Mississippi Advisory Opinions March 11, 1987: AGO 000007814 (March 11, 1987)

AGO 000007814.

Dear Ms. Lindsey:

Attorney General Pittman has received your request for an official opinion and has assigned it to me for research and reply. You ask the following question:

Under Section 23-5-35, Persons convicted of certain crimes not to be registered, forgery is listed as one of the crimes. Is "uttering forgery" classified the same as "forgery"?

The qualifications required for voting in this state are set forth in Article 11 Section 241 Mississippi Constitution of 1890, as follows:

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.

Note that the residency requirements contained in 241 were modified by the federal court in Graham v. Waller, 343 F.Supp 1 (S.D. Miss. 1972); however that case did not change the qualifications relating to convicts of crime].

Additionally, the legislature has imposed voter qualifications in Sect ion 23-15-11 MCA 1972 (Special Pamphlet 1986) [formerly 23-5-85], as follows:

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 upwards, who has resided in this state for thirty (30) days and for thirty (30) days in the county in which he offers to vote, and for thirty (30) days in the supervisor's district or in the incorporated city or town in which he offers to vote, and who shall have been duly registered as an elector by an officer of this state under the laws thereof, and who has never been convicted of any crime listed in Section 241, Mississippi Constitution of 1890 shall be a qualified elector in and for the county, municipality and voting precinct of his residence, and shall be entitled to vote at any election. No others than those above included shall be entitled, or shall be allowed, to vote at any election.

Section 23-15-9, MCA 1972 (Special Pamphlet 1986) [formerly 23-5-35] states that any person convicted of any crime listed in Section 241 of the Constitution "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". Another statute, Section 99-19-35, MCA 1972, states that a person convicted of certain crimes, including "forgery" "shall not be allowed to vote".

It is obvious that under the cited sections of the code and constitution, a person who has been convicted of forgery is not a qualified elector and should not be registered as such; however, neither the constitution nor the statutes list uttering forgery as a crime the conviction of which disqualifies one as an elector. Therefore, the question is whether the crimes of uttering forgery and forgery are the same or separate offenses for purpose of voter disqualification.

The Supreme Court of Mississippi has held that although uttering is punishable as for forgery, the two crimes are procedurally and substantively separate and distinct offenses. Criddle v. State, 250 Miss. 339, 165 So.2d 342 (1964).

This office has consistently given a narrow or literal interpretation to the sections of the code and constitution previously cited, i.e., if a disqualifying crime is not specifically listed, it is interpreted to be excluded. See attached opinions to Wallace Gray, Jr. (Feb. 26, 1987); Jerry Wallace (Feb, 24, 1986); Eloyce Richardson (Oct. 31, 1985) and O.F. Parker (Apr. 22, 1986).

Based upon the foregoing authorities, it is the opinion of this office that a citizen of this state is not disqualified from voting because of conviction of the crime of uttering forgery.

Sincerely,

EDWIN LLOYD PITTMAN ATTORNEY GENERAL

BY:

WAYNE SNUGGS ASSISTANT ATTORNEY GENERAL

WS:BA