State v. Dunwoody

• Decision Date: 29 November 1910
• Citation: 132 S.W. 227,231 Mo. 48
• Parties: THE STATE v. WILLIAM DUNWOODY, Appellant
• Court: Missouri Supreme Court

132 S.W. 227

231 Mo. 48

THE STATE v. WILLIAM DUNWOODY, Appellant

Supreme Court of Missouri, Second Division

November 29, 1910

Appeal from St. Louis City Circuit Court. -- Hon. Geo. H. Shields Judge.

Affirmed.

Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.

(1) The indictment was drawn under Sec. 4441, R. S. 1909 (2120 j Laws 1903, p. 158). It conforms to the form approved in State v. Cummings, 206 Mo. 623. It is not subject to the criticism to which the information was subjected in State v. Keating, 202 Mo. 201. The Cummings case was followed in the case of State v. Tiernan, 223 Mo 147. The case at bar is a prosecution for attempting to register under a name not that of appellant, while the Cummings and Tiernan cases were prosecutions for the completed offense. The indictment here follows the cases named, as stated, and also charges the attempt in proper manner. The indictment charges the appellant with doing everything he could have done short of actually registering under the name of "George Casey." If an attempt can be charged under the section mentioned (as it assuredly can), this indictment clearly charges it. This indictment was not drawn under Sec. 4894, R. S. 1909, but under Sec. 4441, R. S. 1909. Consequently there was no need to allege that appellant was "prevented or intercepted," as in State v. Montgomery, 109 Mo. 645. Such allegation is not necessary in indictments drawn under sections of the statute aimed directly at the punishment of an attempt to commit a specified crime. State v. Neal, 178 Mo. 69. Cases of this kind are not further applicable here, but in the respect mentioned seem in point. (2) All that is required is substantial evidence of guilt. This much and more appears in the record brought here. The request to instruct an acquittal was properly refused. State v. Miller, 188 Mo. 379; State v. McGhee, 188 Mo. 409; State v. Smith, 190 Mo. 723. (3) The first objection in the record was as to a certain signature of appellant of date July 5, 1907. Appellant's identity as William Dunwoody was an issue. A former signature by him as William Dunwoody was entirely competent. It was equivalent to an admission of his identity, and no more. Besides, the paper is not brought here, and this court cannot assume its incompetency. (4) The second objection was to the admission of appellant's signature under the name of William Dunwoody on the registration books of a precinct other than that in which the offense charged in the indictment was committed. Appellant was identified as the man who there signed as William Dunwoody. Appellant's counsel asserted in the course of a colloquy concerning the admission of this evidence that he did not admit appellant's name to be William Dunwoody. There was no intimation that appellant had committed any offense by registering in the other precinct. Under these circumstances his signature was admissible as an admission of his identity, in connection with the other evidence on that head. Even evidence tending to show the identity of the accused is admissible, even though such evidence tends to show him guilty of a separate offense. Underhill on Crim. Ev., sec. 91; 1 Wigmore on Ev., sec. 414. (5) The first instruction is a copy of one heretofore approved by this court, except that it instructs as to an attempt to register instead of as to the completed offense. State v. Cummings, 206 Mo. 618. (6) The instructions as to (a) the indictment, (b) the presumption of innocence, (c) reasonable doubt, (d) credibility of witnesses, (e) the exclusion of remarks and questions of counsel and testimony stricken out, (f) and argument of counsel, are in oft-approved form. State v. Donnelly, 130 Mo. 648; State v. Alexander, 119 Mo. 459; State v. Nueslein, 25 Mo. 124; State v. Wright, 134 Mo. 419; State v. Hudspeth, 159 Mo. 193; State v. Brooks, 92 Mo. 557.

OPINION

BURGESS, J.

Defendant was convicted in the circuit court of the city of St. Louis of the offense of attempting to register as a voter under a name not his own, and his punishment assessed at two years and six months in the penitentiary. Timely motions for new trial and in arrest of judgment were filed and overruled. Sentence was formally pronounced and an appeal allowed to this court. The facts disclosed by the evidence are as follows:

On the 14th, 15th, 16th and 17th of September, 1908, there was a general registration of voters in the city of St. Louis. The judges and clerks of registration for the Ninth election precinct of the Fifteenth ward of said city had been duly appointed, had qualified, received the necessary books and blanks, and entered upon the discharge of their duties. On the 17th day of September, 1908, between nine and ten o'clock a. m., the defendant presented himself before the judges and clerks of the said Ninth election precinct of the Fifteenth ward, and said he desired to register. He gave his name as George Casey, his residence as No. 709 North 18th street, and was duly sworn by one of the judges of registration. A second judge then challenged the defendant's right to register, and called in a police officer, who placed him under arrest. At the police station he first gave his name as George Casey, and then admitted that his name was Dunwoody. He was identified as William Dunwoody by several policemen who knew him. It appeared from the evidence that defendant had previously registered in another election precinct under the name of William Dunwoody, and he was identified as the man who there signed under that name. Such signature was offered in evidence by counsel for the state for the purpose of identifying the defendant as William Dunwoody.

The defendant offered no testimony, but moved the court to instruct the jury to acquit, which motion was denied, and defendant excepted.

Defendant's counsel filed no brief in this case, and he is not represented in this court. Several grounds for new trial are set out in the motion therefor. Most of these are of a very formal and general nature, and we shall pass upon such only as seem pertinent and worthy of consideration.

First as to the indictment, the sufficiency of which is challenged both in the motion for new trial and in arrest. The indictment was drawn under section 4441, Revised Statutes 1909 (Sec. 2120j, Laws of 1903, p. 158). It conforms to the form approved in the case of State v. Cummings, 206 Mo. 613, 105 S.W. 649, and again approved in the case of State v....