State v. Whalen

• Decision Date: 23 May 1911
• Parties: THE STATE v. JOHN WHALEN, Appellant
• Court: Missouri Supreme Court

137 S.W. 881

234 Mo. 539

THE STATE v. JOHN WHALEN, Appellant

Supreme Court of Missouri, Second Division

May 23, 1911

Appeal from St. Louis City Circuit Court. -- Hon. Eugene McQuillin Judge.

Affirmed.

Grant Gillespie and C. Orrick Bishop for appellant.

This indictment simply avers that appellant at the time and place mentioned applied for and received a ballot in and upon a name "to these grand jurors unknown;" it does not aver that the name was not his own nor that it was the name of any other person; for aught that appears from the indictment, appellant may have applied for and received a ballot in and upon his own name; the fact that the name may have been "to the grand jurors unknown" does not excuse them from alleging that it was not appellant's own name; and the use of the adjectives "falsely fraudulently and feloniously" add no weight to the averment nor do they supply the omission. Nothing can be taken by intendment. True, it is not made an offense only to apply for and receive a ballot in a name not one's own or in the name of any other person, and these words may be treated merely as inducement, but this indictment avers that it was this ballot, and no other, which was cast, for it proceeds to allege that appellant did then and there offer and cast said ballot and vote at said general election, etc., without averring that appellant voted in and upon any name not his own nor in and upon the name of another person. To have been criminal, appellant must have applied for and received the ballot in a name other than his own and voted it in a name other than his own; but this was not alleged. The court submitted to the jury the question whether appellant applied for and received a ballot "in and upon a name not his own and in and upon the name of another person," when there was no such charge in the indictment and no evidence whatever to support it; also whether appellant offered and cast said ballot and voted "in and upon a name not his own and in and upon the name of another person," when there was no such charge in the indictment, and no evidence whatever to support it; also whether the appellant was a resident of and resided in the alleged precinct on the day of election, when there was no evidence that he did not reside in said precinct; also whether appellant then and there knew that he was not voting in his own name and had no lawful right to offer and cast said ballot and vote, when there was no evidence on which to base such an instruction. The indictment alleged that appellant voted at said election in said election precinct "without having a lawful right to vote therein" but this charge was not embodied in the instruction, nor were the jury instructed to consider it. In fact, the instruction submitted to the jury only those portions of the indictment which were insufficiently charged, and ignored the only valid charge which followed the statute 2120k. If the indictment was bottomed on R. S. 1899, sec. 2114, then the instruction was clearly error in misstating the punishment.

Elliott W. Major, Attorney-General, Chas. G. Revelle and John M. Dawson, Assistant Attorneys-General, for the State.

(1) The indictment in this case is predicated upon Sec. 4442, R. S. 1909. The indictment follows the language of the statute and is valid, sufficient and good. State v. Cummings, 206 Mo. 618; State v. Clancy, 228 Mo. 476; State v. Tiernan, 223 Mo. 147; State v. Exnicious, 223 Mo. 61. The fact that the judges and clerks of the sixth election precinct did not do their duty in taking the name of appellant, or knowing the name under which appellant applied for and received the ballot, or that he received the ballot without giving his name or the name under which he voted, is no defense in this case. The evidence shows that he handed the ballot to the receiving judge and the receiving judge placed the same in the ballot box. This is a violation of the statute under which he is prosecuted. State v. Ryan, 60 Mo.App. 487. The indictment would be good if the words "in and upon a name to these grand jurors" were rejected as surplusage. It has always been held that the grand jurors may use the declaration in an indictment "to the grand jurors unknown." Bishop's New Crim. Proc., secs. 434, 438; Joyce on Indictments, secs. 399, 400; State v. Niehaus, 217 Mo. 332. (2) The instructions cannot be complained of by appellant because they went further and compelled the jury to find facts not necessary to that charge before they could convict the appellant. R. S. 1909, sec. 4442.

FERRISS, J. Kennish, P. J., and Brown, J., concur.

OPINION

FERRISS, J.

Defendant was prosecuted in the St. Louis Circuit Court on the following indictment:

"The grand jurors of the State of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn and charged, upon their oath present, that on the third day of November, one thousand nine hundred and eight, and in each ward and election precinct of said city of St. Louis, a general election was had and held pursuant to the Constitution and laws of the State of Missouri, for the choice and election of Presidential electors, state officers and city officers, to-wit, for the election of two Presidential electors at large, sixteen Presidential electors, Governor, Lieutenant-Governor, Secretary of State, State Auditor, State Treasurer, Attorney-General, Railroad and Warehouse Commissioner, Judge of the Supreme Court, Judge of the St. Louis Court of Appeals, Representatives in Congress, State Senators, Representatives in the State Legislature, three judges of the circuit court of said city of St. Louis, of a circuit attorney, a sheriff, a public administrator, a coroner, and three members of the city council of the city of St. Louis, and then and there on said third day of November, 1908, at said city of St. Louis, at said general election, one John Whalen did appear at the polling place of the sixth election precinct of the fourth ward of said city of St. Louis, before the duly appointed, qualified and acting judges and clerks of election within and for the said election precinct of said ward, and did then and there falsely, fraudulently and feloniously apply for and receive a ballot in and upon a name to these grand jurors unknown, and in said election precinct did then and there falsely, fraudulently and feloniously offer and cast said ballot and vote at said general election, and for the officers aforesaid, without having a lawful right to vote therein, in this, to-wit, that he, the said John Whalen, was not on said third day of November, 1908, a resident and qualified voter in said sixth election precinct of the said fourth ward, and did not on said third day of November, 1908, reside in said sixth election precinct of the said fourth ward, and was not on said third day of November, 1908, entered and registered in the official registers and books of registration of said sixth election precinct of the fourth ward of said city as a qualified voter and elector of said sixth election precinct of the said fourth ward, all of which he, the said John Whalen, then and there well knew. And so the said John Whalen, at the said city of St. Louis, on the said third day of November, 1908, in the manner and form and by the means aforesaid, unlawfully, feloniously, willfully, knowingly, falsely and fraudulently did vote in said election precinct without having a lawful right to vote therein; against the peace and dignity of the State."

This indictment is drawn under section 4442, Revised Statutes 1909, which, so far as it is material to this case, reads as follows:

"Any person who shall falsely impersonate a voter or other person, and vote, or attempt or offer to vote in or upon any name not his own, or shall vote or attempt to vote in or upon the name of any other person living or dead or in or upon any assumed or...