Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. HERBERT R. FRIEDLUND, Judge, presiding.
Reversed and remanded.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Rehearing denied November 26, 1965.
Defendant appeals from a judgment on a jury verdict, finding defendant guilty "of illegally offering to vote in manner and form as charged in the indictment." Defendant was sentenced to the penitentiary for a term of one to three years.
Defendant was tried on a two-count indictment. Count 1 charged that on April 2, 1963, defendant "committed the offense of illegal voting in that he knowingly offered to vote at the municipal election held in the City of Chicago, Cook County, Illinois, and in precinct 64 of Ward 36 of the City of Chicago when the said Sam DeStefano had been convicted of the offense of rape in indictment No. 45013 in the Criminal Court of Cook County, in the State of Illinois on December 23, 1927, and when the said Sam DeStefano thereafter had never received a certificate restoring his rights of citizenship from the governor or court entitled to grant such certificate, in violation of chapter 46, section 29-26 Ill Rev Stats 1961." Count 2 charged that on the same day the defendant "committed the offense of illegal voting in that he knowingly voted. . . ."
Section 29-26 of chapter 46 Elections (Ill Rev Stats 1961) provides:
"If any person who shall have been convicted of bribery, felony or other infamous crime under the laws of any state, and who has never received a certificate restoring his rights of citizenship from the Governor or court entitled to grant such certificate, shall thereafter vote or offer to vote at any election or primary, he shall upon conviction thereof be adjudged guilty of a felony, and, for each and every offense shall be punished by imprisonment in the penitentiary for not less than two nor more than five years."
Although defendant had counsel of his own choosing, he acted pro se during the entire trial.
At the conclusion of an 11-day trial from November 16, 1964, to November 27, 1964, the case was given to the jury for its consideration and verdict. After deliberating for some time, the foreman of the jury informed the court, in open court and with the jury in the jury box, that the jury was unable to reach a verdict. Thereupon the court ordered that a juror be withdrawn from the jury box, and the court declared a mistrial and excused the jury. Shortly thereafter, the court reconvened the jury, reopened the case, and received a verdict of guilty on Count 1. Judgment was entered on the verdict, and defendant was sentenced to the penitentiary. It is from this conviction defendant appeals.
Defendant's contentions are: (1) The court having declared a mistrial because of the announced inability of the jury to agree on a verdict, the subsequent order of court reopening the case and receiving a verdict as to one count was a nullity. (A) The prosecutor's communications with the jurors before the return of the so-called verdict contaminated the jury's findings. (2) The court erred in refusing to poll the jury upon demand by the defendant. (3) The Act under which defendant was indicted is unconstitutional as applied to the defendant. (4) The Act under which defendant was indicted was repealed without a saving clause before defendant was indicted. (5) There was insufficient evidence to justify the verdict. (A) No proof that defendant knowingly violated the law or that he had the requisite criminal intent. (1) The judge refused to instruct that knowledge was essential. (B) No proof that he "offered to vote." (C) No proof that a court did not restore defendant's rights. (6) Defendant was entitled to his discharge under the Four Term Act. (7) The court erred in failing to inquire about the prejudice of a juror who announced to another juror that "it will be all over in five minutes."
Initially, as defendant seeks reversal without remandment, we consider those contentions which, if considered valid, are sufficiently basic to require final judgment here.
The first considered of these contentions is, "The Act under which defendant was indicted [or convicted] is unconstitutional as applied to the defendant." Defendant asserts that "knowledge of the disability to vote was essential to the proof of the State's case." Defendant maintains that Lambert v. California, 355 U.S. 225 (1957), is controlling on this point. In that case, a Los Angeles Municipal Code provided that any person who had been convicted of a felony was required to register with the police if he remained in the city for more than five days, and that failing to do so constituted a crime. The evidence shows that a Miss Lambert had previously been convicted of forgery and failed to register. Upon such proof, defendant was convicted and sentenced. During the course of her trial she attempted to prove she had no actual knowledge of the requirement that she register. Such offer was refused by the trial court. The United States Supreme Court held the ordinance to be unconstitutional as it applied to the defendant and stated (p 228):
"Engrained in our concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges."
Also, ". . . [A]ctual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand. . . . Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process." (pp 229, 230.)
The State notes that in Lambert v. California, it was also said (p 228):
"But we deal here with conduct that is wholly passive mere failure to register. It is unlike the commission of acts. . . . The rule that `ignorance of the law will not excuse' . . . is deep in our law, as is the principle that of all the powers of local government, the police power is `one of the least limitable.'"
From this the State argues the Lambert case was concerned with punishing passive conduct, and since the complained of actions of defendant were positive, the Lambert case does not apply here. We agree.
Pronouncements made in Thompson v. State, 9 S.W. 486 (Texas) (1888), are pertinent here:
"Upon the trial the court gave an instruction as follows: `If the defendant had been convicted of an assault with the intent to murder, as alleged in the indictment in this cause, and if he knew at the time he so voted that he had been so convicted, such knowledge of his conviction would be equivalent in law to knowing himself not to be a qualified voter.' It is contended by counsel for defendant that said instruction is erroneous in principle, and that it is also upon the weight of evidence. We believe the instruction to be correct and unobjectionable. Ignorance of the law is no excuse for a violation of the law, . . . and no mistake of law excuses one committing an offense. . . . Everyone is conclusively presumed to know the law, both as to civil and criminal transactions. The law is administered upon the principle that everyone must be taken conclusively to know it, without proof that he does know it. . . . As the defendant knew the fact that he had been convicted of the offense of assault with intent to murder, it must be conclusively presumed that he knew the legal consequences of such conviction; That he knew that the law declared that offense to be a felony; and that the constitution and the law made one of the consequences of the conviction his disqualification to vote. He cannot be heard to deny such knowledge; and it was not necessary that it should be proved that he had such knowledge, because the presumption of law supplied and dispensed with such proof. . . . It seems to us that if we were to hold the law to be that the State must prove that the defendant knew that the offense of which he had been convicted was a felony, and that such conviction disqualified him to vote, the effect would be that a conviction for illegal voting by persons convicted of felony could rarely be obtained, because it would be an exceptional case in which such proof could be made. Such a holding would not accord with our understanding of the spirit and reason of the law, and is not supported by any precedent to which we have been cited, or which we have been able to find." (pp 486-487.)
See, also, Gandy v. State, 86 Ala. 20, 5 So. 420, to the same effect.
Defendant also quotes the Fifteenth Amendment to the Federal Constitution:
"Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."
From this, defendant argues, "a convicted felon is no less a citizen of the United States. And although the Fifteenth Amendment was adopted after the Civil War primarily to insure the right to Negroes to vote in southern states, the plain language of the Amendment applies to the defendant here. His `previous condition of servitude' in a penitentiary is held to bar his voting; but that is a condition prohibited by the Amendment."
Defendant further asserts, "The 13th Amendment provides, `Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.' Accordingly involuntary servitude relates to penal confinement. And the 15th Amendment forbids any State to deny the right to vote on account of a person's `previous condition of servitude.' . . . Nor is there any case that has decided squarely that it is not an unconstitutional abridgement of a citizen's right to vote to legislate against a felon from so doing."
In reply to this contention, the State cites Lassiter v. Northampton County Board of Elections, 360 U.S. 45 (1959), where it is said:
"We do not suggest that any standards which a states desires to adopt may be required of voters. But there is wide scope for exercise of its jurisdiction. Residence requirements, age, previous criminal record (Davis v. Beason, 133 U.S. 333, 345-347) are obvious examples indicating factors which a state may take into consideration in determining the qualifications of voters." (p 51.)
"The Fourteenth and Fifteenth Amendments were written into the Constitution to insure to the Negro, who had recently been liberated from slavery, the equal protection of the laws and the right to full participation in the process of government." (p 392.)
We believe the foregoing authorities indicate that defendant's contention that section 29-26, chapter 46, Ill Rev Stats 1961, the basis for the instant indictment, "is unconstitutional as applied to the defendant," is without merit.
Next considered is defendant's contention, "The Act under which defendant was indicted was repealed without a savings clause before defendant was indicted." Therefore, defendant asserts, "No law existed thereafter which made it a crime to `offer to vote.'" Defendant was indicted in May, 1964, for an alleged offense committed April 2, 1963. The indictment charged a violation of section 29-26 of the Election Code (Ill Rev Stats 1961, c 46). Article 29 of said Act was repealed without a saving clause on August 7, 1963, by Laws of 1963, p 2569, § 2.
The State argues the prosecution is valid under the general saving clause of the Construction of Statutes Act (Ill. Rev Stats 1963, c 131, § 4). Defendant argues that People v. Tanner, 27 Ill.2d 82, 188 N.E.2d 42 (1963), requires an "explicit saving clause" incorporating by reference section 4 of the Construction of Statutes Act, and "accordingly, it is clear that the statute under which defendant was indicted and convicted was repealed without a savings clause." We do not agree. In People v. Bilderback, 9 Ill.2d 175, 137 N.E.2d 389 (1956), our Supreme Court considered the application of section 4 of the Construction of Statutes Act, and said (p 181):
"Nowhere in the combination of circumstances out of which this problem arose is there a suggestion that the legislature was expressing its purpose that conduct which took place before the statutory change should no longer be criminal. No thought of a general pardon for those who had committed the offense here involved can be distilled from the circumstances of this legislative change. The case falls squarely within the terms of the Statutory Construction Act, and the judgment was correct."
We consider this statement applies here, notwithstanding the law under which defendant was indicted was repealed without replacement.
Defendant next contends "there was insufficient evidence to justify the verdict." Defendant again argues, "The State failed to prove the defendant had knowledge that he could not `offer to vote.' No means existed by which a person convicted of a felony could avail himself of such knowledge, unless that fact were brought to his attention. Lambert v. California, 355 U.S. 225." Defendant asserts the court refused defendant's instructions, which "related to the requirement that before the jury could find the defendant guilty, it had to find that the defendant's act was done with conscious intent to violate the law and that further `knowledge of a material fact includes awareness of the substantial probability that such fact exists.'" He also states the court "refused to permit the defendant to prove through the wardens of the Illinois Penitentiary that no prisoner was ever told that he could not vote upon his release."
[4-6] We find no merit in any of the foregoing points. As defendant knew he had been convicted of the offense of rape, it must be conclusively presumed that he knew the legal consequences of such conviction. The rule that ignorance of the law is no excuse applies here. In People v. Becker, 179 Ill. App. 446 (1913), the court said (pp 451, 453):
"[T]he rule that ignorance of the law excuses no man applies with all its force to cases of the violation of the election laws; that if the voter is aware of a state of facts which disqualify him under the law and is ignorant of the law, he may be convicted of the crime of illegal voting. . . . We do not perceive any substantial difference between the question of intent, ...