Omohundro v. State

• Decision Date: 27 March 1937
• Citation: 109 S.W.2d 1159,172 Tenn. 48
• Parties: OMOHUNDRO et al. v. STATE.
• Court: Tennessee Supreme Court

109 S.W.2d 1159

172 Tenn. 48

OMOHUNDRO et al. v. STATE.

Supreme Court of Tennessee.

March 27, 1937

Error to Criminal Court, Davidson County; Chester Hart, Judge.

John M Omohundro and others were convicted of conspiracy to violate statutes relating to registration of voters, and they bring error.

Judgment reversed, and case remanded for new trial.

W. M Fuqua, W. D. Dodson, and Charles Embry, all of Nashville, for plaintiffs in error.

W. F Barry, Jr., Asst. Atty. Gen., for the State.

DeHAVEN Justice.

Plaintiffs in error, John M. Omohundro, Seth P. Gibson, Jr., and James Ballard, hereinafter referred to as defendants, were convicted upon an indictment charging them with a conspiracy to violate sections 1996-2026 of the Code, relating to the registration of voters, and their punishment fixed at a fine of $750 each by the jury, and each given a workhouse sentence of 11 months and 29 days by the court. From a judgment in accordance with the verdict of the jury and the imprisonment fixed by the court, defendants have appealed to this court and assigned errors.

Under section 11064 of the Code, the crime of conspiracy may be committed by two or more persons conspiring to commit any indictable offense. Under section 11065 of the Code, persons so conspiring are guilty of a misdemeanor. The indictable offense charged in the indictment is found in section 2022 of the Code which is, in part, as follows:

"It shall be a misdemeanor for any person to register or have his name registered as a qualified voter under this article, when he is not such a qualified voter; or to vote, or attempt to vote, on any certificate of registration issued under the provisions of this article to some one other or otherwise than the person voting, or offering to vote, on the same; or to procure or induce any other person to register or be registered as a voter not being legally qualified as such; or to induce or procure any other person to vote, or attempt to vote, on any certificate issued under the provisions of this article to another or otherwise than to the person voting, or offering to vote, on the same; or to alter, change, forge, or counterfeit, or procure the same to be done by another, the certificates of registration provided for in this article; or to issue, circulate, or in any way use, or attempt to use, any fraudulent certificate of registration, the same not having been regularly issued by duly appointed and legally qualified registrars, as provided for in this article. And any person convicted of either of said offenses shall be fined not less than fifty dollars, or be confined in the county jail or workhouse not less than thirty days, or both, in the discretion of the court."

The indictment charged, in substance, that defendants entered into a conspiracy to forge, counterfeit, and issue the voting certificates of registration of numerous persons, fictitious and real, as of the dates of the regular biennial registration held by the Davidson county election commission on August 12-16, inclusive, and said certificates of registration, in accordance with said conspiracy, were to be recorded, and said persons, fictitious and real, were to be enrolled on the registration books of the Third civil district, Davidson county, Tenn., as qualified voters of said district.

Section 11066 of the Code is as follows:

"No agreement shall be deemed a conspiracy unless some act be done to effect the object thereof, except an agreement to commit a felony on the person of another, or to commit the crimes of arson or burglary."

It was charged in the indictment that the defendant Omohundro, as an overt act in furtherance of the unlawful conspiracy, surreptitiously obtained the regular registration certificate book of said district, containing blank certificates, with stubs attached thereto, and wrote on said stubs the names of hundreds of persons, fictitious and real, numbering the stubs and giving the name, age, color, sex, occupation, and address of such persons.

It was further charged that defendants Gibson and Ballard, as an overt act in furtherance of said conspiracy, each surreptitiously obtained the registration books, or scrolls of said district, and each enrolled in the books so obtained by them the names of hundreds of persons, fictitious and real. It was further charged that, as a joint overt act in furtherance of said conspiracy, all of the defendants enrolled said persons in the registration certificate stub book and registration books, using corresponding numbers, ages, color, sex, occupation, and addresses.

The proof shows that the registrars for the Third civil district for the biennial registration held August 12-16, 1935, were M. E. Benson, Sr., and Mrs. W. R. Johnson, the 28 year old daughter of defendant Omohundro, who lived with her husband in certain rooms of her father's home. At the close of each day's registration, except the first two days, Mrs. Johnson took charge of the books. Where she deposited or kept them overnight is not shown in the proof. Mrs. Johnson did not testify in the case. The State and the defendants stipulated that the failure to introduce her as a witness should not prejudice the case as to any of the parties. It is the theory of the State that defendant Omohundro gained access to these books at night while they were in his home. This is denied by Omohundro. There is no proof that defendants Gibson and Ballard were in Omohundro's house on these or any other nights. Both deny they were there, and both deny meeting Omohundro at any other place during the period in question.

It is not questioned by defendants that fraudulent entries were made in the registration books and the certificate stub book showing the enrollment of hundreds of voters. Defendants deny, however, any connection with these fraudulent entries.

Defendant Omohundro, 52 years of age, has been a justice of the peace from the Third civil district since 1924. He was constable of that district for about eighteen years and served as capias officer in the criminal court of Davidson county for several years. During the World War he was chief of detectives of the United States government at the Old Hickory Powder Plant. He also served as acting city judge for the city of Nashville for about two and one half years. He proved on the trial a good reputation.

Defendant Seth P. Gibson, Jr., 48 years of age, is a resident of the Third civil district, where he lives with his wife and two small boys. His occupation during the time here in question is not clearly shown. He has known defendant Omohundro for about 30 years and they are close friends. He has known the defendant Ballard about two or three years, but only to speak to him, and has seen him very little. It was shown by the State's witness, M. E. Benson, Sr., who had been acquainted with Gibson for ten or fifteen years, and who had been serving as registrar in that district for twelve or fifteen years, that he had never seen Gibson take an active part in or have anything to do with the registration of voters, other than to register. Gibson denied having any interest in any election. He introduced certain character witnesses, and proved a good reputation. It does not appear that he was ever before accused of any criminal act.

Gibson testified that on Friday night, August 16, 1935, he was at home with a sick child; that he worked on Saturday and that night talked to a guest from New Orleans, and later in the night left for a fishing trip to Arrow Lake, and returned Sunday night. He exhibited a fishing permit dated August 18, 1935, and a copy from the records of the telephone company, at Nashville, showing a call at 6:35 p. m. Saturday to Mt. Pleasant, near which place Arrow Lake is located. This call, he says, was to make arrangements for a boat. The witness Stribbling testified that in the summertime he went fishing with Gibson almost every Sunday, but had no independent recollection of this particular date. Gibson says Stribbling accompanied him on this occasion.

Defendant James Ballard, 29 years of age, is a negro. He is a schoolteacher, being principal of the Old Hickory School. He is a graduate of A. & I. State College, and attended Walder College and Fisk University. He has lived in the city of Nashville between eight and ten years, and prior thereto lived in the Third civil district, where he has relatives. He says he knew Omohundro by sight for several years, and also Gibson, but got acquainted with them at the trial of this case. He denies having taken any part in the registration in question, and no one saw him in or about the places of registration. He is not shown to have had any interest in any election or candidate for office. He was never before accused of any crime, and proved, on the trial, a good reputation.

The State showed that the registrar, M. E. Benson, Sr., was aided at times in the work of registration by his son and his son's wife. Also, that at times he would get one of the clerks in the store where the registration was being held to assist. On one occasion, Benson, Jr., says defendant Omohundro, wrote three or four of the names in the books. Confessedly, the books contain the writing of a number of different people. The registration seems to have been loosely conducted. The statute (Code, § 2016) requires that at the close of each day's registration, the registrars shall draw a heavy black line, in ink, immediately under the last name registered on that day, entirely across the page. This was not done, and this omission made possible to a large extent the fraudulent addition of other names.

The fraudulent registrations appear in three main groups. The first group, under dates August 14 and 15, from number 296 to 415, inclusive, with the exception of...