unless he knew the fact or believed that the true lino put him in the other company'. There is not in either case that criminal intent, which is a necessary ingredient ot the offence, whether it be punished by a penalty or by indictment. The Act of 1844 expresses in so many words what the law would have implied. It is a strained inference, that, by' so doing, the Legislature intended to make the case of illegal voting an “exception,” and to take it out of the rule “ignorantia legis,” a rule which has always been acted upon in our law, and in the laws of every nation, of which we have any knowledge, and without which, in fact, the law cannot be administered. The inference sought to be made results in this — the Legislature did not intend the Act of 1844 to be carried into effect — it was intended to be “hrutvm fulmén.” No reason has been suggested for making an exception in this case. The only additional qualification, to that of a voter for a me mber of the House of Commons, is a residence of six months in the captain’s company. This is not complicated or difficult to be understood. Why make the exception and offer a reward for ignorance in this particular case ? Such a construction cannot be admitted, unless the law makers had declared their intention by positive enactment.

Per Cubiam.

There is no error in the Court below and the same must be so certified.