Klein v. United States

• Decision Date: 07 November 1949
• Docket Number: 13657.,No. 13656,13656
• Citation: 176 F.2d 184
• Parties: KLEIN v. UNITED STATES. BURKE v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

176 F.2d 184 (1949)

KLEIN v. UNITED STATES.

BURKE v. UNITED STATES.

Nos. 13656, 13657.

United States Court of Appeals Eighth Circuit.

July 21, 1949.

Rehearing Denied August 15, 1949.

Writ of Certiorari Denied November 7, 1949.

Ira B. McLaughlin, Independence, Mo., and Walter A. Raymond, Kansas City, Mo. (Will H. Hargus, Joseph Koralchik and Louis Wagner, Kansas City, Mo., on the brief), for appellants.

Richard K. Phelps and William A. Paisley, Special Assistants to the Attorney General (Alexander M. Campbell, Assistant Attorney General, on the brief), for appellee.

Before GARDNER, Chief Judge, and THOMAS and RIDDICK, Circuit Judges.

Writ of Certiorari Denied November 7, 1949. See 70 S.Ct. 145.

GARDNER, Chief Judge.

Appellants and three others were indicted upon a charge of conspiracy forbidden by Section 19 of the Criminal Code, Title 18, U.S.C., Sec. 51 now 18 U.S.C.A. § 241, which, so far as here pertinent, reads as follows:

"If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same * * * they shall be fined not more than $5,000 and imprisoned not more than ten years, * * *."

The charged conspiracy embraced (1) obstructing, hindering and preventing lawfully qualified and registered voters from voting; (2) permitting and causing unqualified voters to vote in the name and place of duly qualified voters in order to deprive them of their rights, and (3) causing the officials of the election to record and count votes of unqualified persons who appeared at the polls and voted in the name and place of qualified registered voters. The election involved was a primary election held in Kansas City, Missouri, on August 6, 1946, to vote for candidates for nomination for members of Congress from said state. It was charged that the conspiracy was to be effected in the tenth precinct of the first ward of Kansas City, Missouri. We shall refer to the appellants as they were designated in the trial court.

Upon arraignment defendants interposed a motion to dismiss the indictment on the ground that it did not state facts sufficient to constitute an offense against the United States or the laws thereof. This motion was denied and all five defendants stood trial. At the conclusion of the Government's case two of the defendants were on motion granted judgments of acquittal. The jury convicted the other three defendants but on motion in arrest of judgment the court arrested the judgment as to one of the other defendants but denied it as to the defendants here named.

A motion for a new trial having been denied, defendants prosecute these appeals, seeking reversal on substantially the following grounds: (1) the court erred in denying their motion for dismissal of the indictment because the statute involved does not apply to primary elections in Missouri; (2) the court erred in admitting in evidence the stamped voting records on the back of the registration affidavits in Exhibits 1 and 2, as proof that fraudulent votes were cast by impersonators of the registrants; (3) the court erred in admitting copies of parts of a poll book designated as Exhibit 6 and Exhibit 7; (4) the court erred in permitting the Government to offer evidence that voters were given assistance by the election judges without subscribing an oath in writing or taking an oral oath; (5) the court erred in admitting testimony of certain named witnesses as to alleged transactions for the reason that these transactions were res inter alios acta as to each defendant; (6) the court erred in refusing defendants' requested charge numbered 3; (7) the court erred in denying motions for judgment of acquittal of defendants.

The question of controlling importance is whether the party primary of August 6, 1946, was such an integral part of the subsequent general election of that year that the statute here invoked has any relevancy. It is argued that the Constitution secures only the right to vote in an election. Under the laws of Missouri the primary election is the only method by which one may receive the nomination of a political party. It is the initial step looking to the nomination of party candidates whose names are to be placed on the official ballot. Not only is this the only method provided by which one may receive the nomination of a political party, but it is the only method whereby the individual member of that political party may indicate his choice as between candidates. Its purpose manifestly was to give the same vitality to the constitutional guaranty of a free ballot in the choice of party candidates as in the choice of candidates on the final election. It was unknown to the common law but is a creature of statute. It is of comparatively modern origin, stemming, it is said, from a desire to correct supposed abuses in the old convention and caucus systems of nominating, and to give to electors direct control in the selection of their own candidates. There is some conflict in the decisions as to whether constitutional or statutory provisions relating to general elections apply to all classes of primary elections. The ultimate test has, we think, been determined by the Supreme Court in United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 1039, 85 L.Ed. 1368. The primary there involved was the Louisiana State Primary, where success in the primary was said to be tantamount to election so that the primary was in effect an election. In that case, however, the court did not rest its decision entirely upon the conclusive effect of the primary election. In the course of the opinion it is said,

"Where the state law has made the primary an integral part of the procedure of choice, or where in fact the primary effectively controls the choice, the right of the elector to have his ballot counted at the primary, is likewise included in the right protected by Article I, § 2. And this right of participation is protected just as is the right to vote at the election, where the primary is by law made an integral part of the election machinery, whether the voter exercises his right in a party primary which invariably, sometimes or never determines the ultimate choice of the representative."

In a later case, Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 763, 88 L.Ed. 987, 151 A.L.R. 1110, the Supreme Court, in speaking of the Classic case, said inter alia,

"By this decision the doubt as to whether or not such primaries were a part of `elections' subject to Federal control, which had remained unanswered since Newberry v. United States, 256 U.S. 232, 41 S.Ct. 469, 65 L.Ed. 913, was erased. The Nixon cases Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 769; Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984, 88 A.L.R. 458 were decided under the equal protection clause of the Fourteenth Amendment without a determination of the status of the primary as a part of the electoral process. The exclusion of Negroes from the primaries by action of the State was held invalid under that Amendment. The fusing by the Classic case of the primary and general elections into a single instrumentality for choice of officers has a definite bearing on the permissibility under the Constitution of excluding Negroes from primaries."

Without minutely analyzing the various provisions of the Missouri primary election law, Mo.R.S.A. § 11546 et seq., it is to be observed that the statute provides that, "all candidates for elective offices shall be nominated by a primary election held in accordance with this article. * * *" The statute provides the time and place for holding primary elections, an official ballot at the primaries is provided for, its distribution is required, and the election expense is to be paid from the public treasury. Section 11569 of the Revised Statutes of Missouri, 1939, Mo.R.S.A., provides,

"The person receiving the greatest number of votes at a primary as the candidate of a party for an office shall be the candidate of that party for such office, and his name as such candidate shall be placed on the official ballot at the following election."

The result of the primary election is required to be published and certified to county clerks by the Secretary of State, and only the names of persons receiving the greatest number of votes at the primary as candidates of a party for office are placed on the official ballot. Judges and clerks of election are appointed just as in the case of general elections and the penalties and provisions of general election laws are made applicable to primaries. Under the primary system no one can be elected to office without receiving nomination at a primary election, except by petition as provided by Section 11534 of the Revised Statutes of Missouri 1939, Mo.R.S.A. One, however, may not become a nominee of a political party by petition. The primary law is a compulsory system and we think is an integral part of the general election laws of the state for the election of public officers, including Members of Congress. It is clear that the vote at the primary election determines the name of the candidate of a political party to appear on the ballot at the general election, and we think it follows that the right to vote at such a primary for the nomination of candidates for Congress, and to have the vote counted as cast, is a right secured by the Federal Constitution.

Over defendants' objection the court admitted in evidence Government's Exhibits 1 and 2, two books, the original and duplicate, being the record of qualified registered voters or registration record for the tenth precinct of the first ward, Kansas City, Missouri. Exhibit 1 is described as the original binder containing registration affidavits and the voting record stamped on the back thereof. These exhibits are original public records of a permanent nature. The...