State v. Hardelein

• Decision Date: 27 October 1902
• Citation: 70 S.W. 130,169 Mo. 579
• Court: Missouri Supreme Court
• Parties: STATE v. HARDELEIN.

70 S.W. 130

169 Mo. 579

STATE v. HARDELEIN.

Supreme Court of Missouri, Division No. 2.

October 27, 1902.

ELECTIONS — FRAUDULENTLY PERSONATING ELECTOR — EVIDENCE — PRIMA FACIE CASE — QUESTION FOR JURY.

1. Const. art. 8, § 2, and Rev. St. 1899, § 7232, provide that every male person of foreign birth, who may have declared his intention to become a citizen of the United States according to law not less than 1 year nor more than 5 years before he offer to vote, who is over the age of 21 years, shall be entitled to vote. Section 7261 makes it an offense for one to falsely personate an elector, and vote or attempt to vote in his name. On a prosecution under section 7261 it was shown that defendant attempted to vote in the name of M., who was an adult, and a native of Germany, and the register of voters for the ward in which M. resided showed that he had taken out naturalization papers. Held, that the state had made out a prima facie case, rendering the case one for the jury.

2. The jury should have been instructed that the burden of proof was on the state, and that accused was to be presumed innocent unless the whole evidence in the case satisfied them of guilt.

3. It was error to submit to the jury the question of law whether the one in whose name accused voted was an "elector" within the statute and the constitutional provision.

4. Rev. St. 1899, § 7261, relative to elections in cities of 300,000 inhabitants or over, makes it an offense for one to falsely personate an elector, and vote or attempt to vote in his name, and fixes the punishment at imprisonment for not less than two years. By section 7178 a similar offense, committed anywhere in the state, is punished at not less than two years or more than five. Held, that on appeal from a judgment sentencing accused to imprisonment for two years on a prosecution under section 7261, the question whether the act is unconstitutional, as special legislation, under Const. art. 4, §§ 53, 54, as imposing a greater penalty for a violation in St. Louis than elsewhere, would not be considered, as the conviction could be sustained under section 7178.

Appeal from St. Louis circuit court; H. D. Wood, Judge.

John Hardelein was convicted of fraudulently personating an elector, and he appeals. Reversed.

The defendant was convicted in the circuit court of the city of St. Louis, and his punishment fixed at two years' imprisonment in the penitentiary, under an indictment charging him with having feloniously, falsely, and fraudulently personated Wilhelm Mueller, an elector, and feloniously and fraudulently attempted to vote in and on the name of Wilhelm Mueller, an elector, at the election held on April 2, 1901, in said city, for certain municipal officers of said city. Wilhelm Mueller was born in Germany, and came to this country when he was 11 years of age. He registered from No. 1618 South Broadway, in the Fourth precinct of the Seventh ward of the city of St. Louis. Defendant, on April 2, 1901, did not live at 1618 South Broadway, St. Louis. On April 2, 1901, defendant went to the polling place No. 1614 South Broadway, in the Fourth precinct of the Seventh ward of the city of St. Louis, Mo., told the judges and clerks of election that his name was William Mueller, and that he resided at No. 1618 South Broadway, and received from one of the judges an official ballot, and went into one of the booths in the polling place, prepared his ballot, and handed it to one of the judges of election. His right to vote was questioned by one of the clerks of election, and he was requested to write his name, and he wrote it "William Miller," and he said he was born in St. Louis. The court gave the following instructions: "By the indictment in this case, which was filed May 23, 1901, the defendant, John Hardelein, is charged with falsely personating the name of an elector, and fraudulently attempting to vote in the name of such elector, at an election held in the city of St. Louis, Missouri, for certain municipal officers, on the 2d day of April, 1901. He pleads not guilty, and upon the question of his guilt or innocence the court instructs you as follows: (1) By the statutes of this state any person who shall falsely personate an elector, and attempt or offer to vote in and upon the name of such elector, is guilty of an offense against the election laws of this state. Therefore, if you find and believe from the evidence in this case at a general election held in the city of St. Louis, Missouri, on April 2, 1901, for certain municipal officers of said city, one Wilhelm Mueller was then and there a duly registered voter and elector at the Fourth precinct of the Seventh ward of said city, and that then and there, on said 2d day of April, 1901, at the city of St. Louis, Missouri, the defendant, John Hardelein, did appear at the polling precinct aforesaid, before the duly selected and qualified judges and clerks of election within and for said election precinct and ward, and, knowing himself not to be the said Wilhelm Mueller, did then and there falsely and fraudulently impersonate the said Wilhelm Mueller, and did then and there falsely and fraudulently attempt to vote in and upon the name of said Wilhelm Mueller, then you will find the defendant guilty as charged in the indictment, and assess his punishment at...