I cannot agree with the holding of the majority that the words "except upon a lawful errand and for a proper purpose" are a part of the description of the offense intended to be prohibited by Code, 3-7-12, and the majority opinion, as I interpret it, is wholly based upon that construction of the statute.
The Legislature of 1891, by an act entitled "AN ACT amending and re-enacting chapter three of the code of West Virginia, concerning elections by the people", provided: "If any person not herein authorized so to do, shall enter or attempt to enter the election ward, or shall remain within sixty feet of the polling place, contrary to the provisions hereinbefore made, he shall be guilty of a misdemeanor, and, on conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars, and confined in the county jail not less than thirty days." In Barnes' Code, 1923, Chapter 3, Section 81, liberties are taken with the legislative enactment aforesaid, and it is made to read: "If any person not herein authorized so to do, shall enter or attempt to enter the election room, or shall remain within sixty feet of the polling place, contrary to the provisions hereinbefore made, he shall be guilty of a misdemeanor, and, on conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars, and confined in the county jail not less than thirty days."
It would seem from these quotations that, prior to the Code revision of 1931, the mere presence of an unauthorized person in an election ward or room, or within sixty *Page 734 feet of the polling place, constituted an offense. We tread on dangerous ground when we attempt to interpret the intent and purpose of the Legislature, but we may assume that the revisers of the Code of 1931, and the Legislature which adopted that revision, had in mind the fact that the statute, as it had theretofore existed, was too rigid, for the reason that in practice it might sometimes be necessary for persons other than election officers and voters to enter the election grounds and the election room. To illustrate, an election officer might become ill and require the attention of a physician, or require assistance in being removed from the election room; turmoil and disorder might require the presence of an officer of the law to restore order; food and drink for election officials might be required; and many other situations might arise wherein it would be entirely proper for persons other than election officials to be present. For this reason, I assume, the statute was changed to read as follows: "If any person, not herein authorized so to do, shall enter or attempt to enter the election room, except upon a lawful errand and for a proper purpose, or shall remain within sixty feet of the polling place, contrary to the provisions of this chapter, he shall be guilty of a misdemeanor, and, on conviction thereof, shall be fined not more than five hundred dollars, or confined in the county jail for not more than thirty days."
In my opinion, the clear purpose of the Legislature in its enactment of 1891, and in the 1931 revision of the Code, was to protect election rooms and polling places by prohibiting the presence of any and all persons not authorized to be there present. Necessarily, voters were excluded from the terms of the statutes, because their right to be present and to vote could not thus be interfered with. I think the insertion of the words "except upon a lawful errand and for a proper purpose" in the 1931 Code was merely to provide an excuse which could be employed by unauthorized persons who had gone to the election room or the election grounds upon a lawful errand or for a proper purpose. I do not think these *Page 735 words were used as a part of the description of the offense intended to be prohibited.
The indictment in this case is held to be insufficient in that it does not allege wherein the defendant was present in the election room on the occasion here under consideration not upon a lawful errand and not for a proper purpose. The indictment charges that defendant "did unlawfully and without authority enter the election room of Voting Precinct No. 59 in Meadow Bluff District, Greenbrier County, West Virginia, while the May, 1944, Primary Election was being held and conducted therein as provided by law, on the date aforsaid, he, the said Gearls R. Garner not being then and there upon a lawful errand and not being then and there in the election room aforesaid for a proper purpose, against the peace and dignity of the State." It charged defendant with being in the election room unlawfully, and also charged that he was not then and there upon a lawful errand or for a proper purpose. Under the 1931 revision of the statute, it was, no doubt, necessary to negative the fact that he was there on a lawful errand and for a proper purpose. He was plainly advised of the charge against him, and substantially in the language of the statute. That, I think, was all that was required. It is scarcely conceivable that the Legislature intended to impose upon the State the burden of alleging facts which, in many instances, would be impossible to establish. Of course, in an instance where a person entered an election room and engaged in disorderly conduct, or interfered with the conduct of the election, his acts and conduct would not constitute a lawful errand or a proper purpose; but in many instances persons might enter an election room, remain quiet, doing nothing to interfere with the conduct of the election, and their purpose in so doing would rest entirely in the minds of the offenders. In such case it would be difficult to frame a charge against them, and certainly impossible to establish that they had committed any offense. I am, therefore, of the opinion that the indictment in this case was sufficient. *Page 736
If the indictment should be held good, the question then arises on whom rests the burden of establishing that a person charged with presence in an election room, under the statute, was there upon an unlawful errand or for an improper purpose. In my opinion, the presence of a person in an election room or upon the election grounds within sixty feet of the polling place is the offense sought to be prohibited, and the burden of establishing that he was there upon a lawful errand, or for a proper purpose, rests upon the accused. I take this position on the ground that it is entirely within the power of the accused to furnish an excuse for his unauthorized presence, and in many situations, it would be beyond the power of the State to establish that he was there on an unlawful errand or for an improper purpose. In the final analysis, whether his excuse is to be accepted rests upon the jury before whom his case is tried, subject to the control of the trial court and this Court.
I am concerned as to the effect of the decision of the majority upon the conduct of future elections in this State. As stated above, in many instances, it would not be difficult for the State to establish the presence of a person at a polling place or upon the election grounds as improper; but in many other instances it would be impossible to establish that fact. Therefore, when we establish a rule under which it would be possible for political organizations to place men in every election precinct in this State, who, during their presence therein, merely stand by and observe the conduct of the election, and where the State is placed under the necessity of proving the impossible, namely, that they were there for an improper purpose or upon an unlawful errand, I fear the whole purpose and intent of the statute is nullified. The construction of the statute for which I contend would impose no hardship or danger on any person who might be called to the election room for a legitimate purpose.
In this case defendant attempted to excuse his presence *Page 737 in the election room. Presumably he thought that, under the statute, it was incumbent on him to do so. He was there on three occasions: first, in the morning before the polls were opened, and, second, when he went there for the purpose of voting. His presence on both of these occasions was not an offense. The case for conviction rests upon his presence there in the evening while the election officials were tabulating the vote. He offers no lawful excuse for being there on that occasion, and the jury so found. In the circumstances, the penalty imposed may seem severe, but this Court is without power to control the discretion of the trial court in that respect.
I would affirm the judgment.
I am authorized to state that Judge Kenna concurs in this memorandum.