State v. Shelley

• Decision Date: 04 February 1902
• Citation: 66 S.W. 430,166 Mo. 616
• Parties: STATE v. SHELLEY.
• Court: Missouri Supreme Court

66 S.W. 430

166 Mo. 616

STATE v. SHELLEY.

Supreme Court of Missouri, Division No. 2.

February 4, 1902.

FALSE IMPERSONATION OF VOTER — EVIDENCE AS TO STATUS OF PARTY PERSONATED — REGISTRATION BOOK — PRESUMPTION.

In a prosecution under Rev. St. 1899, § 7261, for falsely personating an elector, the book of registration, in which the name of the party personated appears as a voter, is not prima facie evidence that such person was an elector and entitled to vote in the precinct, sufficient to support a conviction, since the presumption that the registration proceedings were regular cannot overcome the presumption of innocence.

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

Dan Shelley was convicted of falsely personating an elector, and appeals. Reversed.

T. J. Rowe and S. S. Bass, for appellant.

The Attorney General and Jerry M. Jeffries, for the State.

SHERWOOD, J.

Dan Shelley was prosecuted under the provisions of section 7261, Rev. St. 1899; he being indicted for that he falsely, fraudulently, and feloniously impersonated one Joseph Conley, an elector duly registered, etc. The section on which the indictment is founded is, so far as necessary to quote it, the following: "Any person who shall falsely personate an elector, or other person, and vote, or attempt or offer to vote in or upon the name of such elector or other person; or shall vote, or attempt to vote, in or upon the name of any other person, living or dead, * * * shall, upon conviction, be guilty of a felony and punished for every such offense by imprisonment in the penitentiary not less than two years." Defendant stood his trial, which resulted in a verdict of guilty, and punishment assessed at imprisonment in the penitentiary for the term of two years. There was no evidence offered in support of the allegation that Joseph Conley was an elector, etc., other than the book of registration offered in evidence, and showing such name having been registered as resident at a certain number. Defendant demurred to the evidence, but was unsuccessful in so doing, whereupon the court gave, among others, this instruction: "Third. The court instructs the jury that, if they believe from the evidence that the name of Joseph Conley appeared upon the registration book of the precinct mentioned in the indictment and offered in evidence, then this fact is prima facie evidence that said Conley was an elector and entitled to vote in said precinct."

The dominant question in this cause is whether the name of Joseph Conley, appearing on the registration book as an elector of that precinct, was sufficient evidence of the fact that he was an elector. The court, in the quoted instruction, ruled that the registration of Conley's name upon the registration book was prima facie evidence that Conley was an elector. The correctness of this position, as regards the charge here preferred, is now to be examined. Greenleaf says: "A distinction is to be noted between civil and criminal cases in respect to the degree or quantity of evidence necessary to justify the jury in finding their verdict...