A mere intention, unaccompanied by a removal, will not lose a man his residence. The defendant never having actually left the State with an intention to change his residence, he was still a resident, and it took something more than a mere intention as to his future course to lose that residence.

The court erred in overruling the motion for a new trial.

Judgment reversed; cause remanded for a new trial, and for further proceedings.

ELECTIONS—INTERFERING WITH OFFICER - EXTRA-OFFICIAL ACT. COMMONWEALTH v. GIBBS.

[4 Dall. 253.]

In the Supreme Court of Pennsylvania, 1802.

Interfering with Officers of Elections - Officer Acting Outside His Authority. G. was indicted for interfering with an officer of election during an election. It appeared that on G.'s father offering to vote, the officer asked him certain questions which he declined to answer, an altercation following, in which G. threatened the officer. Held, that the question asked by the officer, being outside his duty, G. was not guilty.

This was an indictment on the seventeenth section of the election law,1 which provides (among other things) that "if any officer of election shall be threatened, or violence used to his person, or interrupted in the execution of his duty, every person who shall be guilty of such intimidation, threats, violence or interruption, being convicted thereof, shall be fined and imprisoned for the same, at the discretion of the court, not exceeding six months' imprisonment, nor exceeding one hundred dollars fine."

The facts were briefly these: Mr. Beekley, the prosecutor, was appointed a judge at the general election in October, 1801. Mr. Gibbs, the father of the defendant, presented his ballot, but before accepting it, Mr. Beekley insisted that he should answer the following questions: 1st. Did you, at any time during the American War, join the British army? 2d. Or take an oath of allegiance to the King of Great Britain? 3d. Or were you attainted of treason against the United States or the State of Pennsylvania? Mr. Gibbs declined answering the questions; and (after some altercation) his son, the defendant, shaking his fist at Beekley, said, "I will see you to-morrow."

Two grounds of defence were taken by Ingersoll and Lewis: 1st. That the judge of the election was not in the performance of a duty,

14 State Laws, 342 (Dall. ed.)

when he proposed such questions to an elector. The Act of Assembly declares who may vote; and as to the enumerated requisites to constitute a right of voting, the voter's oath or affirmation may be demanded. After the repeal of the test law, every citizen, who had not been attainted, had a right to vote. But the questions are not pointed to the qualification designated in the act; the answers to those questions might tend to criminate the voter himself; for if attainted, he would still be liable (notwithstanding the treaty of peace) to the corruption of blood, under the old Constitution, the treaty of peace not operating as a reversal of the attainder; and no lawyer ever suggested, or would assert, that a man's vote could be rejected, unless he answered questions thus tending to the exposition of his own guilt.1 2d. That it is material, on the present indictment, to prove that the defendant acted with design to influence unduly, or to overawe the election, or to restrain the freedom of choice; whereas it is evidently the case of a son interposing to protect an aged and infirm parent from insult; and his actions, as well as words were the mere ebullition of sudden passion.

Reed and Dickenson, for the Commonwealth, admitted that no answer could be exacted, which would expose a man to penal consequences; but they insisted that the answers to the questions proposed (though in the affirmation) would not, at this day, involve the voter in any jeopardy of life, liberty, property or penalty. The answers could only prove him (if in the affirmative) to be an alien; and an alien may certainly be compelled to disclose his foreign birth. The questions were calculated to ascertain a fact, on which the right to vote depended. None but citizens can vote. Now, although every man (even a native of America) had a right to choose his party in the revolutionary war,3 yet if he took an oath of allegiance to Great Britian, or joined her armies, he determined his election; and in neither of these cases, any more than in the case of an attainder, could he vote at our elections, as a qualified citizen. If then, the judges of the election acted within the limits of an official discretion, in proposing the questions, the lifted fist, and threatening words of the defendant, bring the case clearly within the description and punishment of the law.

THE COURT delivered a full and decided opinion in the charge to the jury that the questions proposed by the judges of the election were illegal ; that Mr. Beekley could not, therefore, be considered in the execution of his duty, when he insisted upon an answer to those questions; and that, consequently, the defendant was not liable to an indictment, under

11 Styl. Pr. Rep. 675; 3 Bla. Com. 268, 363, 364; Doug. 572; Salk. 153; 4 State Trials,

2 Park. 164.

31 Dall. 53.

the election law (however he might otherwise be charged), for resisting, in the way that he did, the demand upon his father, to answer questions tending to criminate himself.

Verdict, not guilty.

ELECTIONS-BETTING ON ELECTION IN ANOTHER STATE-PAST ELECTION.

STATE v. MCLELLAND.

[4 Sneed, 437].

In the Supreme Court of Tennessee, April, 1857.

1. Betting in one State on an Election held in another State is not indictable in the former.

2. Betting on the Result of an Election after it has taken place is not indictable.

The defendant was presented by the grand jury of the county of Lauderdale at the November term, 1856, of the Circuit Court of said county, for the offense of common gaming, under the act of 1856,1 by betting on the result of the Presidential election in the State of Kentucky, which was pending at the time of said bet; and also by betting on said election in this State, after the same had been held. Judge READ quashed the presentments, and the Attorney-General, on behalf of the State, appealed.

Sneed, Attorney-General, for the State.

No counsel appeared for the defendant.

HARRIS, J., delivered the opinion of the court.

The grand jury for the county of Lauderdale, at the November term of the Circuit Court, 1856, made a presentment against the defendant for unlawful gaming. The presentment charges that on the ninth day of August, 1856, in the county of Lauderdale, the defendant did then and there "game," by betting, wagering and hazarding money, bank bills, etc., of the value of ten dollars, at and upon the result of the vote of the State of Kentucky, in the election for President of the United States of America, which was then and there pending, etc.

On motion of the defendant, the presentment was quashed by the Circuit Court and the Attorney-General on behalf of the State, has appealed in error to this court.

By the seventeenth section of the act of 1841,2 the offense of betting on elections is enacted. By that section it is provided, "that whoever

1 ch. 63, sec. 1.

2 ch. 31, Nicholson's Sup. 156.

when he proposed such questions to an elector. The Act of Assembly declares who may vote; and as to the enumerated requisites to constitute a right of voting, the voter's oath or affirmation may be demanded. After the repeal of the test law, every citizen, who had not been attainted, had a right to vote. But the questions are not pointed to the qualification designated in the act; the answers to those questions might tend to criminate the voter himself; for if attainted, he would still be liable (notwithstanding the treaty of peace) to the corruption of blood, under the old Constitution, the treaty of peace not operating as a reversal of the attainder; and no lawyer ever suggested, or would assert, that a man's vote could be rejected, unless he answered questions thus tending to the exposition of his own guilt.1 2d. That it is material, on the present indictment, to prove that the defendant acted with design to influence unduly, or to overawe the election, or to restrain the freedom of choice; whereas it is evidently the case of a son interposing to protect an aged and infirm parent from insult; and his actions, as well as words were the mere ebullition of sudden passion.

Reed and Dickenson, for the Commonwealth, admitted that no answer could be exacted, which would expose a man to penal consequences; but they insisted that the answers to the questions proposed (though in the affirmation) would not, at this day, involve the voter in any jeopardy of life, liberty, property or penalty. The answers could only prove him (if in the affirmative) to be an alien; and an alien may certainly be compelled to disclose his foreign birth. The questions were calculated to ascertain a fact, on which the right to vote depended. None but citizens can vote. Now, although every man (even a native of America) had a right to choose his party in the revolutionary war,3 yet if he took an oath of allegiance to Great Britian, or joined her armies, he determined his election; and in neither of these cases, any more than in the case of an attainder, could he vote at our elections, as a qualified citizen. If then, the judges of the election acted within the limits of an official discretion, in proposing the questions, the lifted fist, and threatening words of the defendant, bring the case clearly within the description and punishment of the law.

THE COURT delivered a full and decided opinion in the charge to the jury that the questions proposed by the judges of the election were illegal ; that Mr. Beekley could not, therefore, be considered in the execution of his duty, when he insisted upon an answer to those questions; and that, consequently, the defendant was not liable to an indictment, under

11 Styl. Pr. Rep. 675; 3 Bla. Com. 268, 363, 364; Doug. 572; Salk. 153; 4 State Trials,

2 Park. 164.

3 1 Dall. 53.

the election law (however he might otherwise be charged), for resisting, in the way that he did, the demand upon his father, to answer questions tending to criminate himself.

Verdict, not guilty.

ELECTIONS-BETTING ON ELECTION IN ANOTHER STATE - PAST ELECTION.

STATE v. MCLELLAND.

[4 Sneed, 437].

In the Supreme Court of Tennessee, April, 1857.

1. Betting in one State on an Election held in another State is not indictable in the former.

2. Betting on the Result of an Election after it has taken place is not indictable.

The defendant was presented by the grand jury of the county of Lauderdale at the November term, 1856, of the Circuit Court of said county, for the offense of common gaming, under the act of 1856,1by betting on the result of the Presidential election in the State of Kentucky, which was pending at the time of said bet; and also by betting on said election in this State, after the same had been held. Judge READ quashed the presentments, and the Attorney-General, on behalf of the State, appealed.

Sneed, Attorney-General, for the State.

No counsel appeared for the defendant.

HARRIS, J., delivered the opinion of the court.

The grand jury for the county of Lauderdale, at the November term of the Circuit Court, 1856, made a presentment against the defendant for unlawful gaming. The presentment charges that on the ninth day of August, 1856, in the county of Lauderdale, the defendant did then and there "game," by betting, wagering and hazarding money, bank bills, etc., of the value of ten dollars, at and upon the result of the vote of the State of Kentucky, in the election for President of the United States of America, which was then and there pending, etc.

On motion of the defendant, the presentment was quashed by the Circuit Court and the Attorney-General on behalf of the State, has appealed in error to this court.

By the seventeenth section of the act of 1841,2 the offense of betting on elections is enacted. By that section it is provided, "that whoever

1 ch. 63, sec. 1.

2 ch. 31, Nicholson's Sup. 156.