State v. Burns

• Decision Date: 07 June 1943
• Docket Number: 38412
• Parties: State v. Tom Burns, Appellant
• Court: Missouri Supreme Court

172 S.W.2d 259

351 Mo. 163

State v. Tom Burns, Appellant

No. 38412

Supreme Court of Missouri

June 7, 1943

[Copyrighted Material Omitted]

Appeal from Greene Circuit Court; Hon. Thomas R. Moore Special Judge.

Affirmed.

L. L. Collins for appellant.

(1) If this so-called initiative petition is not an initiative petition within the meaning of Section 57 of Article 4 of the Constitution of this State, then it would be no crime for appellant to have written the name of Paul Smith on this petition, or for that matter, all the 49 other names on this petition. State v. Butler, 178 Mo. 272. (2) Section 12294 is, supra, constitutional. It provides . . . "Any person signing any name other than his own to any petition . . . shall be punished, etc. . . ." This law was passed in 1909, yet the title to the act nowhere provides who may sign or who may not sign such a petition or the qualifications of the signer, hence this statute is broader than the title. Laws 1909, p. 554. (3) State's Exhibit I (or State's Exhibit A) was inadmissible in evidence for the reason that it was not an initiative petition to amend the Constitution within the meaning of Section 57, Article IV of the State Constitution, because the Constitution of this State may only be amended in the way and manner pointed out by that instrument itself. Russie v. Brazzell, 128 Mo. 93; Sec. 1, Art. XV, Mo. Constitution. (4) By proposing to repeal certain mentioned sections of the Constitutions, no other sections of the Constitution are to be effected. State ex rel. v. Patterson, 207 Mo. 129. (5) Section 57 of Article IV of the State Constitution, and Section 25 of Article V of the Constitution are not effected by this proposed amendment, and Section 37 of Article IV of the Constitution is not effected by this proposed amendment, and Section 3 of Article V is not effected by this proposed amendment and Section 12 of Article V is not effected by this proposed amendment and Section 14 of Article V is not effected by this proposed amendment and Section 17 of Article V is not effected by this proposed amendment nor is Section 18 of Article V of our Constitution effected by this proposed amendment. Therefore, to pass this proposed amendment would make the Constitution of this State repugnant to itself. And yet all of the above mentioned sections of our Constitution not mentioned in the proposed initiative amendment are cognate provisions and are in conflict with the proposed amendment, yet none of them are set out in the proposed initiative amendment which fact of itself makes this so-called initiative petition utterly void. Moore v. Brown, 165 S.W.2d 657. (6) State's Exhibit I (the so-called initiative petition) is not an initiative petition, was incompetent evidence and inadmissible because it is legislative in character and not constitutional in character. State ex rel. Halliburton v. Roach, 230 Mo. 408; Moore v. Brown, 165 S.W.2d 657. (7) State's Exhibit I, was inadmissible and incompetent evidence against accused because the full text of the proposed amendment is not in the petition addressed to the Secretary of State. Sec. 12287, R. S. 1939. (8) Now this State's Exhibit I, did not, and could not become a demand upon the Secretary of State until it was filed in his office and under Section 12287, R. S. 1939, and for good and sufficient reasons. It should have been filed in the presence of the Governor, yet under the State's evidence, there is no evidence that it was filed, or that the Governor of this State was even in the State of Missouri at the time of its filing, if filed. (9) Again State's Exhibit I, was not admissible in evidence because wholly void if enacted for the reason that its sole and only title is "providing for a single or one-house legislative body" because it contains a number of definite subjects among them being to create a commission on districts, to create a legislative council, to redistrict the State (which is wholly legislative and not constitutional in character), make provisions how the Constitution may hereafter be amended, and require all public officials and state employees to become quasi legislators, and in the event of their failure to assist in legislation they become guilty of contempt and shall forfeit their offices or employment. Yet Section 57 of Article IV of our Constitution vests all legislative authority in our General Assembly consisting of a Senate and House of Representatives. Therefore, this proposed initiative amendment contains a number of different subjects and none of which are clearly expressed in the title of this proposed bill before the people, and is violative of Section 28 of Article IV of our State Constitution. Neither does this proposed initiative petition disclose on its face that it purports to be signed by any percentage whatever of the qualified voters of two-thirds of the congressional districts of this State. (10) Instruction I is broader than the pleadings (the information) in that it authorizes a conviction if the defendant caused or procured the name of Paul Smith to be written on Exhibit I. Because the girl who wrote the name Paul Smith did not even know that she was writing it on an initiative petition, was not a conspirator with the defendant, and did not intend to commit any crime, and did not even know whether she made the name up, or got it out of a directory, and neither she or anyone else claim that defendant was even present at the time the name Paul Smith was written. (11) This instruction is also broader than the evidence because it advised the jury that certain numbered sections were to be enacted instead of certain other numbered sections, when by the very wording of Exhibit I, it does not propose to enact any sections in lieu of other sections, but much on the contrary proposed to initiate certain sections. (12) Instruction I is bad for a further reason, to-wit: It authorizes a conviction of defendant if the jury found that the name "Paul Smith" was signed on said petition (State's Exhibit I) without the consent or authority of said Paul Smith, and by some person other than the said Paul Smith at the procurement of defendant. Therefore, this instruction is broader than the statute under which defendant is charged. (13) This Instruction I is faulty because it used this language "Cause and procure the name of Paul Smith to be falsely signed on the initiative petition set out in the information." There was no initiative petition set out in the information, and for this all important fact, the trial court referred the jury to the information instead of referring them to the evidence. (14) This instruction is faulty and should not have been given because it fails to fix or authorize any designated minimum punishment. State v. Marion, 235 Mo. 359; State v. Herring & Baldwin, 268 Mo. 515; State v. Hurt, 285 S.W. 976; State v. Fair, 177 S.W. 355. (15) The court erred in giving State's instructions on credibility of witnesses. The defendant did not take the stand himself and did not offer one particle of evidence and this instruction on credibility of witness was unwarranted and was a direct comment on the evidence. State v. Summers, 281 S.W. 123; State v. Hamilton, 263 S.W. 127. (16) The information is bad because it fails to apprise the defendant of the nature of the accusation against him. This is not a forgery case, but is purely a statutory offense. This information should set out the initiative petition on which defendant is charged with writing the name "Paul Smith". The prosecutor charging that it is an initiative petition is nothing but a conclusion on his part. (17) The charge in the information that the defendant "knowingly not having the consent, permission, or authority of him, the said Paul Smith, to sign his, the said Paul Smith's, name to said initiative petition is clear outside of and beyond the statute under which the prosecutor is attempting to charge the defendant. State v. Howard, 83 Mo. 299; State v. Wade, 267 Mo. 249. (18) And if the statute which defendant is charged with having violated, permitted a signing by proxy or agent, and the girl who wrote the name "Paul Smith" did not do so at the insistence or request of defendant or in his presence and did not know that she was committing, or did not intend to commit a crime nor was she in any way an intentional conduit for defendant to commit a crime, then the State's evidence not showing that the defendant wrote the name himself and did not know it was written by the girl, does not authorize a conviction. (19) The court erred in retaining on the panel Juror J. S. Buckner who had a fixed opinion touching the guilt or innocence of the accused. (20) It was disclosed in the presence and hearing of the court on the voir dire examination of a juror that he was over 65 years of age, and it then and there became the duty of the court without any request by counsel of defendant to excuse said juror. Sec. 742, R. S. 1939. (21) The prosecuting attorney committed gross misconduct in his closing argument to the jury which is substantiated by defendant's affidavit to his motion for new trial and, no counter affidavit was filed thereto. Sec. 4082, R. S. 1939, in speaking of the accused not availing himself of his right to testify, uses this language, "Nor shall the same raise any presumption of guilt nor be referred to by any attorney in the case." Defendant's counsel could not have respected this statute and at the same time objected to the argument of the prosecuting attorney for indirectly referring to the fact that defendant had not taken the witness stand and denied any of the State's case.

Roy McKittrick, Attorney General, and William C. Blair, Assistant Attorney General, for respondent.

(1) The constitutionality of Section 12294, R. S. 1939, was not...