State v. O'Brien

• Citation: 228 Mo. 404,128 S.W. 732
• Parties: STATE v. O'BRIEN.
• Decision Date: 26 May 1910
• Court: United States State Supreme Court of Missouri

128 S.W. 732

228 Mo. 404

STATE v. O'BRIEN.

Supreme Court of Missouri, Division No. 2.

May 26, 1910.

1. CRIMINAL LAW (§ 1167) — HARMLESS ERROR —VARIANCE —STATUTORY PROVISIONS.

Under Rev. St. 1899, § 2534 (Ann. St. 1906, p. 1508) providing that whenever there shall appear to be any variance between the indictment or information and the evidence in the Christian name or surname or both of any person therein described, it shall not be deemed ground for an acquittal unless the court shall find that the variance is material to the merits of the case and prejudicial to the defense; it is for the trial court to determine whether any variance between the pleading and proof as to a name is material.

2. CRIMINAL LAW (§ 1167) — HARMLESS ERROR —VARIANCE—EFFECT OF FINDINGS BY COURT AS TO PREJUDICE.

Where the indictment charged that the defendant fraudulently registered at an election under the name of Murphy, and the evidence showed that he stated his name to the election officers as Murphy, but in signing the books wrote it "Murpy," the overruling of a demurrer to the evidence on the ground of variance, and the submission to the jury of the question whether the defendant falsely signed the books by writing his name as Murpy, being in effect a finding that the variance, if any, was not material to the merits nor prejudicial to the defense, was not error.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

Thomas O'Brien was convicted of falsely registering on election registration books under an assumed name, and he appeals. Affirmed.

The defendant was indicted at the June term, 1908, of the circuit court of the city of St. Louis, for the offense of falsely and fraudulently registering on the election registration books of the third precinct of the Sixteenth ward of the city of St. Louis under a name not his own, to wit, under the name of "John Murphy," his true name being Thomas O'Brien. At the December term, 1908, of said court the defendant was tried and convicted of said offense, his punishment being assessed at imprisonment in the penitentiary for a term of three years and six months. After motions for new trial and in arrest of judgment were filed and overruled, judgment was entered in accordance with the verdict, from which judgment defendant appeals to this court.

The testimony shows that, pursuant to the election laws governing the city of St. Louis, there was a general registration of the voters and electors of said city on the 14th, 15th, 16th, and 17th days of September, 1908, said registration being conducted under the supervision of the election commissioners, and by judges and clerks duly appointed, sworn and qualified. In accordance with statutory provisions, every person applying for registration was required to state, under oath, his place of residence, name, date of birth, age, occupation, duration of residence in the precinct, city, and state, and certain other matters touching his qualifications and right to register as a voter. The answers of the applicant for registration were recorded in records prepared and kept for that purpose. If the answers were satisfactory to the judges, the applicant was declared a qualified voter, and the word "Yes" entered opposite the name of the applicant, in a column headed by the words "Qualified Voter," and the applicant was then permitted to sign, at the proper place on the records, his name as a qualified voter.

On the 14th day of September, 1908, the defendant appeared before the judges and clerks of registration of the Third election precinct of the Sixteenth ward, and requested permission to register. After being duly sworn, and in answer to the prescribed questions, he stated that his name was John Murphy, and that he resided at 1119 Cass avenue, within said ward and precinct. These answers, with others, were written by the clerk in the registration records, the name given by the defendant, "John Murphy," being so entered by the clerk. The defendant then, at the proper places in said registration books, signed his name as "John Murpy," immediately after doing which, and as he was leaving the room, he was arrested by a police officer, who was present when he registered, and who knew his true name to be Thomas O'Brien. He was taken to the police station, where he gave his name as John Murphy. While being taken to the police station, he repeatedly requested the police officer to permit him to escape, saying, among other things, that members of his family had for many years been friends and acquaintances of the officer, and that no one would know of the occurrence if the officer would release him.

The state proved by several witnesses who were acquaintances of the defendant that the defendant's name was Thomas O'Brien. Defendant offered no testimony on his own behalf but at the close of the evidence for the state asked the court for an instruction in the nature of a demurrer to the evidence, which was refused, to which action of the court defendant excepted, and preserved the point in his motion for a new trial.

C. Orrick Bishop, for appellant. E. W. Major, Atty. Gen., and Chas. G. Revelle, Asst. Atty. Gen., for the State.

FOX, J. (after stating the facts as above).

The one contention of the defendant in this case is that there was a fatal variance between the allegations and the proof, and that the court, therefore, erred in overruling the demurrer to the evidence. As supporting his said contention, defendant cites the case of State v. Judd, 221 Mo. 554, 120 S. W. 780, but which case, as we shall hereafter show, is distinguishable from the case at bar.

The indictment charges that the defendant represented to the judges and clerks of registration that his name was John Murphy, and then alleges that he, "then and there, unlawfully, feloniously, willfully, knowingly, falsely and fraudulently, did sign said registers, pollbooks and books of registration of said election precinct, in the margin on said books provided for the signatures of registered electors and voters, under the said name `John Murphy,' by writing on said books the words and name `John Murphy.'" The proof is strong and incontestable that the defendant did represent to the judges and clerks of registration that his name was John Murphy, and it...