State v. Flynn

• Decision Date: 02 May 1905
• Citation: 119 Mo. App. 712,94 S.W. 543
• Parties: STATE v. FLYNN.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

94 S.W. 543

119 Mo. App. 712

STATE v. FLYNN.^*

St. Louis Court of Appeals. Missouri.

May 2, 1905.

Rehearing Denied May 16, 1905.

1. MUNICIPAL CORPORATIONS—POLICE OFFICERS — ELECTION OFFENSES—WILLFUL NEGLECT OF DUTY—EVIDENCE.

Where a police officer was assigned for duty at a primary polling place, and there was evidence that while he was present qualified voters, waiting in line to cast their ballots, were interfered with and obstructed in that duty, were driven out of line, and others put in their places, and were subject to violent, if not felonious, assaults, and such officer witnessed such outrages without arresting the perpetrators or in any way attempting to keep the peace or assert his authority as an officer, the evidence was sufficient to sustain a conviction for willful neglect of duty, prohibited by Rev. St. 1899, § 2105.

2. SAME — DUTY TO ARREST WITHOUT WARRANT.

Rev. St. 1899, §§ 6212, 6213, require city police boards to preserve the public peace, prevent crime, arrest offenders, and preserve order at every public election and all town meetings and places, and to do so the board is authorized to employ a roll of permanent police officers. Section 6232 also provides that every police officer in the city of St. Louis is a state officer. Held, that where a police officer in the city of St. Louis was detailed for duty at a polling place, and voters were obstructed, assaulted, and interfered with in his presence and view, it was his duty to arrest the persons causing such disturbance without warrant.

3. OFFICERS—INDICTMENT—CORRUPTNESS.

An indictment against a police officer for willful neglect of duty, charging that he witnessed repeated infractions of the law without attempting to make an arrest, was not defective for failure to allege that he acted corruptly.

4. INDICTMENT — JOINDER OF OFFENSES—DUPLICITY.

Where an indictment against a police officer for willful neglect of duty charged that he was detailed for duty at a polling place, and stood by and saw voters obstructed, assaulted, etc., without going to their assistance, and detailed the manner in which the voters were molested, naming them, it charged but a single offense, and was not objectionable for duplicity.

5. CRIMINAL LAW—EVIDENCE—JUDICIAL NOTICE—POLITICAL HISTORY.

In a prosecution of a police officer for neglect of duty in permitting voters at a Democratic primary election to be obstructed, judicial notice will be taken that the Democratic Party cast more than 10,000 votes for Governor in Missouri at the election in 1902, and was therefore a political party within the primary election law (Act March 13, 1901, p. 149, § 2), defining as political parties entitled to hold such elections in cities having 300,000 inhabitants or more to be those political organizations which cast 10,000 or more votes for Governor or Supreme Judge at the last election.

Appeal from St. Louis Court of Criminal Correction: Hiram N. Moore, Judge.

Tim Flynn was convicted of neglect of official duty as a policeman, and he appeals. Reversed.

The defendant, who was heretofore a policeman, and on the police force of the city of St. Louis, appeals from a conviction for neglect of official duty. On March 12, 1905, a primary election to choose delegates to the state convention of the Democratic Party of the state of Missouri was held in the city of St. Louis, and, among other places in said city, at the First Voting Precinct in the Twenty-Eighth Ward. The defendant, Flynn, had been detailed and assigned to perform the duties of a police officer at the polling place of said precinct while the primary election was in progress. The indictment charges, in substance, that it was Flynn's duty to preserve the peace at said primary election, and prevent any one from obstructing voters who were seeking to exercise the right of voting; that then and there, in the immediate presence and view of said Flynn, John Lavin and John McAuliffe and other persons, whose names were to the grand jury unknown, unlawfully interfered with and obstructed certain named citizens who were then and there voters, and were entitled to vote at said election, and who were lawfully exercising such right. The indictment names 24 citizens and voters who were obstructed and interfered with (to wit, J. D. P. Francis, J. R. Francis, Jr., Edward Cunningham, Jr., and others, and states that they were all qualified voters in the ward, and had duly registered as such; that the interference with and obstruction of said voters by Lavin, McAuliffe, and other persons unknown were committed by assaulting the said qualified voters, intimidating them, pushing them from the line and position of voters at the polling place, and placing other persons in front and between said persons for the purpose of preventing said voters from entering the polling place and casting their votes. The indictment further charged that Flynn, while acting as a police officer, and witnessing "said unlawful conduct and interference with and obstruction of the aforesaid qualified voters by the aforesaid John Lavin, John McAuliffe, and others, did then and there unlawfully and willfully permit and neglect to prevent the aforesaid unlawful interference with and the obstruction of the qualified voters aforesaid, in the manner aforesaid, by the said John Lavin and John McAuliffe and others; he, the said Tim Flynn, as such police officer aforesaid, having then and there the power, authority, and means at his hands to prevent the aforesaid unlawful interference with and obstruction of the voters aforesaid, contrary to the statute in such case made and provided, and against the peace and dignity of the state." The indictment was demurred to on the ground that the legislative act of March 13, 1901, entitled "Primary Election Laws," was unconstitutional, and, as the indictment was founded on said act, no offense was charged; that the indictment was duplicitous, multifarious, and combined two or more offenses in the same count. The demurrer was overruled. The case went to trial before a jury. A verdict of guilty was returned against the defendant, and his punishment assessed at six months in jail and a fine of $250. After the necessary motions an appeal was taken to this court.

The polling place was on a vacant lot at the southwest corner of Taylor and Delmar avenues, on the west side of Taylor, and about 100 feet south of Delmar. The disturbances out of which the indictment of the defendant grew occurred toward the close of the afternoon, and between the hours of 5 and 7 o'clock. At that time the voters waiting for their turns and an opportunity to get into the polling booth constituted a line about 100 feet long, stretching north from the door of the booth toward Delmar avenue. Each intending voter occupied about a foot of space; so there were about 100 voters in line. The testimony for the state goes to show that a band of ruffians, who did not belong in the ward, and were not entitled to vote at that polling place, would shove or drag the voters from their positions in the line now and then, and assault and beat them. Several citizens were badly hurt by the assaults, and one, at least, Mr. Willard R. Hall, was beaten into insensibility. D. R. Francis, Jr., just as he was about to enter the booth, was pushed out of the line, and a fight ensued. Said Francis and his brother finally succeeded in entering the booth and voting. Joseph Kirkbride, who was standing in line, was knocked down, and then stepped on and kicked. Theodore Bland, after waiting in the line from 5:30 o'clock to 6:15, within 30 or 40 feet of the booth, was pulled out of the line, jerked, struck two or three times, and then thrown into the gutter and kicked. Mr. Willard R. Hall was thrown out of the line two or three times, but got back again; was finally dragged out, struck on the nose, kicked on the shins, and left unconscious. There was testimony that when the waiting voters were pushed out of line others would be substituted by the assaulting gang, the purpose being to control the vote. There was much testimony that the defendant, Flynn, was standing by the line of voters, and witnessed these assaults and outrages, but did nothing to quell the disturbances or protect the rights of the citizens, though he was appealed to for protection time and again. Witnesses swore he threatened to arrest the citizens who asked protection, instead of heeding their requests.

For the defendant the testimony went to show that some of the voters in the line created the disturbances themselves, and were to blame for the affrays; that Flynn did not witness any of the affrays, and was not called on to make any arrests or for protection; that he did arrest one person, and took him away; that he rescued D. R. Francis, Jr., or assisted him when he was in a fight with four or five men; that MacCormack, who testified to appealing to Flynn for protection, was really taunting him (Flynn), saying that Flynn was not there for the protection of the voters, but to aid the crowd of ruffians who were causing disturbances; that on account of these taunts Flynn threatened to arrest him. The testimony for the defense went to show that Flynn did his duty, and did not refuse to make arrests, or fail to protect quiet men who were molested. The defendant himself testified that he got to the polling place about 1 o'clock, before the polls were open. Other officers were there. A dispute arose over a fireman claiming to vote ahead of his time. This was settled without an affray by argument. That C. B. MacCormack kept saying to the crowd: "It's no use calling the police officer's attention. He won't look at it." That finally witness said to MacCormack that if he did not hush he would arrest him. Witness testified that he saw no assaults at any time, nor any one knocked down; that he saw one young man running away, and heard others yell, "Get him." Witness testified to going to the relief of Mr. Francis when he was...