Opinion · Supreme Court of North Carolina

Duke v. . Asbee

33 N.C. 112

Type: Opinion
Court: Supreme Court of North Carolina
Jurisdiction: North Carolina
Date: 1850-06-05
Topic: bankruptcy

Nash, J. In 1801, the Legislature passed an act to punish the crime of bribery at elections. Rev. Stat. ch. 52. sec. 23. The preceding section of the act makes it highly penal for any person, who is a candidate for a seat in the legislature, to give, either directly or indirectly, any money, gift, gratuity, or reward, &c. in order to be elected, and embraces all persons who shall do either of the acts “ to procure any other person to be elected.”— The penalty is a forfeiture of four hundred dollars.

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DUKEv. ASBEE,33 N.C. 112(1850)

ANDREW DUKE v. SOLOMON ASBEE.

Supreme Court of North Carolina

June Term, 1850.

A person who, on the day of or previous to an election, furnished liquor, either at the request of a candidate or any other person, with a belief that such furnishing of liquor is for the purpose of influencing the electors, cannot recover his account against the person ordering the supplies, because the contract is against good morals and the purity of elections, and because such conduct is prohibited by our statute-law.

APPEAL from the Superior Court of Law of CURRITUCK, at Spring Term, 1850,Ellis, J., presiding.

(113) This was an action ofassumpsitupon an account.

The plaintiff was introduced as a witness under the book-debt law, and testified that in the summer of 1849 the defendant was a candidate for the office of Superior Court clerk for the county of Currituck, and that the plaintiff retailed spirituous liquors in the said county; that the defendant, during the canvass between himself and the present incumbent, requested of the plaintiff repeatedly to let him have and to furnish his friends, upon public occasions, what liquor and other articles in the said account enumerated, by the small measure or otherwise, they might desire; that, upon the call of Mr. Asbee, previous to the election day, for liquor and other articles for himself and friends in the election, he set out accordingly as he or they may have requested. At other times, when the defendant was not present, according to a previous understanding with the defendant, and upon the call of his friends in the election, he furnished them with liquor, and all of which was drunk on public grounds at public gathering places; and the plaintiff had engagements of the like kind with other candidates during the said election year, and under the said engagementsPage 91furnished them and their friends with liquor in the like way; that the plaintiff furnished to all persons indiscriminately, who called upon him in the names of the candidates, liquor, etc., under the arrangement aforesaid, both before the election and on the day thereof.

The plaintiff further swore that he did not deal out the liquor, etc., as above stated, with any design of influencing the election, and did not vote for the defendant. The plaintiff here closed his case; and the defendant insisted that the plaintiff was not entitled to recover, because the contract was against good morals and therefore void, upon the ground that treating at elections was prohibited by statute and a penalty annexed.

The defendant then insisted that treating at elections was prohibited by law, a penalty being attached thereto, (114) and requested his Honor to charge the jury, if the defendant's object was to influence votes at the election, and the plaintiff knew it, then the plaintiff could not recover.

The presiding judge instructed the jury that if they believed the testimony, the plaintiff was entitled to recover.

The jury returned a verdict for the plaintiff, upon which judgment was given. Rule for a new trial granted and discharged. Appeal to the Supreme Court prayed and granted.

H. Burgwynfor plaintiff.Jordanfor defendant.

NASH, J.

In 1801 the Legislature passed an act to punish the crime of bribery at elections. Rev. St., ch. 52, sec. 23. The preceding section of the act makes it highly penal for any person who is a candidate for a seat in the Legislature to give, either directly or indirectly, any money, gift, gratuity or reward, etc., in order to be elected, and embraces all persons who shall do either of the acts "to procure any other person to be elected." The penalty is a forfeiture of $400. Section 23 forbidstreatingwith either meat or liquor, onany day of election or on any dayprevious thereto, with intent to influence the election, under the penalty of $200. Section 22 of the act of 1836 is taken from sec. 11, ch. 16 of an act passed in 1777, and section 23 was originally passed in 1801. The policy of these two acts is the same with that of the British statute passed 7 William III., ch. 4. It is remarkable that the acts of the General Assembly passed in 1760, and the act of 1777, both omit a provision contained in the statute of William, and a most important (115) one for the suppression of the offenses at which they were aimed. The statute of William III., among other acts of bribery,Page 92enumerated the giving of "meat, drink, and entertainments, etc." These are omitted in our acts of 1760 and 1777; but the material words embracing them all are brought forward in the act of 1801. I mention these circumstances to show the anxiety which the Legislature has at different times exhibited to keep pure the elective principle of our government.

The acts of Assembly bear so striking a likeness to the English statute that, although the latter never was in force here, the decisions of the English courts under it are very safe guides to us. The case ofRebbans v. Crickett, 1 Bos. and Pul., 264, was very similar to the one now under consideration. The second count was for provisions furnished the voters at the request of the defendant, and it decided the plaintiff could not recover, because the contract wasmalum prohibitum, of a very serious nature in the opinion of the Legislature, who had drawn a very strict line, which was not to be departed from. This doctrine was affirmed inLophouse v. Wharton, 1 Campb., 550, note; nor is it necessary that the person treating should be the agent of the candidate, or act with his knowledge; in either case he (the person treating) is within the provisions of the statute.Wardv. Nanny, 3 Car. and P., 399; 14 E. C. L., 369. If a mercer sells ribans, knowing that they are to be distributed among voters, he cannot recover the price.Richardson v. Webster, 3 Car. and P., 128; 14 E. C. L., 238; and so, if a candidate pay the expenses of buying out the freedom of voters or pay their traveling expenses, they incur the penalty of the statute. 1 Sel. N. P., 12;Bayntun v. Cattle, 1 M. and Rob., 265. Such have been the decisions of the Court under the English statutes, and they are safe guides to us in putting a construction upon our act, if we need any. The language of the act of 1801, Rev. St., ch. 52, sec. 23, is plain and perspicuous: "If any person (116) shall treat with either meat or drink on the day of election or on any day previous thereto, with intent to influence the election," etc. It is, then, illegal to treat at any election for the purpose set forth in the act, and if so, a contract founded on such act is illegal and void, and cannot be enforced in a court of justice. Whether, therefore, the person who gives the bribe be a candidate or not, or whether he be the agent of one, or whether or not he acts with the knowledge or consent of a candidate, he incurs the penalty of the act, if his object be to influence the election; and any contract made by him, withanyperson, for payment of such treating is null and void. No one, on reading this case, can for a moment doubt the intention with which the treating was done; the testimony comes from the plaintiff. The defendant was a candidate for the clerkshipPage 93of the Superior Court of Currituck County, and during the canvass requested the plaintiff to let him have"and to furnish hisfriendson public occasions what liquor and other articles they might want." Can any one hesitate for a moment as to the object of the defendant; and can any doubt exist as to the knowledge of the plaintiff of his object and intention? It is true, the plaintiff sworehehad no intention, in furnishing the articles contained in his account, to influence the election, as he voted against the defendant, and as he furnished the opposing candidate and his friends in a similar way. If this were a suit against the plaintiff to recover the penalty inflicted by the act, it would become important to inquire into his object and intention in furnishing the liquor and provisions, and whether he could escape this responsibility by showing that, instead of pandering to the passions of the friends of one of the candidates, he had furnished his efforts to corrupt those who were opposed to him. For the present, our inquiry is not whetherheintended to influence the election, but whether the defendant did not, and whetherhedid not know such to be the fact. (117) The jury were instructed, if they believed the evidence, the plaintiff was entitled to a verdict. In this there was error. They ought to have been instructed that if, from the testimony, they believed it was the intention of the defendant to influence the election by the meat and drink furnished by the plaintiff, and that intention was known to the plaintiff, the latter could not recover.

If in England the purity of the ballot-box is considered so important, how much more sedulously ought it to be guarded here. Upon the virtue and intelligence of the people our institutions rest; nor can they be endangered until these principles are lost sight of. The Legislature has done its part, and if its enactments are enforced by those to whom the duty belongs, much may yet be done to give them stability and vigor. And among the most corrupting practices of candidates for office is the one we are considering in this case; it is bribery of the most vicious and destructive tendency, and deserves to find no favor, either in courts of justice or from the people themselves. Whenever the offense is known to exist, the law ought to be rigidly enforced.

For the error in the charge pointed out, the judgment ought to be reversed and avenire de novoawarded.

PER CURIAM. Judgment reversed, and avenire de novoawarded.Cited: Burbage v. Windley,108 N.C. 363.Page 94

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