with what motive, treason is committed; whereas, it is the intention with which such resistance is made, not the opposition itself, that forms the criterion; otherwise, every willful opposition to a statute would necessarily be a levying of war. With respect to the prisoner's intention, it is made out most satisfactorily by every witness that has been examined on the part of the public. On this point there will be, happily for him, no doubt in your minds. There is no testimony of his ever having been before, or since, engaged in a resistance to these or any other laws. The court can not help thinking that the District Attorney must have been greatly deceived in the information which was given to him, of the prisoner's conduct, and that the proofs on trial have fallen very far short of his expectations, or that you would never have been put to the trouble of deciding on this case. But as, notwithstanding the discussion which has taken place, he seems seriously and sincerely to believe treason has been committed, the court has thought it a duty to state to you its opinions, most explicitly the other way; so that, if any mistake be committed by so great an extension of the crime of treason, neither of us may be chargeable with it, for, "we can not be too wary," in the language of the great and good Lord Hale, “in multiplying constructive treasons, for we know not where they will end."

The court will now finish its charge. If it has been tedious, you will impute it not to a desire of trespassing unnecessarily on your time, but of guarding you, in a case of very general concern, against those mistakes which the earnestness and eloquence of counsel sometimes produce; and although we might have been content with stating our opinion on the law, in more general terms, we were willing you should know that it was not merely a speculation of our own, but one which we believe to be sanctioned by the Constitution of our country; by decisions in England; by various judgments of our domestic tribunals; and, as far as can be collected from these acts, by the sense of our National Legislature. In addressing you, then, at some length, and with all possible plainness, the court have felt no other motive than a desire to assist you in coming to a correct result on a point which, to the honor of this State, has never before been a subject of public discussion within it.

The whole case, both law and fact, is now committed to you, in the fullest confidence that you will do justice to your country, the prisoner, and yourselves. Verdict of acquittal.

§ 65. "Enemies" in Constitution not Rebel Citizens. -The term "enemies," as used in the second clause of the Constitution of the United States, refers only to the subjects of a foreign power in a State of open hostility to the government of the United States and does not embrace rebels in insurrection against their own government.1

§ 67.

"Levying War"

--

A conspiracy to subvert

Mere Enlistment Not. A mere enlistment of men who are not assembled is not "levying war" within the Constitution.3

1 U. S. v. Greathouse, 2 Abb. (U. S.) 364

(1866).

2 Ex parte Bollman; Ex parte Swartwout, 4 Cranch, 75 (1807).

3 Ex parte Bollman; Ex parte Swartwout,

4 Cranch, 75 (1807).

$68.

Persuading to Enlist with Enemy-Crime not Complete Till Enlistment.-In Respublica v. Roberts,1 the prisoner being indicted for high treason, a witness was called to prove that the defendant had attempted to prevail upon him to enlist with the British army; but that he did not succeed. This gave rise to a question in these words of the act of the Assembly: "That if any person or persons knowingly and willingly shall aid or assist any enemies at open war with this State, etc., by persuading others to enlist for that purpose, etc., he shall be adjudged guilty of high treason." 2

In support of the prosecution it was urged, that the attempt to prevail constituted the crime; and that it was like the case of a man's sending intelligence to the enemy, which was an act equally criminal in the sender, whether the intelligence was received, or not.

For the defendant, it was argued, that persuading implies success; suado signifying to advise, and persuado to advise through, or successfully; and therefore, it can not be properly said of any person that he was persuaded, unless he has done some act in consequence of his persuasion.

BY THE COURT. There is proof of an overt act, that the prisoner did enlist, and evidence is now offered to show, that he also endeavored to persuade others to enlist, in the armies of the enemy. But we are of opinion, that the word persuading used by the Legislature, means to succeed; and that there must be an actual enlistment of the person persuaded, in order to bring the defendant within the intention of the clause.3

69. Treason- - Adhering to Rebels - Mistake.-In Respublica v. Malin, the prisoner mistaking a body of American troops for British ones went over to them, his intent being to join the enemy. Indicted for treason, it was proposed to prove that it was only his mistake which prevented him from joining the enemy. But the court held that an adherence to his own side, though contrary to his own intention, could not be called treason, and he was acquitted.

§ 70. Petit Treason. Petit treason does not exist as a distinct crime in the United States.5

$70a. Piracy-United States Laws Apply only to Citizens.-The ninth section of the act of April 30, 1790, declaring that "if any citizen shall commit any piracy or robbery aforesaid, or any act of hostility against the United States, or any citizen thereof, upon the high seas, under color of any commission from any foreign prince or state, or on pretense of authority from any person, such offender shall, notwithstanding the pretense of any such authority, be deemed, adjudged and taken to be a pirate, felon and robber," applies only to citizens of the United States, and not to foreigners. Piracy, as punished by act of April 30, 1790, must be committed by citizens of the United States, or upon board of vessels of the United States."

§ 706.

What is not Piracy.—The capture of a Spanish vessel,,made by an armed cruiser of the Province of Carthagena, while that province was at war

11 Dall. 39 (1778).

22 State Laws, pp. 18, 19

82 Lord Raymd. 889.

41 Dall. 33 (1778).

5 State v. Bilansky, 3"Minn. 247 (1859).

U. S. v. Baker, 5 Blatchf. 6.

TU. S. v. Howard, 3 Wash. 340. And cee

U. S. v. Palmer, ante, p. 122.

$ 72. Voting out of Ward- Not Voting out of City or Town.- In Nettles v. State,1 it was held that voting out of the ward of the voter's residence at a municipal election was not an offense within the Alabama statute. In reversing the judgment, PETERS, J., said: "This is an indictment for illegal voting, founded on section 404, of the Revised Code, which is in these words: 'If any person votes at any election who is not entitled, or if any one votes out of the county, or the city or town (if entitled to separate representation) of his residence, he is guilty of a misdemeanor, and on conviction thereof, must be fined not less than three hundred dollars.' The defendant was convicted in the court below, and he brings the case to this court for review, and for a correction of errors apparent on the record. The count of the indictment is in these words: 'The grand jury of said county charge, that before the finding of this indictment, at an election held in the city of Montgomery, State and county aforesaid, in pursuance of an act of the General Assembly of the State of Alabama, entitled, "An Act to amend the charter of the city of Montgomery, and the various laws heretofore passed amending the said charter," approved March 3d, A. D., 1870, for mayor, alderman and clerk of said city of Montgomery, on the first Monday of December, A. D. 1871, that at said election, and in ward number one of said city, Thomas Nettles, alias Albert Nettles, not being a legal voter of said ward, and not entitled by law to vote therein, did cast a vote in said ward, at said election for mayor, alderman and clerk of said city of Montgomery; against the peace,' etc. The defendant demurred to this indictment, but his demurrer was overruled; and this ruling of the court below, to which he excepted, is now one of the errors relied on in this court as a cause for reversal.

"The statute upon which this indictment is founded makes illegal voting at any election' a misdemeanor; that is, a public offense, punishable by fine and imprisonment, or by both. This illegal voting may be done by one not entitled to vote, voting at any election; or by one who is entitled to vote, voting out of the county, or city, or town of his residence. It seems obvious that this phraseology divides illegal voting into two classes. The first depends upon a personal disability, which renders the person voting not entitled to vote at an election at any place. The second depends upon the place of voting, and may be called a local disability. The indictment in this case charges the defendant with the offense of voting where he was not entitled to vote; with voting out of the ward of his residence, at a municipal election in the city of Montgomery. This may be an offense against the ordinances and by-laws of the city corporation, but it is no offense against the laws of this State. The only offenses recognized by the statute above cited are, voting out of the county, or out of the city, or out of the town of the voter's residence. And this prohibition seems to be confined to election for State or county officers, as no one would be likely to vote out of the city or town, for city or town officers; because these local elections are always held within the local jurisdiction, and would, if held any where else, be wholly illegal, and would not amount to elections in the sense of the statute at all. The indictment, then, shows no violation of the statute, and the demurrer should have been sustained, and the prosecution should have been dismissed in the court below."

1 49 Ala. 35 (1873).

2 Revised Code, secs. 404, 3541.

§ 73.

Illegal Vote-Meeting Irregularly Summoned. It is a defence to an indictment for illegally voting twice at a town meeting, that the meeting was not summoned in the mode required by statute.1

$ 74.

Interfering with Officer of Election.- In order to render a person guilty of this offense, the act of the officer must be within his powers and jurisdiction.2

$75. Elections Governor of State not an "Election Officer."- The Governor of a State is not an "officer of election" within the United States election law.3

876.

Betting on Elections not Indictable at Common Law. Betting

on elections is not indictable at common law.

$77.

·Election held in Another State. And under the statutes, betting on an election held in another State is not indictable.5

§ 77a. Betting at Election- Person must be Candidate for Office.— "It is not a penal offense under any statute, to bet that a certain individual will not be elected to a certain office at a certain election, unless he is candidate for that office, or is voted to fill it, or is intended or expected to be voted for, or is expected to be a candidate for it. It is not a statutory offense to bet that a man will not be a candidate for a particular office; and, unless he be a candidate or be voted for, or proposed, it may not be an offense to bet either that he will or that he will not be elected. There must be an election taking place, or about to take place, in which he is, or will be, a candidate or proposed in some way for the choice of the electors." 6

§78. Election which has Taken Place. -In State v. Mahon, it was held that betting on the result of an election after the election had taken place, was not within the Alabama statute. "This indictment," said the Supreme Court, "is supposed to be authorized by the act of 1830, which is in these terms. 'Any person or persons who shall make any bet, or wager of money, or any other valuable thing, upon any election or elections in this State, shall be guilty of a misdemeanor.' The practice of wagering with respect to an election, is one very well calculated to affect the purity of the elective franchise, and is one which the statute was intended to suppress; but there is a wide distinction between betting on the result of an election which has been consummated, and one which is in progress. In the former, however much the feelings of individuals may be or have been excited, their action can not be influenced either directly or indirectly by any wager which they may make; the election is determined, although it may not be known who is elected.

"In the latter, not only the feelings, but also most frequently, the actions of those who bet are strongly influenced by the wager. In our opinion, the statute applies only to those who bet on the result of an election which is not consummated."

1 State v. Williams, 25 Me. 561 (1846). 2 Com. v. Gibbs, 4 Dall. 253 (1802).

2 U. S. v. Clayton, 2 Dill. 219 (1871). 1 Com. v. Avery, 14 Bush, 639 (1879); State v. Henderson, 47 Ind. 127.

2 DEFENCES.

17

6 State v. McLelland, 4 Sneed, 437 (1857). • Com. v. Shouse, 16 B. Mon. 327 (1855). 72 Ala. 340 (1841). And see State v. McLelland, 4 Sneed, 437 (1857).

§ 72. Voting out of Ward - Not Voting out of City or Town.- In Nettles v. State,1 it was held that voting out of the ward of the voter's residence at a municipal election was not an offense within the Alabama statute. In reversing the judgment, PETERS, J., said: "This is an indictment for illegal voting, founded on section 404, of the Revised Code, which is in these words: 'If any person votes at any election who is not entitled, or if any one votes out of the county, or the city or town (if entitled to separate representation) of his residence, he is guilty of a misdemeanor, and on conviction thereof, must be fined not less than three hundred dollars.' The defendant was convicted in the court below, and he brings the case to this court for review, and for a correction of errors apparent on the record. The count of the indictment is in these words: The grand jury of said county charge, that before the finding of this indictment, at an election held in the city of Montgomery, State and county aforesaid, in pursuance of an act of the General Assembly of the State of Alabama, entitled, "An Act to amend the charter of the city of Montgomery, and the various laws heretofore passed amending the said charter," approved March 3d, A. D., 1870, for mayor, alderman and clerk of said city of Montgomery, on the first Monday of December, A. D. 1871, that at said election, and in ward ⚫number one of said city, Thomas Nettles, alias Albert Nettles, not being a legal voter of said ward, and not entitled by law to vote therein, did cast a vote in said ward, at said election for mayor, alderman and clerk of said city of Montgomery; against the peace,' etc. The defendant demurred to this indictment, but his demurrer was overruled; and this ruling of the court below, to which he excepted, is now one of the errors relied on in this court as a cause for reversal.

"The statute upon which this indictment is founded makes illegal voting'at any election' a misdemeanor; that is, a public offense, punishable by fine and imprisonment, or by both.2 This illegal voting may be done by one not entitled to vote, voting at any election; or by one who is entitled to vote, voting out of the county, or city, or town of his residence. It seems obvious that this phraseology divides illegal voting into two classes. The first depends upon a personal disability, which renders the person voting not entitled to vote at an election at any place. The second depends upon the place of voting, and may be called a local disability. The indictment in this case charges the defendant with the offense of voting where he was not entitled to vote; with voting out of the ward of his residence, at a municipal election in the city of Montgomery. This may be an offense against the ordinances and by-laws of the city corporation, but it is no offense against the laws of this State. The only offenses recognized by the statute above cited are, voting out of the county, or out of the city, or out of the town of the voter's residence. And this prohibition seems to be confined to election for State or county officers, as no one would be likely to vote out of the city or town, for city or town officers; because these local elections are always held within the local jurisdiction, and would, if held any where else, be wholly illegal, and would not amount to elections in the sense of the statute at all. The indictment, then, shows no violation of the statute, and the demurrer should have been sustained, and the prosecution should have been dismissed in the court below."

1 49 Ala. 35 (1873).

2 Revised Code, secs. 404, 3541.