State v. Walsh

• Decision Date: 14 May 1907
• Citation: 203 Mo. 605,102 S.W. 513
• Parties: STATE v. WALSH.
• Court: Missouri Supreme Court

102 S.W. 513

203 Mo. 605

STATE v. WALSH.

Supreme Court of Missouri, Division No. 2.

May 14, 1907.

1. ELECTIONS — FRAUDULENT REGISTRATION — INFORMATION.

An information, under Sess. Acts 1903, p. 155, § 2120j, authorizing the conviction of any person fraudulently registering in any election precinct not having "a lawful right to do so," alleging that defendant "fraudulently registered" by failing to charge that he had no "lawful" right to register or to specify the acts concerning such registration which rendered it fraudulent, was insufficient.

2. CRIMINAL LAW — EVIDENCE — HEARSAY.

In a prosecution for illegal registration, evidence in rebuttal that witness had a conversation with a lady at the street number from which defendant was charged to have registered, in which conversation the lady stated that defendant resided there, was inadmissible as hearsay.

3. ELECTIONS — FRAUDULENT REGISTRATION — EVIDENCE.

In a prosecution for illegal registration, evidence held insufficient to establish that defendant registered in two precincts with a fraudulent intent to vote in both.

Appeal from St. Louis Circuit Court; Jas. E. Withrow, Judge.

Peter Walsh, Jr., was convicted of unlawful registration, and he appeals. Reversed.

Alphonso Howe, for appellant. The Attorney General and N. T. Gentry, for the State.

BURGESS, J.

On the 19th day of September, 1905, the circuit attorney of the city of St. Louis filed an information, duly verified, in two counts, the first of which charged the defendant with unlawfully, feloniously, knowingly, and fraudulently registering in two election precincts in St. Louis on the same day, the second count of the information charging that the defendant unlawfully and fraudulently registered in a precinct in which he did not reside. At the December term, 1905, of the circuit court of said city, the defendant was tried and convicted under the second count of the information, and his punishment assessed at imprisonment in the penitentiary for two years. Defendant's motion for new trial and in arrest being overruled, he appealed.

The said second count of the information is as follows: "And said Arthur N. Sager, circuit attorney, within and for the city of St. Louis (said city comprising the Eighth judicial circuit of the state of Missouri), as aforesaid, now here in court, on behalf of the state of Missouri, further information makes that in the city of St. Louis, on the nineteenth, twentieth, twenty-first, and twenty-second days of September, one thousand nine hundred and four, a general registration of voters, under the laws of the state of Missouri, was held in the said city of St. Louis, and in every ward and precinct of said city of St. Louis (said city of St. Louis being then and there a city having more than three hundred thousand inhabitants), and in the Ninth precinct of the Second Ward of said city of St. Louis by and before the duly appointed and acting judges, clerks, and officers of registration of said precinct and ward; and that Peter Walsh, Jr., on the said nineteenth day of September, one thousand nine hundred and four, at the said city of St. Louis, in the said Ninth precinct of the Second Ward, before the said duly appointed, qualified, and acting judges and clerks of registration of said precinct, unlawfully, feloniously, knowingly, and fraudulently did register as a qualified voter of said precinct, and then and there give to the said judges and clerks of election of said precinct, who were then and there acting as officers of registration, his name as Peter Walsh, Jr., and his residence as No. 3129 North Twelfth street, in said precinct, and then and there request said officers of registration to then and there write the name of him, the said Peter Walsh, Jr., upon the registers, poll books, and books of registration of said precinct and to enter the residence of him, the said Peter Walsh, Jr., upon said books, as No. 3129 North Twelfth street, in said precinct, as a qualified voter of said precinct, having the right to register and vote in said precinct, and the said judges and clerks of registration of said precinct aforesaid then and there did enter upon the registers, poll books, and books of registration of said precinct the name of the said Peter Walsh, Jr., as residing at No. 3129 North Twelfth street, and as being a qualified voter, having the right to register and vote in said precinct, and he, the said Peter Walsh, Jr., then and there feloniously, willfully, knowingly, unlawfully, and fraudulently did write his name upon the said registers, poll books, and books of registration of said precinct as a qualified voter having the right to register and vote in said precinct by then and there writing the signature and name Peter Walsh upon said books in the margin provided for the signature of qualified voters when registering, whereas, in truth and in fact, the said Peter Walsh, Jr., then and there did not reside at No. 3129 North Twelfth street, nor in the said precinct, and had no right to register in said precinct as he, the said Peter Walsh, Jr., then and there well knew, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state." The state's evidence tended to show that a general registration of voters was held in the city of St. Louis on the 19th day of September, 1904, and in the Twelfth precinct of the Seventeenth Ward, and in the ninth precinct of the Second Ward in said city; that on said day the defendant appeared before the judges and clerks of registration at the polling place in the Twelfth precinct of the Seventeenth Ward, was sworn, and his name entered in the registration book as a qualified voter, the defendant giving his name as Peter Walsh, and his address at 2341 Madison street; that on the same day defendant in like manner registered as a qualified voter in the Ninth precinct of the Second Ward, except that his name was entered as Peter Walsh, Jr., and his residence as No. 3129 North Twelfth street. In support of the above facts, the state introduced in evidence four books identified as the books used by the judges and clerks at said election precincts during the registration held on said 19th day of September. It also appeared from the evidence that defendant's father, whose name was Peter Walsh, lived at 3129 North Twelfth street.

The defendant testified in his own behalf that he was born in St. Louis, and lived there all his life; that he was a police officer and had been such for six years; that he was married in February, 1904, and at the time of his marriage was living at No. 3129 North Twelfth street in his father's house, and had lived there with his father about 16 years; that after his marriage he lived there until the 1st of April, 1904, when he moved to 2341 Madison street; that his wife wanted him to get a house close to...