The State v. O'Brien
| Decision Date | 26 May 1910 |
| Citation | 128 S.W. 732,228 Mo. 404 |
| Parties | THE STATE v. THOMAS O'BRIEN, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Geo. H. Shields Judge.
Affirmed.
C Orrick Bishop for appellant.
(1) The indictment in this case charges that the appellant "then and there unlawfully, feloniously, willfully, knowingly falsely and fraudulently did sign said registers, poll books and books of registration of said election precinct, in the margin on said books provided for the signatures of registered electors and voters, under the said name John Murphy, by writing on said books the words and name "John Murphy." It appeared from the evidence that there were four books of registration kept by the registration officers for each precinct, on each of which the applicant for registration was required to write and sign his name, to-wit, (1) an original registry book; (2) a copy of the original registry book; (3 and 4) two primary books, copies or counterparts of each other. These four books, alleged to have been used at the general registration on September 14, 1908, were admitted in evidence, as having been signed at the alleged time and place by appellant and were identified by the officers of registration as the books, and the only books, used by them at the time and place charged in the indictment; and in each of the books the purported signature is "John Murpy," and nowhere were the "words and name John Murphy," written by this appellant. This was a fatal variance between the allegation and proof, and the demurrer to the evidence should have been sustained, and appellant's request for a peremptory instruction to acquit should have been given. State v. Judd, 221 Mo. 554. (2) And the court further erred in submitting to the jury the question whether "said defendant then and there willfully, knowingly, fraudulently and falsely signed the said official registers and books of registration by writing thereon his name as John Murphy," when there was no evidence whatever that appellant had signed the name John Murphy upon any book.
Elliott W. Major, Attorney-General, and Chas. G. Revelle, Assistant Attorney-General, for the State.
(1) An examination of the record and the contentions made by appellant in the trial court discloses that substantially all the questions presented are settled by the recent decisions of this court in the cases of State v. Cummings, 206 Mo. 624; State v. Tiernan, 223 Mo. 142; State v. Keating, 223 Mo. 86; State v. Exnicious, 223 Mo. 61, and State v. Thavanot, 225 Mo. 545. (2) The indictment charges that defendant represented that his name was John Murphy, and that he registered under and signed that name. The registration records offered in this connection disclose that as questions were asked him by the judges and his answers were given, the clerk entered such answers, and in entering the name stated by him, the clerk wrote it "John Murphy," and he was registered by the judges under that name. When he signed the register, he wrote it "John Murpy." In our opinion, this constitutes no fatal variance, and is clearly distinguishable from the question involved in the recent case of State v. Judd, 221 Mo.554. The later case of State v. Exnicious seems more in point. R. S. 1899, sec. 2534. To the trial court alone belonged the duty of determining whether the variance was material, and the action of that court in overruling the demurrer and giving the instructions it did give, is equivalent to an affirmative finding that the variance was immaterial and not prejudicial, and to such finding this court will defer. State v. Decker, 217 Mo. 321; State v. Barker, 64 Mo. 285; State v. Smith, 80 Mo. 520; State v. Harl, 137 Mo. 256; State v. Sharp, 106 Mo. 109; State v. Walters, 144 Mo. 347; State v. Wammack, 70 Mo. 411; State v. Sharp, 71 Mo. 221; State v. Ward, 70 Mo. 255; State v. Nelson, 101 Mo. 482; State v. Dale, 141 Mo. 287.
The defendant was indicted at the June term, 1908, of the circuit court of the city of St. Louis, for the offense of falsely and fraudulently registering on the election registration books of the third precinct of the Sixteenth ward of the city of St. Louis under a name not his own, to-wit, under the name of John Murphy, his true name being Thomas O'Brien. At the December term, 1908, of said court the defendant was tried and convicted of said offense, his punishment being assessed at imprisonment in the penitentiary for a term of three years and six months.
After motions for new trial and in arrest of judgment were filed and overruled, judgment was entered in accordance with the verdict, from which judgment defendant appeals to this court.
The testimony shows that, pursuant to the election laws governing the city of St. Louis, there was a general registration of the voters and electors of said city on the 14th, 15th, 16th and 17th days of September, 1908, said registration being conducted under the supervision of the election commissioners, and by judges and clerks duly appointed, sworn and qualified.
In accordance with statutory provisions, every person applying for registration was required to state, under oath, his place of residence, name, date of birth, age, occupation, duration of residence in the precinct, city and State, and certain other matters touching his qualifications and right to register as a voter. The answers of the applicant for registration were recorded in records prepared and kept for that purpose. If the answers were satisfactory to the judges, the applicant was declared a qualified voter, and the word "yes" entered opposite the name of the applicant, in a column headed by the words "qualified voter," and the applicant was then permitted to sign, at the proper place on the records, his name as a qualified voter.
On the 14th day of September, 1908, the defendant appeared before the judges and clerks of registration of the third election precinct of the Sixteenth ward, and requested permission to register. After being duly sworn, and in answer to the prescribed questions, he stated that his name was John Murphy, and that he resided at 1119 Cass avenue, within said ward and precinct. These answers, with others, were written by the clerk in the registration records, the name given by the defendant, "John Murphy," being so entered by the clerk. The defendant then, at the proper places in said registration books, signed his name as "John Murpy," immediately after doing which, and as he was leaving the room, he was arrested by a police officer, who was present when he registered and who knew his true name to be Thomas O'Brien. He was taken to the police station where he gave his name as John Murphy. While being taken to the police station, he repeatedly requested the police officer to permit him to escape, saying, among other things, that members of his family had for many years been friends and acquaintances of the officer, and that no one would know of the occurrence if the officer would release him.
The State proved by several witnesses who were acquaintances of the defendant that the defendant's name was Thomas O'Brien. Defendant offered no testimony on his own behalf, but at the close of the evidence for the State asked the court for an instruction in the nature of a demurrer to the evidence, which was refused, to which action of the court defendant excepted, and preserved the point in his motion for a new trial.
OPINION.The one contention of the defendant in this case is, that there was a fatal variance between the allegations and the proof, and that the court, therefore, erred in overruling the demurrer to the evidence. As supporting his said contention, defendant cites the case of State v. Judd, 221 Mo. 554, 120 S.W. 780, but which case, as we shall hereafter show, is distinguishable from the case at bar.
The indictment charges that the defendant represented to the judges and clerks of registration that his name was John Murphy, and then alleges that he, "then and there, unlawfully, feloniously, willfully, knowingly, falsely and fraudulently, did sign said registers, poll books and books of registration of said election precinct, in the margin on said books provided for the signatures of registered electors and voters, under the said name John Murphy, by writing on said books the words and name 'John Murphy.'"
The proof is strong and incontestable that the defendant did represent to the judges and clerks of registration that his name was John Murphy, and it was so entered by the clerks on the books of registration. It was shown however that when the defendant signed his name in said books, he each time wrote it "John Murpy." This was nothing more nor less than a misspelling of the name which he assumed for a fraudulent purpose, and despite the misspelling, which was...
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