State v. Exnicious

• Decision Date: 23 November 1909
• Citation: 223 Mo. 61,122 S.W. 730
• Parties: STATE v. EXNICIOUS.
• Court: Missouri Supreme Court

122 S.W. 730

223 Mo. 61

STATE v. EXNICIOUS.

Supreme Court of Missouri, Division No. 2.

November 23, 1909.

1. ELECTIONS (§ 329) — OFFENSES — FRAUDULENT REGISTRATION — EVIDENCE.

Evidence held to sustain a conviction of fraudulent registration.

2. ELECTIONS (§ 328) — OFFENSES — FRAUDULENT REGISTRATION — VARIANCE.

Where an indictment charged that defendant falsely registered under the name "Joseph Walters," which was not his true name, evidence that in signing the primary books on two occasions he misspelled the word "Joseph" and the word "Walters," by omitting the final letter of each word, did not constitute a fatal variance.

2. ELECTIONS (§ 329) — OFFENSES — FRAUDULENT REGISTRATION — EVIDENCE.

The secretary of the board of election commissioners was competent to testify that there was a general registration of voters in the city of St. Louis on the 15th day of September, 1908, on which date it was claimed accused was guilty of fraudulent registration.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Harry Exnicious was convicted of fraudulent registration, and he appeals. Affirmed.

This cause is now pending before this court upon appeal by the defendant from a judgment rendered in the circuit court of the city of St. Louis, convicting him of the offense of fraudulently registering as a voter of the Tenth election precinct of the Fifteenth ward of the city of St. Louis, under a name not his own. On the 21st day of September, 1908, the grand jury of the city of St. Louis returned an indictment, charging the defendant with the offense as above indicated. The sufficiency of the indictment is not challenged. Hence there is no necessity for burdening this opinion with a reproduction of it. The defendant was duly arraigned and entered his plea of not guilty to the charge contained in the indictment, and the case proceeded to trial before a jury, which had been regularly impaneled.

The testimony developed upon the trial of this case tended to prove, substantially, the following state of facts: That there was a general registration of the voters and electors in the city of St. Louis on the 14th, 15th, 16th, and 17th days of September, 1908, and that the judges and clerks of such registration, after being duly sworn and qualified, proceeded in the discharge of their respective duties. All persons desiring to register as qualified voters were required to state, under oath, their place of residence, name, date of birth, age, occupation, and certain other matters touching their qualifications and right to register, and if their answers were satisfactory they were then permitted to sign their names on the register as qualified voters. Upon the 15th day of September, defendant appeared before the judges and clerks of registration of the said Tenth election precinct of the Fifteenth ward and requested that he be permitted to register. After being sworn to truthfully answer questions touching his right to register, he stated, among other things, that his name was Joseph Walters, his place of residence 2013 Olive street, which is in the Tenth precinct of the Fifteenth ward. These answers, together with others, were written by the clerk in the record kept for that purpose, and at the proper place in said books, and in the column for qualified voters, defendant signed his name, "Joseph Walters." His name, age, and residence, as given by him, were then entered on the registration books. When a patrolman, in accordance with directions from one of the judges, started to strike the defendant's name from the registration record, defendant tried to make his escape, and was apprehended only when he was shot in the leg. After his arrest, and on the 19th day of September, defendant signed a recognizance in the name of "Joseph Walters" and again gave his address as 2013 Olive street. The state's evidence also tended to prove that no one of the name of Joseph Walters had ever resided at 2013 Olive street, that defendant's name is Harry Exnicious, and at the time of his offense, and prior thereto, he resided at 821 or 823 Carr street, which was not in the Tenth precinct of said Fifteenth ward. At the close of the state's evidence, the defendant demurred thereto, but offered no evidence in his defense. At the close of the evidence, the court fully instructed the jury upon the charge embraced in the indictment, and upon the credibility of witnesses, and the necessity of establishing the guilt of the defendant beyond a reasonable doubt. The cause was then submitted to the jury, and they returned their verdict finding the defendant guilty as charged, and assessed his punishment at imprisonment in the penitentiary for a term of five years. Timely motions for a new trial and in arrest of judgment were filed and by the court taken up and overruled. Sentence and judgment was entered of record in accordance with the verdict, and from this...