shall bet on any election in this State shall be guilty of a misdemeanor, and may be indicted or presented thereof," etc. And by the first section of the act of 1856,1 it is provided "that betting on elections is declared to be, and is gaming, and shall be punished as other gaming is now punished by law."

It will be observed that the act of 1841 confines the offense to betting on elections in Tennessee, or in the language of the statute," in this State;" and this presentment charges the election on which the bet was made to be in the State of Kentucky. We think the offense, as charged, is not within the statute, and affirm the judgment of the Circuit Court quashing the judgment.

We think proper to remark that there is also before us another presentment against the same party charging that the bet was made on the result of an election after it had taken place, which was also quashed by the Circuit Court and we think properly. The betting on the result of an election after the election has taken place, though immoral, is not within the mischief the Legislature intended to remedy. The mischief was the improper influence in elections which was exerted by the persons who had bet, and who were prompted by their pecuniary interest more than their patriotism in their zeal to carry the election. It is obvious the Legislature meant elections pending, not past. The judgment of the Circuit Court is also affirmed in that case.

ELECTIONS- BETTING ON ELECTION.

STATE v. HENDERSON.

[47 Ind. 127.]

In the Supreme Court of Indiana.

Betting upon the Result of an Election is not gaming.

OSBORN, J. This case is brought here under section 119.2 The point reserved was the ruling of the court upon the sufficiency of the second paragraph of the answer filed by the appellee.

The bill of exceptions shows that the appellee was indicted by the grand jury of Morgan County, for betting and wagering upon the result of the election of governor in 1872; that he appeared and filed an an

1 ch. 63, Pamph. Acts. 70.

22 G. & H. 420.

swer of two paragraphs. The second alleged "that before the indictment was by said grand jury found or presented, said grand jury caused the defendant to be duly subpoenaed before them, to testify as a witness to the facts and matters alleged in said indictment; and that he was by said grand jury then and there, before the finding or presenting of said indictment, compelled to testify, and did testify, as a witness in said cause, and then and there to disclose as such witness all the facts and matters alleged in said indictment, and to prove the said offense charged in the said indictment."

To this paragraph the State demurred, on the ground that it did not state facts sufficient to constitute an answer. The demurrer was overruled, and the State excepted, and reserved the point of law for the decision of this court. A replication in denial was then filed, and the cause was submitted to the court for trial, who found the appellee not guilty on the defence, as stated in the second paragraph of the answer. The paragraph of the answer in question was predicated upon section 89,1 which provides, that any person called as a witness to testify against another for gaming is a competent witness to prove the offense, although he may have been concerned as a party, and is compelled to testify as other witnesses, but he shall not be liable to indictment or punishment in any such case.

In our opinion, the answer is bad. To exempt a person from prosecution or punishment on the ground that he has been compelled to testify as a witness, under section 89,2 it must appear that he was compelled to testify against another for gaming. This answer shows that the appellee was compelled to testify touching a wager on the result of an election, and not to prove the offense of gaming. Betting upon the result of an election is not gaming; an election is not a game.3

In our opinion, the decision of the court below overruling the demurrer to the second paragraph of the answer was erroneous.

As this court is not authorized to reverse a judgment of acquittal in a criminal prosecution, the judgment of the said Morgan Circuit Court is affirmed, at the costs of the appellee.

12 G. & H. 410.

i supra.

Judgment affirmed.

3 Woodcock v. McQueen, 11 Ind. 14; Mc. Hatton v. Bates, 4 Blackf. 63.

ELECTIONS-VOTER CONVICTED OF "INFAMOUS CRIME.”

UNITED STATES v. BARNABO.

[14 Blatchf. 74.]

In the United States Circuit Court, District of New York, 1876.

1. The Statutes of a State disfranchising persons convicted of infamous crime do not affect persons who have been convicted in the Federal Courts of statutory crimes.

2. Case in Judgment.-A statute of New York prohibited under a penalty the vote of a person convicted of an infamous crime. B. was indicted under the statute, it appearing that B. had been convicted in a Federal court of uttering a counterfeited security of the United States. Held, that B. was not punishable under the statute.

BENEDICT, J. The accused is charged with having fraudulently registered at a registry of voters for an election for representatives in Congress, he being at the time disqualified as a voter by reason of having been convicted of a felony. The conviction set forth is a conviction of uttering a counterfeited security of the United States, the offense being created by section 5431 of the Revised Statutes of the United States. A demurrer to the indictment presents the question whether the laws of the State of New York deprive of the right of suffrage a person who has been convicted, in a court of the United States, of an offense against the United States, of the character described in section 5431 of the United States Revised Statutes.

The question is new in this court, and I have not been referred to any case where the question has arisen in the courts of the State. In order to a proper understanding of the statutory provisions in the laws of the State of New York bearing upon the question, mention must be made of the following provisions in those laws. According to the provisions of section 25 of the act of April 17, 1822, no person was allowed to vote who had been "convicted of any infamous crime." In 1823 the second constitution of the State took effect, and gave authority to pass laws, "excluding from the right of suffrage persons who have been, or may be, convicted of infamous crimes." In 1828 the Revised Statutes of the State,1 excluded from the right of suffrage every person convicted within this State of an infamous crime," "unless he shall have been pardoned by the executive, and, by the terms of such pardon, restored to all the rights of a citizen." In order to prevent infractions of this law, further provision was then made 2 that, "if any person so convicted shall vote at any such election, unless he shall have been pardoned and restored to all the rights of a citizen, he shall be deemed

11 Rev. Stats. 127, sec. 3.

21 Rev. Stats. 135, sec. 21.

guilty of a misdemeanor," etc. An original note of the revisers to chapter 6, says: "The act of 1822, section 25, provides that no person who has been convicted of an infamous crime shall be permitted to vote, but it does not point out any mode in which a challenge for that cause shall be determined. Parol evidence of the fact of conviction ought not to be received; nor ought the oath of the person challenged to be demanded. The revisers have, therefore, in the above section, required the production of the record; though it is worthy of consideration whether such a regulation would not make the exclusion, to all practical purposes, a nullity. Perhaps a list of the convicts might be annually furnished to the town clerks, and be made evidence in cases of this sort." On the 5th of April, 1842, a substitute for chapter 6 of part 1 of the Revised Statutes was enacted, in which it was provided that "no person who shall have been convicted of an infamous crime deemed by the laws of this State a felony, at any time previous to an election, shall be permitted to vote thereat, unless he shall have been pardoned before or after his term of imprisonment has expired, and restored by pardon to all the rights of a citizen." This provision is still in force, and the question depends upon the effect to be given to this statute of the State.

It will be noticed that the language of the original act of 1822 is sufficiently broad to cover all convictions of any infamous crime, whereever had. The Revised Statutes added, in express terms, the limitation that the conviction must have occurred "within this State," and, by implication, the further limitation that it must be a conviction in the courts of the State. This implication appears to arise out of the exception as to persons "pardoned by the executive, and, by the terms of such pardon, restored to all the rights of a citizen." The executive of the State only can be referred to here, as no pardon issued by the President of the United States would, by its terms, restore a person to the rights of a citizen of the State of New York. It would appear, therefore, proper to construe the statute as referring to those crimes only that can be pardoned by the Governor of the State. Furthermore, such appears to have been the understanding of the statute by the revisers themselves, as their note above referred to shows. For, the remedy proposed by them in the note, while sufficient, if only convictions in the courts of the State are within the scope of the statute, is wholly insufficient if the statute includes convictions in the courts of the United States. The limitation which thus appears in the Revised Statutes is more plainly seen in the enactment of 1842, for while, in that act, the exception as to persons pardoned is substantially the same

1 Tit. 4, art. 2, sec. 10.

2 Title 1, sec. 3.

as before, the disqualifying clause requires not only that the conviction shall be of an infamous crime, but that it shall be of a crime "deemed by the laws of this State a felony." This statute requires not only that the crime be of the class of infamous crimes, but, also, that it be such a crime as, by the laws of the State, is declared to be a felony. The courts of the United States take cognizance only of statutory offenses against the United States, created by the law of the United States, and I doubt whether it can be said that any mere statutory offense, created by a law of the United States is "deemed by the laws of the State a felony." It has been contended that the word "deemed," as it is used shows an intention to include all crimes presenting the feature designated by the laws of the State as the characteristic of a felony, namely, a liability to be punished by death or by imprisonment in a State prison and hence it is concluded, that, inasmuch as the accused, upon his conviction under section 5431, became liable to imprisonment in a State prison, he is within the scope of the disqualifying statute. Here this difficulty arises, that, while the laws of the State are framed with the intent that the mode of punishment liable to be inflicted shall determine the character of the offense, as a felony or otherwise, the laws of the United States are not so framed. By the laws of the United States, upon conviction for any offense, where the sentence imposed is an imprisonment for a period of more than one year, the sentence may be directed to be executed in a State prison.2 And there are offenses against the United States made, by express terms, misdemeanors, although punishable by hard labor in a State prison. It would, therefore, result, that a conviction for any offense against the United States, where imprisonment for a period of more than one year can be inflicted, would have the effect to disqualify the person convicted.

The better solution of the question is to be found in other provisions of the statutes of the State, now to be mentioned. On the 14th of May, 1872, was passed an act entitled "An act in relation to elections in the city and county of New York and to provide for ascertaining, by proper proofs, the citizens who shall be entitled to the right of suffrage therein." In section 33 is found adopted the suggestion originally made by the revisers, in their note above referred to. By this section, obviously for the purpose of providing means of proving such convictions as work the disqualification of a voter, it is required that the clerks of the Courts of Oyer and Terminer and General and Special Sessions shall file with the chief of the bureau of elections a certified record of all convictions for offenses punishable

1 2 Rev. Stats. p. 702, sec. 30.

2 Rev. Stats. U. S., sec. 5541.