State v. O'Brien

• Decision Date: 13 May 1902
• Citation: 168 Mo. 404,68 S.W. 341
• Parties: STATE v. O'BRIEN.
• Court: Missouri Supreme Court

68 S.W. 341

168 Mo. 404

STATE v. O'BRIEN.

Supreme Court of Missouri, Division No. 2.

May 13, 1902.

ELECTIONS — FALSE IMPERSONATION OF ELECTOR — REGISTRATION BOOKS — SUFFICIENCY OF PRESUMPTION.

On a prosecution under Rev. St. 1899, § 7261, which makes it a felony for one to personate an elector, an instruction that, if the jury believed from the evidence that the name of L. appeared upon the registration books of a certain precinct, this fact was prima facie evidence that L. was an elector, was error, as the mere presumption that the registration books were correct was insufficient to overcome the presumption of defendant's innocence.

Appeal from St. Louis circuit court; Franklin Ferris, Judge.

Jack O'Brien was convicted of falsely personating an elector, and appeals. Reversed.

T. J. Rowe, for appellant. Edward C. Crow, Atty. Gen., for the State.

SHERWOOD, J.

Prosecution under section 7261, Rev. St. 1899, which makes it a felony for one to personate an elector, etc. The court gave this instruction: "Second A. The court instructs the jury that, if you believe from the evidence that the name of Thomas Leonard appeared upon the registration books of the particular precinct in the indictment named and offered in evidence, then this fact is prima facie evidence that said Leonard was an elector, and entitled to vote in said precinct." There was no evidence to support the charge that Thomas Leonard was an elector, except his name was registered as of a certain number. The mere fact of such registration was, of course, insufficient to overcome the presumption of defendant's innocence, and thus convict him of a crime. Something more is necessary to convict of a crime besides a mere presumption that a registering officer has done his duty. The same question here presented was also presented in State v. Shelley (Mo. Sup.) 66 S. W. 430. For like reason as there presented, the judgment will be reversed, and the cause remanded. All concur.