State v. Harlston
| Decision Date | 11 April 1978 |
| Docket Number | No. 38023,38023 |
| Citation | 565 S.W.2d 773 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Melvin HARLSTON, Defendant-Appellant. . Louis District,Division Three |
| Court | Missouri Court of Appeals |
Louis Gilden, St. Louis, for defendant-appellant.
John D. Ashcroft, Atty. Gen., Preston Dean, Robert M. Sommers, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Henry J. Fredericks, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
This is an appeal from a conviction in the Circuit Court of the City of St. Louis in a jury tried case wherein the appellant, Melvin Harlston, was found guilty of violating § 121.270 subsection 2 V.A.M.S. Tampering with a Voting Machine and was sentenced to be confined in the custody of the Missouri Department of Corrections for a period of five years. We affirm.
The evidence offered by the state during the jury trial supports a finding that Mr. Harlston was a candidate for the office of Constable of the City of St. Louis from the First District on the Democratic ticket at the Primary Election conducted on August 6, 1974. Voting machines were being used in that Primary Election in polling places for Ward 3, Precincts 14 and 6 in the City of St. Louis. The polling place for Ward 3, Precinct 14 was situated at 4105 West Florissant and the polling place for Precinct 6, at 4242 Grove Avenue, the Eliot School.
In the polling place on West Florissant there were two voting machines for use in the Primary Election; one of these was machine number 24026, the voting machine involved in this prosecution.
There was evidence relative to the operation of these voting machines, but it is unnecessary for the purposes of this decision to set it out in detail here. There was, also, evidence from which the jury could find that some short time prior to 9 a. m. on the morning of August 6, 1974, a lady came into the polling place on West Florissant, requested a Republican ballot, and entered the voting booth. She had a change of mind with respect to the party ballot and requested that instead of a Republican ballot she be furnished with a Democratic ballot. In attempting to make the change the voting machine was jammed. According to the evidence nine votes were on the machine at the time this occurred.
After the voting machine jammed one of the election judges, a Mr. Jackson, left the polling place and shortly thereafter Mr. Harlston entered and advised another election judge, Mrs. Taylor, that he knew how to fix the jammed voting machine. Mrs. Taylor arose from the table where she and the other election officials were sitting, and went to the jammed voting machine. Mr. Harlston went to the front of the voting machine and inside the curtains while Mrs. Taylor remained on the side of the voting machine. Mr. Harlston then instructed Mrs. Taylor to "pull the knob." She understood him to mean the "operator's knob," which she then pulled out. The curtain to the voting booth closed and opened, and after the curtain opened again Mr. Harlston asked her a second time to pull the knob out. She did so about 12 or 13 times. During this period no one other than Mr. Harlston and Mrs. Taylor touched this voting machine. Each time she pulled the knob out she could hear the clicking as the curtains to the voting booth opened and closed. The public counter on this voting machine which records the number of votes cast on the machine showed that prior to Mr. Harlston's arrival nine voters had cast their votes on voting machine No. 24026 and when he left the polling place this same public counter showed twenty-two votes had been cast on the same machine.
Nathaniel Lee Shipp, a member of the Board of Election Commissioners, arrived at the West Florissant polling place and observed Mr. Harlston coming out of the voting booth. Mr. Shipp recognized Mr. Harlston as a candidate and told him that he was in violation of "State Statute 118," which prohibits electioneering at a polling place, and suggested that Mr. Harlston leave the polling place. Mr. Harlston departed. Mr. Shipp then ordered voting machine No. 24026 impounded and no one else was allowed to cast their vote on it. According to the record of this voting machine Mr. Harlston received seventeen votes. The state's evidence was that it would be impossible to get 13 Democratic votes on the voting machine if the "Republican" knob was out.
On appeal the appellant, as Mr. Harlston shall be hereinafter identified, raises six Points for review. Points I, II and VI are directed at the sufficiency of the Indictment; Point III, to the propriety of a verdict directing instruction and a verdict form; Point IV, to the admission into evidence proof of a separate and distinct crime, i. e. tampering with a voting machine at a polling place on Grove Avenue; and Point V to excluding from evidence appellant's proffered testimony to prove that the additional votes shown as cast on the voting machine might have come from sources other than those shown by the state's evidence.
For reasons hereinafter stated we find no merit to any of these contentions and we therefore affirm.
The Indictment upon which this prosecution was commenced reads as follows:
That, MELVIN HARLSTON, on the 6th day of August, one thousand nine hundred and seventy-four, at the City of St. Louis aforesaid, did willfully, unlawfully and feloniously tamper with a voting machine in use at 4105 West Florissant, a duly designated polling place in the City of St. Louis, duly installed therein by the Board of Election Commissioners, of the City of St. Louis, for the purpose of recording votes cast in the Primary Election held on the 6th day of August, 1974, with the felonious intent to change or destroy the record of votes thereon; contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State.
THE GRAND JURORS OF THE STATE OF MISSOURI, within and for the body of the City of St. Louis, now here in Court, duly impaneled, sworn and charged, upon their oath present further as follows:
That MELVIN HARLSTON, on the 6th day of August, 1974, at the City of St. Louis, State of Missouri, did willfully, unlawfully and feloniously tamper with voting machines in use at 4242 Grove Avenue, a duly designated polling place in the City of St. Louis, duly installed therein by the Board of Election Commissioners of the City of St. Louis for the purpose of recording votes cast in the Primary Election held on the 6th day of August, 1974, with the felonious intent to change or destroy the records of votes thereon; contrary to the form of the Statute in such case made and provied (sic), and against the peace and dignity of the State.' "
This Indictment was filed on September 17, 1974, in the office of the Clerk of the Circuit Court for Criminal Causes of the City of St. Louis. On October 2, 1974, appellant was arraigned and entered a plea of not guilty. Thereafter, on May 6, 1975, appellant filed a Motion for a Bill of Particulars as follows:
" 'MOTION FOR A BILL OF
'Comes now Melvin Harlston, the defendant, and states that he has been indicted by the Grand Jury of the City of St. Louis, State of Missouri, for two counts of tampering with a voting machine.
'He states that said indictment is vague and nebulous in that it does not properly apprise him of the facts of the offense for which he must defend himself.
'WHEREFORE, defendant prays that this Court make and enter an order directing the State of Missouri to file a Bill of Particulars which states (1) the manner in which he is alleged to willfully, unlawfully and feloniously tamper with the voting machine specified in Count I of the indictment and (2) the manner in which he is alleged to willfully, unlawfully and feloniously tamper with the voting machine specified in Count II of the indictment.' "
The trial court sustained this Motion, and on May 14, 1975, the state filed a Bill of Particulars reading as follows:
" 'PLAINTIFF'S BILL OF
'Comes now the State of Missouri and files a Bill of Particulars in the above-entitled cause setting forth the manner in which the defendant is alleged to have wilfully, unlawfully and feloniously tampered with the voting machines specified in Counts I and II of this indictment, to-wit:
Appellant, in the trial court, did not raise those grounds for error covered in Points Relied On I, II and VI, and did not obtain a ruling thereon prior to presenting them in his brief in this court. A reviewing court is, nevertheless, required by Rule 28.02 V.A.M.R. to consider allegations of error respecting the sufficiency of the information or indictment, verdict, judgment and sentence although they were not raised in the trial court or preserved for review.
Reduced to its simplest terms, appellant's contention raised by Point I is that the indictment on which he was brought to trial is fatally defective in that it improperly alleges two crimes in but a single Count.
While we would not recommend this form of indictment and are convinced that the better practice is to separately identify each Count of an indictment or information by insertion of the identifying number of the Count, i. e. Count I, Count II, etc., in the pleading so there can be no question where one Count ends and another commences, we find no requirement that this...
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