The opinion
Pending the motion for rehearing our attention has been called by the State to the fact that the original opinion appears to be predicated on sections 67 and 70 of the law of 1905, whereas this offense was committed prior to the law of 1905 going into effect, and was controlled by the election law of 1903, sections 37 and 65 of said act of 1903 being applicable. Section 37 does not authorize the presiding judge of the election to act in cases of misdemeanor and issue warrants, but authorizes him to only act and issue warrants for felony, and breach of the peace committed at such election. There is no inhibition in the law of 1903 against carrying memorandum into the booth by the voter. Section 65 provides, "Any judge may require a citizen to answer under oath before he secures an official ballot whether he has been furnished with any paper or ballot on which is marked the names of those for whom he has agreed or proposed to vote, or has such paper or marked ballot in his possession, and he shall not be furnished with an official ballot until he has delivered to the judge such marked ballot or paper, if he has one, which, on delivery, shall without examination be destroyed by the judge." This is all we find with reference to the memorandum, and there is no provision in the law of 1903 as in the law of 1905 (see sec. 70, Terrell Act), providing for the punishment, as for a misdemeanor, of one who takes a writing with names of persons written thereon into the booth for whom he intends to vote. So that we were in error in applying the law of 1905 to this case. Of course, in the absence of the provisions above referred to the opinion is strengthened rather than weakened, and the propositions therein announced are correct for the additional reason that the law of 1905 does not apply to this case. Indeed, the essential features on which appellant proceeded to act as presiding judge, and on which he ordered the arrest of the prosecutor are eliminated from the case. We have examined very carefully the brief filed by appellant on motion for rehearing, and there are no questions presented which were not discussed in the original opinion. *Page 417
There being no errors in the record, the motion for rehearing is overruled.
Overruled.