These actions came into this court on petitions in error to the common pleas court of Cuyahoga county, the purpose being *Page 22 to reverse judgments of conviction against the plaintiffs in error who were defendants below.
Several errors are alleged as to why this judgment of conviction is erroneous and should be reversed, and, in order to understand the situation, it will be necessary to recite some of the salient facts relating to the matter in question.
It seems that the plaintiffs in error, together with one James Neville, were indicted under Section 13350, General Code, which reads as follows:
"Whoever, from the time ballots are cast or voted until the time has expired for using them as evidence in a contest of election, wilfully and with fraudulent intent, inscribes, writes or causes to be inscribed or written in or upon a poll-book, tally-sheet or list, lawfully made or kept at an election, or in or upon a book or paper purporting to be such, or upon an election return, or upon a book or paper containing such return, the name of a person not entitled to vote at such election or not voting thereat, or a fictitious name, or, within such time, wrongfully changes, alters, erases or tampers with a name, word or figure contained in such poll-book, tally-sheet, list-book or paper, or falsifies, marks or writes thereon with intent to defeat, hinder or prevent a fair expression of the will of the people at such election, shall be imprisoned in the penitentiary not less than one year nor more than three years."
The indictment alleges that the defendants, on the 14th day of August, 1928, after the ballots had been cast and voted at said election, fraudulently wrote into the poll book the names of 70 persons, more or less, not voting at said primary election, with intent to defeat, hinder, or prevent a fair expression *Page 23 of the will of the people at such election, contrary to the statute in such case made and provided. The record shows, as the law provides, that the state-wide primary was held on the 14th day of August, 1928. The soundness and validity of this indictment was challenged by demurrer and motions to quash; the theory being, first, that the indictment was so indefinite as to time that it did not state a punishable crime on its face. This argument is based upon that part of the statute which provides that an indictment may be returned, laying the time from between the date on which and after the ballots are cast or voted and the date when the time has expired for using them as evidence in a contest of election, and the statute in such case, Section 5090-1, General Code, provides that it shall be 30 days; and it is argued that, inasmuch as the indictment did not say that this alleged criminal act took place between the time after which the ballots were cast and the time in which the election might be contested, it was so indefinite as to time that it did not state an offense.
Although the indictment does allege that the alleged tampering with the poll book and tally sheets took place after the ballots were cast on the 14th day of August, 1928, that is, the same day on which the election took place, after the ballots were cast, it is argued that, inasmuch as there can be no contest at a primary election, the statute which relates to contest does not apply, and therefore there would be no time wherein they could allege the so-called crime to have been committed, and therefore that there was no crime committed within the meaning of the criminal statute. Whether there can be a contest *Page 24 of a primary election it is not necessary for us to decide. The Supreme Court in State, ex rel. Meck, v. Board of Elections,111 Ohio St. 203, 145 N.E. 28, avoided deciding that question, saying in so many words that it did not decide the question as to whether there could or could not be a contest of a primary election, but we do not conceive it to be necessary to have that question decided, nor do we think that it follows that the crime as alleged in this indictment could not be committed, even though there could be no contest of a primary election. We think that the 30 days mentioned in the statute — and it being a general statute of the state of Ohio, the court must take judicial notice of such statute — simply mark out a time within which the commission of such a crime as alleged in this indictment must be laid, and we think that statute, so far as the time was concerned, applies to a primary election as well as to a general election. Now if that is so, the court, taking judicial notice of the statute laying down the time within which the commission of the crime must be laid in the indictment, when the indictment alleges that the crime is committed on the 14th day of August, 1928, after the ballots have been cast, we think it certainly states a time within the period within which the commission of such a crime must be laid, and surely, since the purpose of having a time pointed out in the indictment is to apprise the defendants of the time when they are charged with the commission of the offense or crime with such certainty that they are able to meet the charge as to time, there can be no objection to that in this indictment.
Further, it is urged that this statute cited does *Page 25 not apply to primary elections, but only to general elections. In this connection I wish to quote the following from Section 13324, General Code:
"All provisions and requirements of law to preserve and protect the purity of elections, and all penalties for the violation of such laws shall apply and be enforced as to all primary elections."
Now this question was raised when they attacked this indictment in the trial court, and in whatever way the attack was made the trial court overruled the contention of the defendants below, to which ruling the defendants took the proper exception, and they raised that question in this court in a proper way, and so it was necessary for us to have said what we have said and to say what we further say in respect to the indictment and its sufficiency.
After the motions to quash and the demurrers were overruled, and an exception taken, the indictment was nollied as to James Neville, and a jury was empaneled and sworn to try the other two defendants, Kahoun and Mazanec, and, after trial to a jury, the jury brought in a verdict of guilty against both defendants, and they were sentenced to the penitentiary by the presiding judge for a period of one year, and are now in the penitentiary serving that sentence. The trial court refusing to admit the defendants to bail, and, the defendants not seeking a suspension of the sentence in the Court of Appeals, the sentence is now being carried into effect, and these defendants are now serving their sentences in the Ohio penitentiary, and it is to reverse the judgments under which they are serving that sentence that error proceedings are prosecuted here.
As already stated, several errors are urged as to *Page 26 why this judgment of conviction should be reversed. We have gone over this record and heard the arguments of counsel and have familiarized ourselves with the briefs, and we are constrained to overrule the contention of the plaintiffs in error as to the ground that the indictment did not charge an offense within the meaning of the Ohio statutes. We think that the statute was meant to protect the purity of the ballot both at primary and general elections. It is just as important, nay, more important, to provide safeguards that proper and suitable persons shall benominated as it is that any particular ones be elected, because, if you get improper persons, or if improper persons can use the primary to nominate improper candidates, the public will not be permitted in the general election to vote for proper candidates, and so the very fountain head of our government and the purity of the administration of its affairs must depend largely upon the character of the persons that are nominated; hence, if an unscrupulous set of persons can succeed in corrupting the very source of political power by illegally naming persons who are not the choice of the public, they can defeat the very end and aim of government; and so, when laws were passed for the purpose of protecting the purity of the ballot, the Legislature must necessarily have meant to protect the public at the very source of power, that is, at the election which nominates the persons who are to govern and carry on the affairs of the public. Therefore we think that the Legislature clearly intended that the law that we have cited should apply to primary as well as to general elections, and the court did not commit any error in overruling the motion or refusing *Page 27 to quash the indictment in this respect; nor do we think that the question whether there could or could not be a contest of a primary election is the governing factor in the case. As already stated, if there can be no contest, the statute which provides for the preservation of the ballots until after the contest time simply marks out the period of time when the indictment might be laid, and it is not necessary to be able to contest a primary election in order to have one indicted for the crime of tampering with the poll book and tally sheets if the time laid in the indictment is within the time between the casting of the ballots on election day and 30 days thereafter. But even the right to contest a primary election is a mooted question in Ohio, as the Supreme Court asserts in State, ex rel., v. Board of Elections,supra. So in this respect the errors urged are not maintainable.
It is urged, however, that the attorney general was guilty of misconduct in at least two particulars, and, in order to set forth this claim of misconduct, we must recite more of what is current history. This was the third time that these two men, whose names were left in the indictment, were tried. On the two former trials the jury disagreed. Of course, a matter of the public notoriety of this case, and the fact that two juries had disagreed, would be almost common knowledge, and so in the case here, in which these men were convicted, the last of the three trials, the learned counsel for the defendants asked of the veniremen before they were accepted in the panel whether or not they had read in the newspapers that this case had been tried before and that the jury had disagreed, and that upon one of the ballots the jury *Page 28 stood eleven to one for acquittal. This question was asked by Mr. Minshall of the talesmen, and it was followed up by other questions as to whether they had read in the newspaper that the jury had disagreed a second time, when the jury stood nine to three. I think this question was propounded as much as six separate times to as many different veniremen. When, after the door had thus been opened, the attorney general asked one venireman whether or not he had read in the newspapers that at the last trial in which the jury disagreed the jury stood eleven to one for conviction, exception was taken to this, and the court, so far as he could, instructed the jury that they should disregard what any other jury had done, that this case was to be tried and decided upon the evidence that was introduced before this panel in this hearing; but counsel for defendants below, taking his exception, based his argument and a right to reverse this case on the ground of the misconduct of the attorney general.
We do not see how the attorney for the defendants below, plaintiffs in error here, after he had opened the door wide by making inquiries relating to the same subject, can complain because the attorney general likewise asked the question of a proposed talesman. If there was any colloquy between the counsel and the court and the attorney general, it was brought about by the queries of the defendants' counsel, which were just as improper as that of the attorney general could possibly be. I say, we do not see how he can complain about the query of the attorney general. In other words, by his questions on the same subject, he had invited that question from the attorney general, and we do not think that, *Page 29 if there was any error in this, the defendants below are in a position to avail themselves of it, because they, through their counsel, were first to bring the question before the panel.
Another complaint about the misconduct of the attorney general is that, after the evidence had all been introduced, and the state had made its opening argument, the learned counsel for the defendants then told the presiding judge, to use his own words, "You may now charge the jury," which in effect was an announcement that he did not propose to argue the question, whereupon the attorney general, apparently a little surprised, said: "What, no argument?" to which the defendant below took an exception, and afterwards sought to have the jury discharged and the case continued because of the misconduct of the counsel for the state. For one, I cannot see how this prejudiced the defendants below in any way, nor in what way the attorney general was guilty of misconduct in giving expression to what must have been a surprise to him, from the vigorous manner in which the case had been handled by the counsel for the defendants. In any event, we do not think there is any such error in that remark of the attorney general that it would warrant a reviewing court in disturbing the verdict on this ground; nor did the court err when he refused to discharge the jury and continue the case.
It must be remembered that, while this case was of much notoriety, and had been thrice on trial in Cuyahoga county, the defendants, by a very simple application, by filing a few affidavits, could have had a change of venue, if they thought they could not get a fair and impartial trial in Cuyahoga county, and *Page 30 could have had the case transferred to one of the neighboring counties. There is a provision for such a change of venue in our statutes, which the defendants did not seek to avail themselves of, and consequently people must necessarily know more or less about a case that has been tried three times and gained much notoriety.
Another error complained of is that, after the counsel for the defendants announced that he did not desire to argue the case — somewhere along in the afternoon, I believe — the court did noteo instanti charge the jury, but passed it over until the morning, and then charged them, and the error complained of is that the statute provides that the court shall immediately charge the jury. Now this member of the Court of Appeals has had that question before him many times while on the common pleas bench, and has had to construe that statute, and the statute means thatno other business shall intervene. It does not mean the court cannot have time to get his thoughts together and prepare the charge. The court was probably as much taken by surprise by the refusal of the defendants' counsel to argue the case as was the attorney general, and perhaps at that moment was not prepared to give his charge; but there is nothing in this record which shows that the court did any other business. He simply postponed giving the charge until the next morning, presumably that he might gather his thoughts together and perhaps prepare his charge in writing so he might give it to the jury. We do not think there is any error in this respect.
Another ground of error is the refusal of the court in surrebuttal to admit the testimony of one man *Page 31 as to the time when he voted. It seems that the thirty-ninth voter testified that he voted somewhere between 6:15 and 6:30, the polls closing by law at 6:30. The purpose of this evidence was to show that the number of votes that had been polled up to that time during the entire day was, I believe, 39, and only a few minutes were left in which votes could be legally cast, and during those few minutes the record shows that there were cast, not only the balance of the legal votes, alleged to be 42 in all, but 70 more in addition, and it was for the purpose of showing the impossibility of receiving this great number of votes during the short time remaining. Now about this time the testimony of a witness who had testified at a previous trial, whom the sheriff was unable to find, and who was No. 40 on the poll sheet, was offered in surrebuttal to show that he voted between 4:30 and 5:00. It is argued that this testimony would have shown that there was a longer time in which to cast these 70 votes.
Personally, I cannot see any reason why this testimony was not admitted, but the trial court held that it was testimony taken upon a preceding trial in cross-examination, and not for the same purpose for which the witness was then called, and that it was improper in surrebuttal in the instant case. However that might be, we do not think the error was so grave under the circumstances in this case that it would warrant a reviewing court in disturbing the verdict.
Now I come to the last and most important of all of the so-called errors, and that is: Was there any evidence in this record to sustain the verdict, first, against Mazanec, and, second, against Kahoun? *Page 32
At the conclusion of the state's case, separate motions were made to direct a verdict in favor of each of the defendants, which motions were overruled, and it is urged that there was no evidence in the record at that time to show that Mazanec, at least, participated, aided, or abetted in the violation of the law. Mazanec was the presiding judge, and his duty was to be in control, and there was in the record the receipt for his compensation, which showed that he was present and participated and presided in this booth, and that was affirmative proof. Subsequently he got upon the witness stand, and admitted that he was present during the day and presided as presiding judge over that booth during the day.
In reviewing this record, if there was a scintilla of evidence at the conclusion of the state's case connecting Mazanec with this transaction, the final disposition of his rights must be based upon the evidence as it was submitted to the jury, and that evidence shows beyond any question that Mazanec was present and participated in this election and presided over it, and that Kahoun was the clerk in the booth.
It is claimed that there is no evidence to convict Kahoun in this record. Here we have the record, from which apparently 42 valid votes were polled by 6:30 that day. At that time the poll books and sheets which are before us show that 42 persons had appeared irregularly during the day, and that their names had been written down chronologically, one after the other, as each came in, and that they had voted variously for the different candidates that were upon the ticket, and those 42 had been carried out in the poll books. Up to this point each person *Page 33 that had been given the votes at that election had been credited with the proper number of votes cast for him, and then, from there on the poll books show a situation which, but for its truthfulness, would be incredible, and that is, that 70 names, written by Kahoun on the poll book that was given the election officers of that booth by the election board — the election booth being presided over by Mazanec — were listed alphabetically, and I defy any one, in the entire realm of chance, to show any instance where 70 persons come into the booth in alphabetical order to have their names written down in alphabetical order. That could not have been done without the collusion or connivance of Mazanec. It could not have been done except it were done voluntarily. It is impossible to have anybody believe, by the doctrine of chances, that such a thing is possible, that 70 persons, whether they are brought in by ward workers or whether they come in voluntarily, or any other way, would come in and vote in alphabetical order and their names be written down in the poll book in that way. That alone not only proved this lawsuit, beyond a reasonable doubt, of the guilt of Kahoun, but it demonstrates it to a mathematical certainty.
But that is not all: After the 42 regular votes had been carried out and tallied, marked up to the credit of the respective candidates to the number that each had received, there is added to each one of a certain group of candidates — and they are the same in every instance — 70 votes, and where one originally had 33 votes, he has on the tally sheet, as delivered by Mr. Mazanec to the board of elections, 103 votes; and where another man had 39 votes he is credited *Page 34 with 39, plus 70, which make 109 votes; and so on all down the list; and it was done so bunglingly that it seems to have defied criticism, for they added the number boldly to those that were cast and entered upon the poll book before. Whether that was done in that voting booth, or whether it was done somewhere else, it matters but little. Wherever it was done, it was done by Mr. Kahoun, and it could not have been done without the knowledge or connivance of Mr. Mazanec. Mr. Mazanec, knowing that there had been 42 votes polled, carried that poll book and the ballots to the board of elections, and reported there that there had been 112 votes polled in that booth, where, as a matter of fact, there had been but 42.
Another thing, to make it still more a case of demonstration: There were 112 votes or ballots found in the ballot bag, and they were put there and were wired up by Mr. Mazanec. It is singular the condition in which they were when found, as shown by the record in this case. The 42 that were actually cast were on one side of the bag, and they were marked irregularly, with different check marks and for various candidates, as they would and should be if valid and bona fide votes. Then on the other side of the bag were 32 votes, which were marked by the same hand and all marked for the same bunch of candidates, and wedged in between these 32 votes or ballots, marked in that way, and the 42 that had been regularly cast, were 38 ballots that had no mark on whatever, and those ballots and many of them were torn from the book of ballots that had been furnished by the election board, in bunches, because the same fragment of paper that came from *Page 35 the stub was on each ballot the same way, which shows that, instead of these ballots being torn off one by one and being delivered to the voters as they came into the booth, as the law requires, they were torn off in bunches and put in the ballot box and then wired together and carried to the election board by Mazanec, the presiding judge of the booth; and he reported that there were 112 votes cast in that precinct and that the various candidates had the various numbers that had been supplied by him or by Kahoun or by somebody, necessarily with the knowledge and connivance of Mazanec, because it could not have been done in any other way; it could not have been done at all if he had been performing his duty. After the ballots were all cast, if he had taken all the votes and put them in the bag and carried it to the board of elections, as he was bound to do, there could have been no fraud in connection with this vote. And if Mr. Kahoun, or anybody else, was permitted by Mazanec to take those votes to another place, and to add to them, Mazanec cannot plead innocence in that respect, and so the attorney general is right when he argues that the state has not only proven this case beyond a reasonable doubt, but has demonstrated to a mathematical certainty that there was fraud, and that the statute under which these men were indicted was violated. When one comes to consider the evidence, leaving out the expert as to handwriting, there are so many marks, so many things, which are unanswerable, that they can point only to one thing, and that is the guilt of the accused, and one wonders, on reading this record and looking at these exhibits, how there ever could have been any disagreement of any kind of any jury. *Page 36
It won't do to lightly slur over a fraud upon the ballot, for the very foundation of our government, of a democracy, is based upon the sacredness of the right to vote, and that right to vote is like the will-o'-the-wisp, unless fraud be detected and punished. If a few men for the purpose of aiding some friends, or for any reason whatever, can defeat the will of the people, and force on them persons whom they did not select as their candidates, or defeat the will of the people in a general election, then we might as well close up our courts and forget that there ever was a democracy and admit that self-government is a failure; and I for one have not come to that conclusion. It won't do to treat lightly these matters and to smile on them because perhaps they have been of frequent occurrence. I am afraid, from this record and the crudeness and boldness with which the whole thing was accomplished, that it indicates that it was done many, many times before; but, if men who do these things are punished, it will throw the fear of God into the hearts of those who have the election machinery in hand, and it is encouraging to know that a jury of citizens in our own county have the bravery and fortitude to find men guilty, no matter how they may sympathize with them, because there can be no more serious crime than this, and it is striking at the very foundation of our government, and it won't do to smilingly set it aside.
We think upon reviewing this record that the guilt of these accused has been proven beyond a reasonable doubt; nay, it has been demonstrated to a mathematical certainty, and the court would be stultifying itself if it reversed this case.
Having reviewed the entire record and disposed *Page 37 of all the claims of error that are made in this case, we can see no reason why this verdict should be disturbed.