State v. Weisman

• Decision Date: 19 December 1911
• Citation: 141 S.W. 1108,238 Mo. 547
• Parties: STATE v. WEISMAN.
• Court: Missouri Supreme Court

141 S.W. 1108

238 Mo. 547

STATE v. WEISMAN.

Supreme Court of Missouri. Division No. 2.

December 19, 1911.

1. CRIMINAL LAW (§ 372) — EVIDENCE—ADMISSIBILITY—OTHER OFFENSES.

Where accused was charged with fraudulent registration in procuring a third person to register in a precinct in which he did not reside, the state was properly permitted to show that accused instigated the false registration by the third person in other precincts, and induced other persons to falsely register pursuant to a conspiracy to show motive and a common scheme embracing several crimes so related to each other that proof of one tended to establish the other, and to identify accused as the person guilty of the crime charged.

2. CRIMINAL LAW (§ 423) — CONSPIRACY — ACTS OF CONSPIRATORS—EVIDENCE—ADMISSIBILITY.

Where persons formed a conspiracy to commit the crime of fraudulent registration, the act of each conspirator was admissible as bearing on and explaining the act charged against one of the conspirators, alleging that he committed the crime by inducing a co-conspirator in registering in a precinct in which he did not reside, provided such acts were committed in pursuance of the conspiracy to procure false registration on the same day.

3. CRIMINAL LAW (§ 783)—EVIDENCE—CAUTIONARY INSTRUCTIONS.

Where, on a trial for false registration based on accused procuring a third person to register in a precinct in which he did not reside, the state proved other acts of false registration by the third person and by others combining with accused to form a conspiracy to procure false registration, a charge limiting the evidence of other acts as bearing on the question of the intent of accused was sufficiently favorable to him.

4. WITNESSES (§ 361) — IMPEACHMENT—CORROBORATION.

Where evidence discrediting a state's witness either in the form of a general attack on the character of the witness, or directed to specific acts discrediting him, is introduced, the state may sustain the witness by proof of good character.

5. CRIMINAL LAW (§ 1169)—HARMLESS ERROR —ERRONEOUS ADMISSION OF EVIDENCE.

Where a state's witness admitted on cross-examination that he had been convicted of perjury committed before the grand jury in connection with the offense with which accused was charged, the error, if any, in permitting the state to show by the witness that he had never before been convicted of any offense, was not prejudicial to accused, since it did not add anything to the fact brought out on cross-examination.

6. WITNESSES (§ 345)—IMPEACHMENT—PROOF OF INDICTMENT.

Evidence that a witness has been indicted is incompetent to impeach him.

7. WITNESSES (§ 361)—IMPEACHMENT—CORROBORATION.

Where accused showed that a state's witness had been indicted, it was proper for the state to show that the witness had not been convicted under the indictment.

8. CRIMINAL LAW (§ 815) — INSTRUCTIONS — IGNORING ISSUES.

Where, on a trial for false registration based on accused inducing a third person to falsely register in a precinct in which he did not reside, the state proved other acts of false registration induced by accused, an instruction that the guilt of accused must be determined without regard to the question of the probable guilt or innocence of any other person of any crime, etc., was not objectionable as ignoring the question of the guilt of the third person, but merely confined the attention of the jury to the question of the guilt of accused of the specific offense charged.

9. CRIMINAL LAW (§ 822) — INSTRUCTIONS — CONSTRUCTION.

The instructions must be read and construed as a whole, and a party may not single out a single instruction, and attack it merely because, standing by itself, it may be unfavorable or misleading.

10. CRIMINAL LAW (§ 829)—INSTRUCTIONS— REQUESTS—MATTER COVERED.

Where the court charged that, in passing on the credibility of the witnesses, the jury should consider all the facts in evidence, the refusal to charge that, if on a former occasion witnesses gave testimony contradictory to that given at the trial, the jury could disregard the testimony of the witnesses, was not erroneous.

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

Joseph T. Weisman was convicted of fraudulent registration, and he appeals. Affirmed.

C. Orrick Bishop, for appellant. Elliott W. Major, Atty. Gen., and Jas. T. Blair, Asst. Atty. Gen., for the State.

FERRISS, J.

Convicted in the circuit court of the city of St. Louis of the crime of fraudulent registration, and sentenced upon the verdict of the jury to two years in the penitentiary, defendant appeals.

The state gave in testimony tending to prove that on the 18th day of February, 1909, a general registration of electors being in progress in the various precincts in the city of St. Louis, the defendant procured and incited a gang of negroes to fraudulently register in several precincts, some in precincts other than where they resided, and some in names other than their own, and that there was a common scheme to violate the registration law, participated in by the members of this gang and by the defendant. The particular case upon which defendant was tried was this: One member of this conspiracy, Percy Everson, registered in the Sixth precinct of the Third ward, giving his residence as 1012 Carr street, which number was in such precinct, when, in fact, he did not reside at such number nor within such precinct at all. The indictment charged such fact, with proper allegations of fraudulent knowledge and purpose, also that the defendant "did unlawfully, feloniously, and willfully incite, move, procure, aid, counsel, hire, and command the said Percy Everson to do and commit said felony." The testimony for the state was elicited from several members of the gang, including Percy Everson, all of whom implicated the defendant as the moving spirit. These witnesses all admitted on the stand that they had testified to the contrary of their present evidence before the grand jury and on former trials, and two of them that they had pleaded guilty to perjury committed at such former hearings. Witness Isabel testified that he was then under indictment for perjury in this matter. There was also testimony given in by the circuit attorney that defendant had confessed the crime to him. Evidence was admitted on the part of the state that the said Percy Everson and others of the gang had registered on this same day at other precincts, and in false names. Defendant did not testify. He produced testimony tending to prove good character, and also to establish an alibi. The court gave 17 instructions, and refused 12 that were requested by defendant. The defendant in his brief presents, with the ability and candor that uniformly characterize the writer thereof, several points which we will proceed to discuss.

1. It is contended that the court erred in permitting evidence to go to the jury tending to prove that the alleged principal, Everson, on the same day, fraudulently registered in two precincts other than the Sixth precinct of the Third ward charged in the indictment, and erred, also, in permitting the state to show that others of the alleged gang to which Everson belonged, namely, Priest and Bennett, fraudulently registered during that same day. It is argued that proof that the defendant incited and procured such other registrations does not tend to prove that he...