State v. Judge
| Decision Date | 25 June 1926 |
| Docket Number | No. 26650.,26650. |
| Citation | 285 S.W. 718 |
| Parties | STATE v. JUDGE. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.
Joseph Judge was convicted of fraudulently voting in a primary election in a county of which he was not a qualified voter, and he appeals. Affirmed.
E. McD. Stevens, of Clayton, for appellant.
North T. Gentry, Atty. Gen., Harry T. Thomas, and A. B. Lovan, Sp. Asst. Atty. Gen., for the State.
Statement.
On October 23, 1922, the grand jury of St. Louis county, Mo., returned into the circuit court of said county an indictment, charging that on August 1, 1922, the defendant unlawfully, knowingly, fraudulently, and feloniously did cast a ballot, and voted in the primary election held in said county on above date, he not being a qualified voter of said county, and not having resided therein 60 days prior to said August 1, 1922, etc. Defendant was formally arraigned, and entered a plea of not guilty. On June 1, 1923, a jury before whom the case was tried returned into open court the following verdict:
Immediately following the entry of the court record setting out said verdict the following appeared:
"And thereupon the court doth defer sentence herein." * * *
On June 5, 1923, defendant, as shown by the record, filed his motion for a new trial, which was overruled on February 4, 1924. Thereafter, on May 3, 1924, an appeal was allowed defendant to this court. The record recites that on August 8, 1924, appellant filed in said court his bill of exceptions.
On December 4, 1924, the record discloses that the mandate of this court was filed in the circuit court aforesaid as follows:
The circuit clerk made a return to this court reciting that the record here was correct, which disclosed on its face that no judgment was entered in the circuit court on the verdict of the jury, nor was defendant sentenced pursuant to said verdict. On the clerk's return, supra, the Attorney General filed a motion to dismiss the appeal and to remand the cause to the circuit court in order that a proper judgment should be entered in the case. On December 31, 1924, this court dismissed the appeal on the ground that appellant had not perfected his appeal within the time required by law. Thereafter the mandate of this court was transmitted to the circuit court, and the latter, on January 8, 1925, entered judgment in due form, and pronounced sentence on defendant in conformity to the verdict aforesaid. A new affidavit for appeal was filed in the circuit court on last-named date, and an appeal was granted to this court. A new transcript was filed herein on September 22, 1925, which contains the evidence adduced at the trial, including the instructions, rulings of the court, etc.
There was substantial evidence offered on the part of the state tending to prove the following facts: That on August 1, 1922, a primary election was held in the state of Missouri, in St. Louis county, Mo., and at the polling place of Home Heights in said county, for the purpose of making nominations of candidates for certain public offices, to wit, Senator of United States from Missouri, member of Congress from the Tenth congressional district of the state, state, county, and township officers, etc.; that the defendant, Joseph Judge, appeared at said regular polling place in Home Heights aforesaid, and for a time acted as receiving judge at said election; that defendant received from Oliverson, clerk of said election, a ballot; that the defendant's name was given to the clerk and entered on line 12 of the book; that, after getting said ballot, he was given a number on line 12; that defendant was in charge of the ballot box where the ballots were deposited, after they had been prepared by the voter; that the right of defendant to vote at said election at above precinct was challenged; that he left there, ceased to act as judge, and did not return.
Thomas D. Moore testified that he had known defendant for about the last three years; that he knew defendant on or about August 1, 1922; that defendant lived at 1482a Goodfellow avenue in the city of St. Louis, Mo.; that his wife and one child lived with him; that Moore asked defendant what right he had to act as judge there, when he was a resident of the city of St. Louis, Mo.; that defendant said he resided in the county; that Moore asked him when he moved to the county, and told him that his family lived at 1482a Goodfellow avenue, St. Louis, Mo.; that Judge Underwood then asked if defendant was willing to make an affidavit that he resided in the county, and defendant said he did not have to; that one of the judges told defendant to stand aside; that defendant left, and another judge took his place; that he had seen defendant almost daily prior to August 1, 1922.
Without undertaking to set out the evidence in detail, we think the state produced substantial evidence tending to show that defendant voted at the above election on August 1, 1922, in St. Louis county, and that at the time of doing so was a resident of the city of St. Louis, Mo.
The instructions and rulings of the court will be considered in the opinion.
Opinion.I. Counsel for respondent have raised the question as to whether there is anything for consideration here, except the record proper. We have never come in contact with a more unsatisfactory record than that presented in this case. As a part of the record proper, a plea in abatement, motion for a new trial, the instructions and alleged exceptions are set out at length when they properly belonged in the bill of exceptions. We have endeavored for many years, in numerous decisions, to point out to counsel the difference between the requirements of the record proper and the bill of exceptions. The information is a part of the record proper, and is correctly set out at length. The record proper, although containing matters which have no place therein, shows that a trial was had before a jury; that the latter returned a verdict, which is also a part of the record proper; that a motion for a new trial was filed and overruled; that judgment was rendered and sentence pronounced in conformity with said verdict; that an appeal was allowed to this court; and that a bill of exceptions was filed herein.
Turning to the bill of exceptions, we find that it contains the evidence given at the trial, with the rulings of the court in respect to same; that it contains the instructions, verdict, motion for a new trial, the action of the court in overruling same, the granting of an appeal, and the filing of a bill of exceptions. We also find a certificate of the clerk as to the correctness of said entries, etc.
Leaving out of consideration the irregularities heretofore mentioned, we hold that the record proper and bill of exceptions before us are sufficiently presented to warrant us in passing upon the merits of the case.
II. The indictment is sufficient as to both form and substance. State v. Pearson, 288 Mo. loc. cit. 106, 231 S. W. 595; section 4748, R. S. 1919; section 4853, R. S. 1919.
III. The jury found defendant guilty as charged in the indictment, assessed his punishment at one year's imprisonment in the penitentiary, and imposed a fine of $1,000. The verdict is supported by the evidence, and is within the law. Section 3209, R. S. 1919; section 4748, R. S. 1919; section 4853, R. S. 1919.
IV. The defendant was not sworn as a witness, and demurred to the state's evidence at the conclusion of same. The demurrer was overruled, and no evidence was offered by defendant. Upon a careful examination of the testimony, we are of the opinion that the state produced substantial evidence tending to show that on August 1, 1922, and for several years prior thereto, the defendant was a resident and citizen of the city of St. Louis, Mo.; that, with full knowledge of said fact, he voted at the election held in St. Louis county, Mo., knowing at the time he was not a resident of said county, and was not entitled to vote at said election. We accordingly hold that the court committed no error in overruling the demurrer to the evidence.
V. The court gave, over the objection of defendant, instructions 1 and 3, which...
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