State v. Keating

• Decision Date: 23 November 1909
• Parties: STATE v. KEATING.
• Court: Missouri Supreme Court

122 S.W. 699

223 Mo. 86

STATE v. KEATING.

Supreme Court of Missouri, Division No. 2.

November 23, 1909.

1. ELECTIONS (§ 328) — FRAUDULENT REGISTRATION — OFFENSES — INFORMATION.

An information charging one with fraudulently registering in an election precinct of which he was not a resident need not allege that he was sworn when he made application for registering and before he answered the necessary questions.

2. CRIMINAL LAW (§ 165) — "FORMER JEOPARDY."

One is in legal jeopardy when he is put on trial before a court of competent jurisdiction on an indictment sufficient to sustain a conviction, and a jury has been empaneled and sworn, unless the jury is discharged with the consent of accused, or when, after verdict of guilty, the same has been set aside on accused's motion for a new trial or the judgment arrested.

3. CRIMINAL LAW (§ 170) — FORMER JEOPARDY.

Where accused was convicted on a second count of the information, and the court, on appeal, determined that the information was insufficient as to both counts, accused had not been put in jeopardy by reason of the conviction on the second count and the acquittal by inference on the first count.

4. CRIMINAL LAW (§ 1167) — APPEAL — HARMLESS ERROR — MISJOINDER OF COUNTS.

Where the court withdrew from the jury the first count of the information and submitted the case on the second count only, a misjoinder of the counts was not prejudicial to accused.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Edward J. Keating was convicted of fraudulently registering in an election precinct, and he appeals. Affirmed.

See 202 Mo. 197, 100 S. W. 648.

Zachriyz & Bass, for appellant. E. W. Major, Atty. Gen., and Chas. G. Revelle, Asst. Atty. Gen., for the State.

BURGESS, J.

On September 19, 1905, the circuit attorney of St. Louis filed in the circuit court an information in two counts, attempting to charge the defendant in the first count with unlawfully registering in two separate election precincts, to wit, in the Fourth and Ninth precincts of the Second ward, and in the second count attempting to charge him with the offense of fraudulently registering in an election precinct, to wit, the Ninth precinct of the Second ward, not having a lawful right to register therein; he not being a resident thereof. He was convicted upon the second count, and from the judgment entered in accordance with the verdict he appealed to this court, where the information was held insufficient, and judgment reversed and the cause remanded. State v. Keating, 202 Mo. 197, 100 S. W. 648. Thereupon, on the 6th day of January, 1908, the circuit attorney filed an amended information duly verified in two counts, charging in the first count the offense that he attempted to charge in the first count in the original information, and on which there had been no finding by the jury on the first trial, and in the second count charging the offense he attempted to charge in the second count of the original information. To this information defendant filed his plea in bar, alleging that, although the original information contained two counts, they covered but one and the same transaction and were supported by one and the same evidence, and the silence of the verdict as to the first count at the former trial amounted to a verdict of not guilty on that count, and therefore operated as an acquittal on both counts of the amended information. To this plea the state entered a general denial, and the defendant thereupon demanded that the issues thus presented be tried separate and apart from the general issue tendered by the plea of not guilty. This the court refused to do, and defendant being arraigned, and pleading not guilty, the cause went to trial, and at the close of all the evidence the court sustained the plea as to the first count, and withdrew same from the consideration of the jury. On the second count the defendant was convicted, and his punishment assessed at three years' imprisonment in the penitentiary. After unsuccessful motions for a new trial and in arrest of judgment, he was sentenced on the verdict, and has appealed to this court.

The testimony on the part of the state tended to prove that, in accordance with the laws of this state, there was a general registration of voters and electors in the city of St. Louis on the 19th, 20th, 21st, and 22d days of September, 1904, and that the judges and clerks of registration, after having been properly appointed, were duly sworn and qualified, and during those days discharged their respective duties as such judges and clerks of registration. All persons applying for registration were required to state under oath their place of residence, name, date of birth, age, and occupation, duration of residence in the precinct, city, and state, and certain other matters touching their qualification and right to register as voters. These questions were propounded by one of the judges, and the answers were recorded in books prepared and kept for that purpose, and, if the answers were satisfactory to the judges, the applicant was declared a qualified voter by entering the word "Yes" opposite his name in the column, headed by the words "Qualified Voters," and the applicant was then permitted to sign his name on the register in the proper place as a qualified voter. On the 19th of September, 1904, defendant appeared before the judges and clerks of registration of the...