State v. McGrath

• Decision Date: 26 May 1910
• Parties: STATE v. McGRATH.
• Court: Missouri Supreme Court

128 S.W. 966

228 Mo. 413

STATE v. McGRATH.

Supreme Court of Missouri, Division No. 2.

May 26, 1910.

1. INDICTMENT AND INFORMATION (§ 91)— ELECTIONS—FALSE RETURN—FELONIOUSLY.

An indictment against a primary election judge for making a false and fraudulent return in violation of Rev. St. 1899, §§ 2116, 2117 (Ann. St. 1906, pp. 1369, 1370), making such act a felony is insufficient, where it failed to allege that the false return was "feloniously" made.

2. INDICTMENT AND INFORMATION (§ 119)— ALLEGATIONS—SURPLUSAGE.

Where an indictment of an election judge for making a false return, after specifying certain ballots claimed to have been falsely counted, alleged that all of such ballots were wrongfully and falsely counted and wrongfully and falsely returned by the defendant and the other judges to the board of election commissioners as not having been cast for candidates for whom they were voted, and there being no allegation in the indictment of facts showing a return of the election to the election commissioners, or charge that the ballots alleged to have been wrongfully counted and falsely returned were feloniously illegal and fraudulently so counted, etc., such allegation could not be treated as surplusage.

3. ELECTIONS (§ 329)—FALSE RETURN—EVIDENCE.

In a prosecution of an election judge for false return, evidence, that witness thought he voted for a certain man but was not positive, and did not know because there were so many names on the ticket that he could not remember how he voted, was insufficient to overthrow the presumption in favor of correct action on the part of the judge.

4. ELECTIONS (§ 328)—INDICTMENT—ISSUES AND PROOF—SURPLUSAGE.

Where, in a prosecution of an election judge for a false return, the indictment not only charged that R.'s vote was cast for W., but also alleged that it was counted for C., proof that R.'s ballot was counted for C. was made an essential element of the offense, and such part of the allegation could not therefore be rejected as surplusage, but must have been proved as laid.

5. CRIMINAL LAW (§ 730)—MISCONDUCT OF COUNSEL—ARGUMENT.

Where, in a prosecution of an election judge for a false return, the prosecuting attorney in his closing address stated: "If they (accused and his counsel) have any doubts about what was in the ballots, let them open them up, let them bring them into court and place them in the hands of this jury, and let it be conclusively determined." Defendant's attorney objected, to which the court, addressing the prosecuting attorney, stated: "You know that nobody can bring those ballots here under the present condition of affairs, and you ought not to hold defendant responsible for what he cannot do. Proceed to the argument of the case under the instructions and evidence before the court." The prosecuting attorney then said: "It has been stated here that in this case an application for a writ of prohibition was filed." To which defendant's attorney replied: "This defendant had no more to do with it than your Honor." To which the court replied: "I have instructed the prosecuting attorney to proceed with the argument of the case on the evidence and instructions, and not outside matters." Held, that the prosecuting attorney's statement constituted misconduct both as a comment on defendant's failure to testify in violation of Rev. St. 1899, § 2638 (Ann. St. 1906, p. 1569), etc., and as without the record, and that the same was not cured by statements made by the court.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Thomas McGrath was convicted of making a false return as a judge of election, and he appeals. Reversed and remanded.

C. Orrick Bishop, for appellant. E. W. Major, Atty. Gen., and Chas. G. Revelle, Asst. Atty. Gen., for the State.

GANTT, P. J.

The defendant was indicted, with others, at the June term, 1908, of the Circuit Court of the City of St. Louis, with having, as one of the judges of the election at the "general primary" held in the city of St. Louis on August 4, 1908, made a false and fraudulent return. A demurrer to the indictment was overruled, and defendant was arraigned and pleaded not guilty. At the October term, he was tried and convicted, and his punishment assessed at four years in the penitentiary. His motions for new trial and in arrest were heard and overruled, and from the sentence imposed he has appealed to this court.

The offense for which the state sought a conviction is defined in sections 2116, 2117, Rev. St. 1899 (Ann. St. 1906, pp. 1369, 1370), in these words: "If any judge or clerk of any election authorized by law * * * shall in any manner illegally, wilfully, and fraudulently change or attempt to change or induce any other person to change the true and lawful result of any election, by any act to be done either before, at the time of, or after such election, by a wrong count of the ballots, by changing the true returns, or making a false return thereof, or by changing the figures of the returns after they are made up, either before or after the returns are duly made, or in any other manner, except in pursuance of law or the order of the court, * * * shall upon conviction be punished by imprisonment in the penitentiary not exceeding five years or by fine," etc.

The indictment, after stating there was a general primary held in St. Louis on the 4th day of August, 1908, for the choice of candidates for all political parties within the state of Missouri for state and county offices, and that defendant McGrath and William Gamache were selected, appointed, and qualified according to law to serve as judges for said primary for the second election precinct of the third ward, and certain others, as clerks, and all appeared at the polling place on said date and conducted said primary in said precinct, and that defendant and said other judge and clerks on said day illegally, fraudulently, and feloniously did change and attempt to change the true and lawful result of said general primary by making a wrong count and false return of the ballots then and there legally and lawfully cast at said general primary, and while the same was in progress for the various candidates for Governor, except Mr. Cowherd, and for various other candidates for state and city offices for both democratic and republican candidates, by then and there illegally, fraudulently, willfully, and wrongfully refusing and failing to count said ballots as aforesaid, legally and lawfully cast for said candidates, and by then and there illegally, willfully, fraudulently, and feloniously wrongfully counting and falsely returning the same in the following manner, to wit: By then and there counting and returning the ballots of (here follows the names of some 32 different electors, with the number of their residence, with the allegation that they were counted as voting for one candidate for a specified office, whereas they voted for other and different candidates), and then concludes: "And that all of said ballots so cast as aforesaid were wrongfully and falsely counted and wrongfully and falsely returned by the said Thomas McGrath, William Gamache, John Sullivan, and Walter F. Guilford to the board of election commissioners of the city of St. Louis as not having been cast for the candidates for whom they were voted as aforesaid, against the peace and dignity of the state."

It is the settled law in this state "That in all indictments for felonies the criminal act must be alleged to have been feloniously done." State v. Murdock, 9 Mo. 730; State v. Gilbert, 24 Mo. 380; State v. Clayton, 100 Mo., loc. cit. 519, 13 S. W. 819, 18 Am. St. Rep. 565. This offense is statutory, and the question arises: Is it necessary to use the word "feloniously" in charging it? Bishop, in his New Criminal Procedure, vol. 1, § 535, says: "In statutory felony, opinions are not quite uniform as to whether the indictment must have the word `feloniously,' if not in the statute. Reason just as much requires it in the statutory as in the common law indictment. And in the absence of legislative command, the English courts compel it (Reg. v. Gray, 9 Cox, C. C. 417, 419; Leigh & C. 365), and so do those of apparently the greater number of our states"—citing State v. Murdock, 9 Mo. 730; State v. Davis, 29 Mo. 391; State v. Williams, 30 Mo. 364; State v. Deffenbacher, 51 Mo. 26; State v. Weldon, 70 Mo. 572. Each of these decisions by this court sustain the learned author's statement of the law and settle the law in this jurisdiction.

The indictment is challenged as insufficient in that it does not charge that the defendant and his associate judge and clerks feloniously, and fraudulently and willfully returned the said ballots as not having been cast for the candidates for whom they were voted, but merely charge they were wrongfully and falsely returned to the board of election commissioners of the city of St. Louis as not having been cast for the candidates for whom they were voted. The offense denounced by the statute is liable to be punished by imprisonment in the penitentiary, and thus by force of our statute is a felony. Section 2393, Rev. St. 1899 (Ann. St. 1906, p. 1466). It remains then to determine whether this indictment measures up to this requirement.

In State v. Krueger, 134 Mo. 262, 35 S. W. 604, an indictment for this offense was considered by this court, and it was held that an indictment which did not particularize the ballots alleged to have been fraudulently voted (in this case falsely counted and returned) was insufficient. In this case the pleader evidently sought to avoid that defect by naming the electors whose ballots were wrongfully and falsely counted, and does in the general charging clause allege that defendant and his associate judge and clerks unlawfully, intentionally, wrongfully, and fraudulently, and feloniously did change and attempt to change the true and lawful result of said general primary and in said precinct by making a wrong count...