State v. Fawcett

• Decision Date: 19 May 1908
• Citation: 111 S.W. 562,212 Mo. 729
• Parties: STATE v. FAWCETT
• Court: Missouri Supreme Court

111 S.W. 562

212 Mo. 729

STATE v. FAWCETT

Supreme Court of Missouri, Division No. 2.

May 19, 1908.

Rehearing Denied June 16, 1908.

1. CRIMINAL LAW—APPEAL—PRESERVATION OF GROUNDS OF REVIEW — MOTION FOR NEW TRIAL AND IN ARREST.

Where the record in a criminal case shows that there was neither a motion for a new trial or in arrest of judgment filed during the term at which it was tried, there is nothing presented for review except the record proper.

2. SAME — MOTION FOR NEW TRIAL — FILING OUT OF TIME.

The court has no authority at a subsequent term to pass upon motions for a new trial and in arrest of judgment filed after the adjournment of the term at which the cause was tried.

Appeal from St. Louis Circuit Court; George H. Williams, Judge.

James Fawcett, alias Bud Fawcett, was convicted of feloniously impersonating another person and voting, and he appeals. Affirmed.

This cause is brought to this court by appeal on the part of the defendant from a judgment in the circuit court of the city of St. Louis convicting him of the offense of feloniously impersonating another person and voting at an election held in the city of St. Louis. The grand jury impaneled in the circuit court of the city of St. Louis at the April term, 1907, of said court returned into court on the 10th day of May, 1907, an indictment charging the defendant with the offense of feloniously impersonating another person and voting at a general election in one of the voting precincts of the city of St. Louis. Before proceeding to trial, the defendant filed a motion to quash the indictment, which was by the court overruled. The trial of this cause was commenced on May 29, 1907, and upon said trial it was admitted by the defendant that on the 2d day of April, 1907, in the city of St. Louis, in the state of Missouri, and in each ward and election precinct of said city, a general election was held pursuant to the Constitution and laws of the state of Missouri for the choice and election of certain city officers of said city, and that the voting place of the Sixth election precinct of the Fourth Ward was at No. 402 North Eleventh street, and that James C. Sleeper, M. Siebalski, J. E. McLaughlin, and Harry Vinton were the duly appointed, qualified, and acting judges, and John C. Palamaris and J. F. Buttrey were the duly appointed, qualified, and acting clerks of election for said precinct on said election day at said polling place, all as charged in the indictment. The state introduced evidence tending to prove that one Fred Fink, in February, 1907, and for several years prior thereto, resided at 1122 Locust street in said election precinct, and that his name on said election day appeared on the official registers and books of registration of said election precinct, and purported to be the name of a duly registered voter and elector of said precinct, but that said Fred Fink, about the last of February, 1907, moved from said No. 1122 Locust street. No witness testified to having seen him after the last week in February, 1907. It was shown by the poll books, however, that the name Fred Fink was twice voted at said polling place in said precinct in said election. At about 9 o'clock on said election day defendant appeared at said polling place before said election judges and clerks, gave his name as Fred Fink, and his residence at No. 1122 Locust street, which residence number was the same as appeared on the official registration books as the residence number of Fred Fink. He was asked by Mr. Sleeper, a judge of election having in charge the registration books containing the name and description of legal voters of said precinct, to sign his name for the purpose of comparing his signature with Fred Fink's signature on the registration book, whereupon the other judges said his signature was not necessary, and he refused to sign his name. Defendant received official ballots from the election judges, retired to a voter's booth, prepared his ballot and gave it to one of the receiving judges. To the receiving judges he again stated that his name was Fred Fink. A receiving judge inquired of the clerks of the election Fred Fink's number, which was given as "32," and the defendant's ballot was numbered "32" and deposited in the ballot box, whereupon defendant went out of the polling place. These facts were testified to, in the main, by police officers Kohrs and Lane, who knew defendant, and were in the polling place at the time, and by Mr. Sleeper, judge, and Mr. Palamaris, clerk. Officer Kohrs followed defendant to the street and asked him what he was doing, and he replied, "You know," whereupon the officer told him that did not go, and arrested him. Defendant then stated that he had been voting in his own name. About one hour later, in a conversation with officer Joyce, defendant said he had voted at said polling place in said precinct, but in his own name, Fawcett. It also appeared in evidence that later in the day at the said polling place in said election another ballot, numbered "64," was cast in the name of Fred Fink, but no witness testified that he knew who cast it, or that it was Fred Fink who cast it. The name "James Fawcett" appeared on said registration books as a voter, but no voter giving that name voted that day. At the close of the state's case defendant moved the court to direct the jury that under the law, indictment and evidence, they must acquit the defendant, which motion was by the court overruled. On the part of the defendant, James E. McLaughlin, election judge, and J. F. Buttrey, election clerk, testified that defendant did not vote at all at said election, that they saw him in said polling place, but he passed out without voting. Charles E. Baird, a challenger, testified that defendant gave his name to Mr. Sleeper as Fawcett, but he did not know whether he voted. The defendant did not testify in his own behalf upon the trial of this cause.

At the close of the evidence the court instructed the jury upon the law of the case...