Mississippi Advisory Opinions April 10, 1984: 19840410 (April 10, 1984)

Advisory Opinion Text

Honorable Glen D. Fortenberry

Circuit Clerk

Magnolia, Mississippi 39652

Re: Elections - Qualifications to Vote

Dear Mr. Fortenberry:

Attorney General Edwin Lloyd Pittman has received your letter of request and has assigned it to me for research and reply.

Your letter states:

“Please advise whether or not I am to register a person to vote who states on his application that while in the military service stationed in Germany he was tried and convicted by the civilian authorities in Germany of murder. This offense and conviction occurred in 1972.”

Section 241, Mississippi Constitution of 1890, provides:

“Every inhabitant of this state, except idiots and insane persons, who is a citizen of the United States of America, eighteen (18) years old and upward, who has been a resident of this state for one (1) year, and for one (1) year in the county in which he offers to vote, and for six (6) months in the election precinct or in the incorporated city or town in which he offers to vote, and who is duly registered as provided in this article, and who has never been convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy, is declared to be a qualified elector, except that he shall be qualified to vote for President and Vice President of the United States if he meets the requirements established by Congress therefor and is otherwise a qualified elector.”

Mississippi Code Annotated § 23-5-35 (1972) provides:

“A person who has been convicted of murder, rape, bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement, or bigamy, shall not be registered, or, if registered, the name of such person shall be erased from the registration book on which it may be found by the registrar or by the election commissioners. Whenever any person shall be convicted in the circuit court of his county of any of said crimes, the registrar shall thereupon erase his name from the registration book; and whenever any person shall be convicted of any of said crimes in any other court of any county, the presiding judge thereof, or the justice of the peace, shall, on demand, certify the fact in writing to the registrar, who shall thereupon erase the name of such person from the registration book, and file said certificate as a record of his office.”

The Mississippi Supreme Court in State ex rel. Mitchell v. McDonald , 164 Miss. 405, 145 S. 508 (1933), while considering the question of whether or not the conviction of a disqualifying crime by a federal court would prohibit one from holding an office in this state said:

“The question as applied to the disability of a person to testify has arisen in many cases, and the reasoning and principles applied in those cases apply with equal force to a disqualification for holding office arising out of a conviction of crime, and lead to the conclusion that only convictions of crimes committed under the jurisdiction of this state will disqualify one from holding office in this state. In 29 Cyc. at page 1385, this doctrine is announced in the following language: 'The constitution or a statute frequently disqualifies for office one who has been convicted of a felony or a crime generally. Where the constitution contains such a provision it applies to crimes committed under the jurisdiction of the state providing the disqualification and not to crimes against another government.'

“In 1 Wigmore on Evidence (2 Ed.), par. 522, there is quoted with approval the text of Greenleaf on “Evidence, par. 376, to the following effect: 'But the weight of modern opinion seems to be that personal disqualifications not arising from the law of nature but from the positive law of the country, and especially such as are of a penal nature, are strictly territorial, and cannot be enforced in any country other than that in which they originate. Accordingly it has been held, upon great consideration, that a conviction and sentence for a felony in one of the United States, did not render the party incompetent as a witness, in the courts of another state; though it might be shown in diminution of the credit due to this testimony.'

“In Commonwealth v. Green , 17 Mass. 515, it was held that 'the conviction of an infamous crime in a foreign county, or in any other of the United States, does not render the subject of such conviction an incompetent witness in the courts of this state, ' and Mr. Wigmore summaries the reasons assigned by the Massachusetts court for so holding as follows: '(1) The difficulty of raising an issue as to the record, (2) the diversity of ideas as to criminal conduct in different countries, (3) the hardship of disqualifying by old and forgotten offenses in other lands, (4) the principle that penal laws have no effect beyond the jurisdiction, (5) the fact that infamy is a punishment as well as stigma on character.'

“In the case of Logan v. U.S. 144 U.S. 263, 12 S.Ct. 617, 630, 36 L.Ed. 429, the Supreme Court of the United States said: 'At common law, and on general principles of jurisprudence, when not controlled by express statute giving effect within the state which enacts it to a conviction and sentence in another state, such conviction and sentence can have no effect, by way of penalty, or of personal disability or disqualification, beyond the limits of the state in which the judgment is rendered.' “In the case of In re Ebbs , 150 N. C. 44, 63 S. E. 190, 194, 19 L.R.A. (N.S.) 892, 17 Ann. Cas. 592, the court had under consideration the question of the disbarment of an attorney on account of his conviction of forgery in the Circuit Court of the United States, Eastern District of Louisiana; the state of North Carolina requiring that an attorney at law should be disbarred upon his being convicted of a crime punishable by imprisonment in the penitentiary. In discussing the question, the court said: 'If any other interpretation were put upon our statute, it would logically follow that, for violation of the federal statutes or statutes of other states, citizens of this state would forfeit their right to vote under our constitution. Certainly the people of North Carolina never contemplated that any such construction would be put upon their laws. . . . We are of the opinion that upon well-settled principles and sound reason the statute is confined to a conviction in this state.”'

Also, see State ex rel. Muirhead v. State Board of Election Commissioners , 259 So.2d 698 (1972) .

Based on the above decisions, it is the opinion of this office that a murder conviction in a foreign country does not disqualify one to vote in the State of Mississippi.

Therefore, assuming the person in question meets all other constitutional and statutory requirements of a qualified elector, he is entitled to be registered as such.

Very truly yours,

Edwin Lloyd Pittman Attorney General.