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State v. Nulf, 15 Kan. 404, was made with light of the history of the legislation of this out attention having been called to this pow- state concerning bribery, the omission from er of the attorney general. The court was the statute may well be regarded as conclunot then considering, and did not pretend sive. The subject is an old one. When the to decide, the question now under discussion. aged Samuel was testifying his integrity, he Certainly it was not the intention of the said: “Whose ox have I taken? or whose ass court to nullify, by that decision, the stat- have I taken? or whom have I defrauded ? ute which gives the attorney general the whom have I oppressed? or of whose hand right to prosecute whenever required by the have I received any bribe to blind mine eyes governor or either branch of the legislature therewith? and I will restore it you.” Isaiah to do so.

accorded the privileges of the godly to him Time has abated nothing from the strength “that shaketh his hands from holding of of purpose indicated by the words of the bribes," and David sang of a separation of statute under consideration. Indeed, the life and soul from those whose "right hand power of the attorney general in our polit- is full of bribes.” The governments of all ical system has subsequently been enlarged, the civilized peoples which have arisen since and he may now, upon his own motion, un- those ancient days have struggled with the dertake the enforcement of the prohibitory problem. Previous to the year 1869 receivliquor law in any county of the state, if the ing a bribe was a crime in this state. By county attorney is unable or neglects to do chapter 43, p. 128, of the Laws of that year so, and to that end may perform any act the legislature repealed all sections of the which the county attorney may perform. bribery statute then in force, so far as they What, if any, common-law powers he may related to bribe takers. For a period of possess, it is not necessary, in view of the twenty six years following this repeal, offistatute, to determine.

cers who received rewards for official conThe indictment was signed by an attorney duct were not amenable to criminal punwho was by law authorized to sign indict. ishment at all for their corrupt acts. In ments in Wyandotte county, and it should 1895 the matter again became the subject not have been quashed upon any one of the of legislative cognizance, and the present first three grounds stated in the motion to law was enacted, providing as follows: quash.

“Any officer of the state or of any county, In the brief for the defendant it is urged city, district, or township, after his election that the indictment was insufficient because or appointment, and either before or after the authority of the attorney general to sign he shall have qualified, or entered upit was not stated. The motion to quash does on his official duties, who shall accept or not raise this question, but the attorney gen- receive any money, or the loan of any eral argues it as if it were a matter in dis- money, or any real or personal property or pute before the district court. Therefore, it any pecuniary or other personal advantage, is proper to say that the signature was suffi- present or prospective, under any agreement cient. The district court was obliged to take or understanding that his vote, opinion, judicial notice of the official character and judgment, or action shall be thereby inidentity of the attorney general, and of fluenced, or as a reward for having given or the executive requirement upon him to ap- withheld any vote, opinion, or judgment, in pear and prosecute. The action of the gov- | any matter before him in his official capaciernor was a matter of court cognizance, and ty, or having wrongfully done or omitted not a matter for the indictment to express. to do any official act, shall be punished by a The attorney general was no more required fine of not less than $200 nor more than to indicate that he was acting under an ex- $1,000, or by imprisonment for not less than ecutive order than the county attorney is re- one year nor more than seven years in the quired to refer to the fact of his election, the penitentiary at hard labor, or by both such taking of his oath, and the filing of his bond. fine and imprisonment, at the discretion of Having authority to sign the indictment, the court.” Gen. Stat. 1901, § 2212. The statthe attorney general did all the statute re utes of many states by express provision quires when he signed it. State v. Nulf, 15 punish the solicitation of bribes. The statKan. 404; State v. Tannahill, 4 Kan. 117; ute of this state in force in 1895 relating State v. Kinney, 81 Mo. 101; Choen v. State, to the giving of bribes devoted a separate 85 Ind. 209; 10 Enc. Pl. & Pr. p. 448. section to offering or attempting to bribe.

The act charged against the defendant in The appearance in the new law of an analothe body of the indictment is the solicita- gous section relating to soliciting or attion of a bribe. The legislature has not seen tempting to secure a bribe might well have fit to make the solicitation of a bribe pun- been anticipated, but nothing of the kind ishable in express terms, and the question was inserted. Presumably the legislature is if the same end may be reached through expressed itself fully, and did not intend to the statute relating to attempts. In the punish a solicitor unless he actually received the bribe. The spectacle of a public officer much of the uncertainty relating to the law soliciting his own purchase is so disgusting of attempt in this country. In his work on that the subject scarcely could have escaped Criminal Law, Mr. Bishop has evidently the legislative attention. But many prac. seized upon the words most favorable to his tical considerations are involved in the de- purpose in this and other similar cases, in tection and punishment of bribery. Ordina. an effort, supported, however, by some aurily, disclosure must come from one or the thority, to establish the doctrine that solici. other of the participants in the despicable tation is an attempt. The case of Heselton business. Solicitation, however, is extreme. v. Lister, Cooke C. P. 88, is cited. The entire ly rare compared with offers to corrupt, and report of that case is here given, because the same policy which so long exempted the it is apparently referred to as deciding bribe taker altogether may have been deemed that solicitation is an attempt in a bribwisest in regard to solicitation. In any event. ery case. “A motion to justify bail upon this court should not be called upon to out- examination of the bail in court. The plainstrip the legislature and by construction tiff's attorney showed to the court that the invent a crime which, with many precedents same persons were bail in another cause, before them the law-makers might have and represented that he verily believed they delineated in a few words while engaged in were very insufficient, for the defendant the work of remodeling the bribery law. himself had told him they were not worth

Aside from these considerations, the court a groat. He likewise informed the court is of the opinion that the solicitation of a that one Dewell, a sheriff's officer, had just bribe is not an attempt to accept or receive then been with him, and told him if he a bribe within the meaning of the statute would go out of court the defendant would relating to attempts. That statute reads: give him half a guinea. Dewell was like. "Every person who shall attempt to com- wise examined upon oath, and declared the mit an offense prohibited by law, and in same. Upon this the court all agreed that such attempt shall do any act toward the this was an attempt in the defendant to commission of such offense but shall fail pervert justice, and a notorious contempt of in the perpetration thereof, or shall be pre- the court, and committed him to the Fleet vented or intercepted in executing the same, till farther order.” A number of American upon conviction thereof, shall, in cases where cases used as authority for the proposition no provision is made by law for the punish- of the same text throw no more light on ment of such attempt, be punished as fol. the subject than King v. Higgins. The relows." Gen. Stat. 1901, § 2284.

porter of the case of United States v. WorIn determining whether certain conduct rall, 2 Dall. 384, 1 L. ed. 426, Fed. Cas. No. was punishable criminally at common law, 16,766, says the defendant in that proceeding English judges have frequently made the was charged with an attempt to bribe. The statement that soliciting is an act done indictment uses no such language, and the which in itself is sufficient, when coupled only legal question argued and determined with wrongful intent, to constitute a crime. was if the courts of the United States had In discussing the subject, the word "solicit” jurisdiction of common law offenses, and has been used in the same connection with that question was decided wrong. In the words like “incite," "endeavor,” and “at- case of State v. Avery, 7 Conn. 267, 18 Am. tempt,” but the purpose in view has been Dec. 105, the sole question was if the solici. to show that solicitation in itself embodied tation of another to commit adultery was the elements of an independent crime, and a high crime and misdemeanor cognizable not to discriminate it as an ineffectual at- by the superior court, and not if an attempt tempt to commit another crime in the sense could be made out from mere solicitation. In of our statute. This is plain from a critical the case of Com. v. Harrington, 3 Pick. reading of the leading case of King v. Hig. 26, the headnote is accurate, and reads: gins, 2 East, 5. The headnote accurately "Exciting, encouraging, and aiding a perexpresses the conclusion of the judges, as fol. son to commit a misdemeanor is of itself lows: “To solicit a servant to steal his mas- a misdemeanor.” The same is true of ter's goods is a misdemeanor, though it be the case of Com. v. Flagg, 135 Mass. 545, not charged in the indictment that the serv- where it is said: “It is an indictable offense ant stole the goods, nor that any other act at common law for one to counsel and soliwas done except the soliciting and inciting. cit another to commit a felony, although And such offense is indictable at the ses- the solicitation is of no effect, and the crime sions, having a tendency to a breach of the counseled is not in fact committed.” The peace.” Lord Kenyon, Ch. J., and Le Blanc, citation of the case of Com. v. M' Gill, AdJ., were able to express themselves without dison (Pa.) 21, to prove that solicitation confusing attempt and solicitation. Justices is equivalent to attempt, is stonishing. Grose and Lawrence were more discursive, | The report is of an occurrence in the county and by their language opened the way to court of Allegheny county, and reads thus:

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"Indictment for å misdemeanor. Boggs per- | as follows: "Whoever attempts to commit suaded M'Gill to steal, and deliver to him, an offense prohibited by law, and does any a conveyance, for 100 acres of land, execut- act toward it, but fails, or is intercepted ed by Henry Shaver to his son and daughter. or prevented in its execution, where no exThis land was part of a larger tract of press provision is made by law for the punwhich Shaver had been possessed under a ishment of such attempt, shall be punished.” location of a Virginia certificate. He in- In construing this statute, the supreme court tended this 100 acres as a provision for his of that state said: “The words 'whosoever two children, and, having sold the rest to attempts to commit any offense prohibited Boggs, he conveyed the location or certifi- by law, and does any act towards it,' must cate to him that he might take a patent for be construed, in cases like the present, to the whole in his name, and took an article mean a physical act, as contradistinguished or bond on Boggs to convey this 100 acres from a verbal declaration; that is, it must to his children after he obtained the patent be a step taken towards the actual commisfor the whole. They were convicted. The sion of the offense, and not a mere effort, court suggested that it might be useful if by persuasion, to produce the condition of Boggs, having the title to this land, should mind essential to the commission of the ofbefore sentence execute a conveyance to the fense.” Cox v. People, 82 III. 191, 193. In the son and daughter of Shaver. He did so, and case of State v. Harney, 101 Mo. 470, 14 S. judgment was given.” The case of People v. W. 657, the opinion reads: "For a man to Bush, 4 Hill, 133, is the strongest authority have sexual intercourse with a female child cited in support of the text referred to. Con- under the age of twelve years is for that cerning that case, however, it might be ar- man to be guilty of rape. Rev. Stat. 1879, gued that the conduct proceedel beyond solic- $ 1253. And the law declares that every peritation. The prisoner, besides soliciting to son who shall attempt to commit an offense arson, furnished materials to accomplish the prohibited by law, and in such attempt shall burning, and was held guilty of an attempt do any act towards the commission of such under a statute similar to that of this state. offense, but shall fail in the perpetration The doctrine of People v. Bush is repudiat- thereof, shall be punished,' etc. Rev. Stat. ed by the supreme court of West Virginia 1879, § 1645. The only charge that can be in an able and exhaustive opinion in the evolved from the verbose reiterations of this case of State v. Baller, 26 W. Va. 90, 53 Am. indictment is that the defendant by verbal Rep. 66, and contrary to State v. Avery, the solicitations tried to obtain the consent of supreme court of Washington, in a recent a child under the age of twelve years to carefully reasoned case, holds that “mere have sexual intercourse with him, and failed. solicitation to commit adultery is not an at. However despicable and deserving of puntempt to commit the crime.” State v. But-ishment such conduct may be, it falls short ler, 8 Wash. 194, 25 L. R. A. 434, 40 Am. of the criminal offense attempted to be St. Rep. 900, 35 Pac. 1093. Appended to charged, to constitute which there must be the reprint of this decision in 25 L. R. A. an actual attempt to have intercourse with 434, is an editorial note relating to the such child. So long as the evil purpose dwells criminality of solicitation to crime which in contemplation only, it is beyond the grasp is not consummated, in which many cases of these provisions of the law.” And in the are analyzed and classified. Upon the branch case of Hicks v. Com. 86 Va. 223, 19 Am. St. of the subject now under consideration the Rep. 891, 9 S. E. 1024, it is said: "The act following conclusion is reached: “The au- must reach far enough towards the accomthorities are not so uniform upon the ques-plishment of the desired result to amount tion how far solicitation is an attempt. But to the commencement of the consummation. the weight of authority is in accord with It must not be merely preparatory. In other State v. Butler, that it is not an attempt. words, while it need not be the last proxThe

very definition of attempt precludes the imate act to the consummation of the ofpossibility of its including a mere solicita- fense attempted to be perpetrated, it must tion.” Likewise, in 12 Cyc. Law & Proc. p. approach sufficiently near to it to stand ei183, where numerous authorities are collat. ther as the first, or some subsequent, step ed, it is said: "Some of the courts have in a direct movement towards the commistreated solicitation to commit a crime as sion of the offense after the preparations are an attempt. By the weight of authority, made.” This court has virtually adopted the however, it is not a sufficient overt act to be restricted meaning of the word “attempt" indictable as an attempt, but must be in indicated by these decisions. dicted as a distinct offense.” In the state of In the case of Re Lloyd, 51 Kan. 501, 502, Illinois a statute (Hurd's Rev. Stat. 1903, 33 Pac. 307, the position is taken that an chap. 38, § 273, p. 670,) was enacted reading | attempt must involve an overt act beyond

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solicitation, and in the case of Re Schurman, not an offense punishable as a crime under 40 Kan. 533, 542, 20 Pac. 277, 282, it is the law.” There are no common-law ofsaid: "If what was charged would naturally fenses in this state, and there can be no conhave resulted in inducing the company to victions in this state except for such crimes part with its money, such attempt would as are defined by statute. State v. Young, 55 probably be an offense; ‘but when between Kan. 349, 40 Pac. 659. the attempt and the execution is interposed In harmony with what is undoubtedly the volition of an independent moral agent, the modern trend of the law, this court is then, by stress of the definition just given, constrained to hold that, so long as the will an indictable attempt is not made out.' 1 of the person solicited is opposed to the corWharton, Crim. Law, $8 177, 178.” In a rupt conduct, there can be no attempt, in very recent case the supreme court of Mich- the legal sense, to accept or receive a bribe. igan admitted the principle announced by After a willingness of mind on the part Dr.Wharton to be applicable to the crime of of both participants has been established, bribery, and held the solicitation of a bribe the matter of giving and receiving the bribe to be punishable, not as an attempt, but as money or other pecuniary or personal adan independent common-law crime. "It

vantage must still be accomplished. That is strenuously contended that the indictment transaction may be very simple or very comcharges no offense known to the laws of this plex, and the rooin for attempt may be very state. It is conceded by the learned counsel wide or very narrow, but until it is finally for the state that there is no statute defin- undertaken and some act done, the stage of ing the offense set out in the indictment, attempt has not been entered upon. The rebut it is contended that the case falls with marks of the supreme court of Maryland in the statute (3 Comp. Laws, $ 11,795) in an opinion denying that solicitation conproviding for the punishment of offenses institutes an attempt are pertinent to this dictable at the common law. In other words, case: “Certainly it would be a great pubit is claimed that the indictment sets out lic calamity to invent crimes by subtle, inan offense at the common law. Respondent's genious, and astute deduction. In all free counsel assert that solicitation to commit countries the criminal law ought to be plain, a crime is not indictable when there is inter- perspicuous, and easily apprehended by the posed between the solicitation on the one common intelligence of the community. It is hand and the proposed illegal act on the the essence of cruelty and injustice to punother the resisting will of another person, ish men for acts which can be construed which other person refuses assent and co

to be crimes only by the application of artioperation; citing, among other cases, Alc- ficial principles according to a mode of Dade v. People, 29 Mich. 50, and Smith v. disquisition unknown in the ordinary busiCom. 54 Pa, 209, 93 Am. Dec. 686. It may be ness and pursuits of life. The legislature, accurate to say that what is treated in the with ample power over the whole subject, law as an attempt to commit a crime is not determined what offenses should be punishcomplete where there is interposed between ed. If it had desired that other actions of the solicitor and the consummation of the

a cognate character should become penal, coinpleted offense the resisting will of the it would have so enacted. It is the duty of one whom the solicitor seeks to employ as the the courts to interpret and administer the active agent. But to say that a solicitation legislative will, but in cases of criminal may not amount to an offense under these cognizance they must resolutely determine circumstances is to deny that a solicitation never to exceed it.

The law would to commit a felony is punishable at the com- not be a practical system if it did not demon law as a substantive and completed fine with precision the nature and circumoffense.People v. Hammond, 132 Mich. 422, stances of the attempts which are criminal, 93 N. W. 1084. The inference from this de- and determine what acts are necessary to cision is that soliciting a bribe would not make the attempt a substantive offense. In be punishable in Michigan, except for the our judgment it has done so, and not left statute recognizing common-law offenses. us to grope after results under the guidance That it is not punishable in Texas appears of vague general expressions.” Lainb from the case of Hutchinson v. State, 36 State, 67 Md. 524, 10 Atl. 208, 298. Tex. 293, in which it is said: "The indict The indictment was properly quashed upment was drawn under article 1870, Pas on the last ground stated in the motion, and chal's Digest, and the pleader attempted to the judgment of the District Court is afcharge the defendant with accepting a bribe; |firmed. but the indictment wholly fails to make any such charge specifically, and only charges All the Justices concur. him with offering to receive a bribe. This is

V.

MICHIGAN SUPREME COURT.

V.

CER

PEOPLE of the State of Michigan ex rel. The voting machine is the next step, and City of DETROIT

is the outgrowth of the Australian ballot,

and cures its defects, and a vote cast thereby BOARD OF INSPECTORS OF ELECTION is voting by ballot in the meaning of the for the Fourth District, Second Ward,

Constitution. City of Detroit.

The keyboard of the machine, with the

ballot labels thereon, constitutes a mechan(...... Mich......)

ical Australian ballot, and affords the voter

an opportunity to vote secretly and accuA statute permitting the use of a vot- rately by ballot, prevents mistakes, and in

ing machine which assures secrecy, free choice of candidates, a correct record of the

sures the counting of his vote as cast. vote, and a correct record and announcement

The test of the validity of the method emof the total vote given for each candidate, | ployed is secret voting. does not contravene a constitutional require Hensharo v. Foster, 9 Pick. 319; Temple ment that all votes at elections shall be given

v. Mead, 4 Vt. 540; Opinion of Justices, 7 by ballot.

Me. 495, Appx. (March 30, 1905.)

Voting by machine is constitutional vot

ing. ERTIORARI to the Circuit Court for 54 L. R. A. 430, 60 N. E. 129; Re Voting

Re House Bill No. 1,291, 178 Mass. 605, Wayne County to review a judgment Machine, 19 R. 1. 729, 36 L. R. A. 547, 36 denying a writ of mandamus to compel respondent to utilize voting machines at a

Atl. 716; Cooley, Const. Lim. 6th ed. p. 760.

Mr. Frank Keiper also for relator. coming election. Reversed.

Mr. Sherman D. Callender, for reThe facts are stated in the opinion. Mr. Lewis A. Stoneman, with Mr.

spondent:

The Constitution must be construed in the Timothy E. Tarsney, for relator:

The word "ballot,” as used in the Consti- light of the surrounding facts, to understand tution and in literature, means secret vot. its provisions and their intended applicaing, in contradistinction to viva voce, or

tion. open, voting.

The voting machine does not permit a 23 Am. Law Rev. p. 725; Opinion of Jus. vote by ballot. tices, 7 Me. 495, Appx.; Temple v. Mead, 4

Where the Constitution provides a means Vt. 540; Williams v. Stein, 38 Ind. 90, 10 for the exercise of a power, no other can be Am. Rep. 97; Ritchie v. Richards, 14 Utah, employed by the legislature. 345, 47 Pac. 670; Brisbin v. Cleary, 26 Boehm v. Hertz, 182 Ill. 154, 48 L. R. A. Minn. 107, 1 N. W. 825; Otero v. Gallegos, 575, 54 N. E. 973; People v. Dean, 14 Mich. 1 Bartlett Contested Elect. Cas. 177; People 406; Beardstown v. Virginia, 76 Ill. 34; ex rel. Williams v. Cicott, 16 Mich. 297, 97 People ex rel. Bay City v. State Treasurer, Am. Dec. 141; People ex rel. Smith v. Pease, 23 Mich. 499; People ex rel. Kennedy v. 27 N. Y. 81, 84 Am. Dec. 242; Atty. Gen. v. Gies, 25 Mich. 83. Detroit, 58 Mich. 213, 55 Am. Rep. 675, 24 It is proper to take into consideration N. W. 887; State v. Shaw, 9 S. C. N. S. 138; the uniform, continued, and contemporaneState ex rel. Smith v. Anderson, 26 Fla. 240, ous construction of the Constitution given 8 So. 1; Ex parte Arnold, 128 Mo. 260, 33 L. by the legislature, and generally recognized, R. A. 386, 49 Am. St. Rep. 557, 30 S. W. 768,

as to its meaning or intention, and such 1036; 4 Encyclopedia Britannica, 8th ed.

contemporaneous construction affords 399.

strong presumption that it rightly interThe Australian ballot created two diffi

prets the meaning and intention. culties: First, it invited mistakes in marking the ballot, and, second, caused needless delay 45 11. 397; People ex rel. Woodyatt v.

Cooley, Const. Lim. 82; Bunn v. People, and controversy in the count, resulting in the throwing out of many of the votes, and Thompson, 155 II. 451, 40 N. E. 307; Peorequiring, in some precincts, as much as

ple ex rel. Lynch v. La Salle County, 100 forty hours to count the votes.

Ill. 495; Boehm v. Hertz, 182 Ill. 154, 48 Coulehan v. White, 95 Md. 703, 53 Atl. L. R. A. 575, 54 N. E. 973; People ex rel. 786; M'Crary, Elections, 8 728.

Badger v. Lowenthal, 93 III. 191.

It is a matter of common knowledge that, NOTE.—-For other cases in this series as to up to a very short time ago, voting by ballot right to use voting machine under constitu

has been construed to mean voting by depustional provisions providing for voting by ballot, see Opinion of Justices, 36 L. R. A. 547, and re iting with the election officers some material House Bill No. 1,291, 54 L, R. A. 430.

thing, usually, in modern times, a paper

a

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