The State v. Anslinger
| Citation | 71 S.W. 1041,171 Mo. 600 |
| Parties | THE STATE v. ANSLINGER, Appellant |
| Decision Date | 03 February 1903 |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. H. D. Wood, Judge.
Reversed and remanded.
S. S Bass, Jones, Jones & Hocker and A. H. Roundebush for appellant.
(1) The court erred in failing to instruct the jury as to good character of the defendant. R. S. 1899, sec. 2627, as amended by the Act of 1901, Laws 1901, p. 140; State v O'Connor, 31 Mo. 389; State v. Barth, 25 S.C. 175; United States v. Roundenbush, 1 Baldw. 514; United States v. Gunnell, 5 Mackey 196; State v. Edwards, 13 S.C. 30; Stewart v State, 22 Ohio St. 477; State v. Henry, 50 N.C. 65; Baker v. State, 53 N. J. L. 45; People v. Hancock, 7 Utah 170; Long v. State, 23 Neb. 33; State v. Sauer, 38 Minn. 438; Johnson v. State, 34 Neb. 257; Kilpatrick v. Com., 31 Pa. 198; Holland v. State, 131 Ind. 568. (2) In view of the testimony of the State's witnesses, Dutzi and Ahrenhoesterbaumer, the court should have given the jury a special instruction on the subject of the credibility of witnesses as effected by the hope of reward, and its failure to do so was error. State v. Rush, 95 Mo. 206; State v. Walker, 98 Mo. 113. (3) The jury is the sole judge of the credibility of witnesses, and the court erred in refusing to exclude questions which called for the opinion of witnesses on their own credibility. Billings v. St. Louis, 11 Mo. 357; State v. Anderson, 19 Mo. 241; State v. Gee, 85 Mo. 647; State v. Wilson, 143 Mo. 334. (4) The verdict by reason of the omission of the word "feloniously," is not responsive to the charge in the indictment, and will, therefore, not support a judgment. 22 Ency. Plead. and Prac., 873; State v. Robb, 90 Mo. 30; State v. Adam, 31 La. Ann. 717; People v. Perez, 87 Cal. 122; Gardes v. U. S. 87 F. 172; State v. Guillory, 42 La. Ann. 581.
Edward C. Crow, Attorney-General, for the State.
(1) The court committed no reversible error in failing to specifically instruct the jury as to the defendant's character. Error to be reversible must be prejudicial. If the evidence that the defendant committed the crime be direct and positive, his previous good character can not be looked to as ground of acquittal. 52 Mo. 251; 70 Mo. 546. (2) The words "whenever necessary" in the statute, must be given some force in this statute. The rule of construction is that a law will, if possible, be so construed as to give effect to all its parts. The words "whenever necessary" must, in the first place, be held to mean that some substantial evidence of good character must be first produced. It is the duty of the trial court to determine the question as to whether or not any competent evidence has been introduced tending to prove good character. An inspection of the record in this case will justify my suggestion that the statements of the witnesses concerning the defendant's character, drawn out on cross-examination by the defendant's counsel, do not constitute the class of evidence on which the law intended an instruction for good character should be based. The words "whenever necessary" mean whenever "legally necessary." Is it legally necessary to instruct on good character when no substantial, positive evidence of good character has been given? The weight of the testimony of good character is, of course, for the jury, but the legal competency of it must be first passed upon by the court. Does the evidence offered tend to legally prove good character? If not, it surely can not be legally necessary to instruct on it. The aim of the instruction is to assist the jury in arriving at a verdict. (3) It is but fair to the trial court that counsel for the defense should call attention to the particular class of instructions, at least in general terms, which it is claimed the trial court has by an oversight omitted from the instructions given, in order that the trial court might have an opportunity to know at least along what general lines it had erred. Neither at the time the instructions were given, nor in the motion for a new trial, was the trial court's attention directed even in general terms to the instruction or class of instructions it was claimed to have omitted from those given. But only the general allegation was made that the court had not instructed on all the law of the case. Even if it is true that a failure to instruct on all the law of the case, whether requested or not, in all cases where such omission occurs and a general objection is made, "shall be good cause for setting aside a verdict," does it follow that the motion for a new trial should not specify the character or class of instruction or instructions that have been omitted? The statute does not say that counsel shall be relieved in his motion for new trial of the duty of setting out specifically the legal grounds upon which he relies for a rehearing.
At the April term, 1901, of the circuit court of the city of St. Louis, the defendant, Frank Anslinger, was charged, by indictment duly presented by the grand jury at said term of court and filed June 19, 1901, with knowingly, willfully, fraudulently and feloniously voting in more than one election precinct, at a municipal election, in the city of St. Louis, on the first Tuesday in April, 1901. Defendant was duly arraigned and entered his plea of not guilty.
December 10, 1901, the defendant was tried, which trial resulted in a verdict of guilty, as charged, and his punishment assessed at two years' imprisonment in the penitentiary. In due time, defendant filed his motions for new trial and in arrest of judgment, both of which were by the court overruled, and appellant, in proper form, prosecuted his appeal to this court.
Upon the trial in this cause, in addition to the formal proof by the State of the scheme and charter of the city of St. Louis, providing for the election of city officers and the day upon which such elections are to be held, identification of registration and poll books, qualifications of the judges, etc., three judges of election, one clerk and challenger at precinct seven, in ward seven, identify the defendant as depositing his ballot at that precinct at the election for the election of city officers in the city of St. Louis on the first Tuesday in April, 1901. It is unnecessary to further refer to the testimony as to defendant's voting at precinct seven, for he admits on the stand, as a witness in his own behalf, that he cast the vote as charged at that precinct.
As to the charge that defendant voted at precinct four, ward eight, the testimony, as disclosed by the record, shows that two judges of election, one clerk and a challenger at precinct four, ward eight, positively identified the defendant and testify most clearly and convincingly that the defendant also cast his ballot, on the same day, at the same election, at precinct number four in ward eight.
In behalf of the defendant, two judges of the election at precinct four in ward eight, in said city election, testify that they do not remember of seeing defendant at precinct four, in ward eight, on the day of election. They recall the fact that some one voted under the name of Frank Anslinger, but say they can not identify the defendant in court as being that man. They further state that there was, according to their best memory, some difference in the appearance of the man voting as Frank Anslinger and the defendant as he appeared in court at the trial. They would not state, however, that the man voting as Anslinger was not the defendant. There was evidence tending to prove a good reputation for defendant as a hard working, industrious man.
Defendant testified in his own behalf. His testimony was an admission that he voted at precinct seven, ward seven, and an absolute, unqualified and positive denial of voting at precinct four in ward eight, and he further stated that he did not register in precinct four, and that the signature purporting to be his, in the book of registration of elections in the eighth ward, precinct four, was not in fact his. This is substantially what the record discloses as to the facts in this cause.
It developed upon the cross-examination of witnesses for the State, that some of the citizens of the city of St. Louis had offered a reward of one hundred dollars to any person who would furnish information leading to the arrest and conviction of any person violating the election law of the city of St. Louis. Counsel for appellant, upon cross-examination of the witness for the State, inquired of the witness if he was not out for this reward. It is evident from the question propounded that its purpose was to affect the credibility of the witness. It is urged that the court erred in permitting counsel for the State, upon re-direct examination, to inquire of the witness, if the reward as offered in any way influenced his testimony. This contention must be ruled against the appellant. The question was clearly competent and the answer of the witness was relevant, in view of the cross-examination of appellant's counsel. It is a very common practice, and the instances are numerous, in which a witness, upon cross-examination, says he is unfriendly to the defendant, and the State's counsel inquires of him, if such unfriendly feelings have any influence upon his testimony. The question in this case is analogous in principle, and there is but one opinion by the "Bench and Bar," and that is that the witness has a perfect right to say whether or not he was influenced in his testimony, by hope of reward or certain conditions of his feelings at the time he testifies.
It is next argued that, upon the testimony disclosed by the record as to the reward for information leading to the conviction of any person violating the...
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