The State v. Judge

• Decision Date: 25 June 1926
• Docket Number: 26650
• Citation: 285 S.W. 718,315 Mo. 156
• Parties: The State v. Joseph Judge, Appellant
• Court: Missouri Supreme Court

285 S.W. 718

315 Mo. 156

The State v. Joseph Judge, Appellant

No. 26650

Supreme Court of Missouri

June 25, 1926

Appeal from Circuit Court of St. Louis County; Hon. G. A. Wurdeman Judge.

Affirmed.

E McD. Stevens for appellant.

(1) Section , Revised Statutes 1919, provides that the ballots cast in an election shall in no way be used, or any information disclosed that would tend towards showing who voted any ballot, etc. State ex rel. Copeland v Wurdeman, 295 Mo. 458. (2) There was insufficient evidence as to the residence of defendant. Witness Moore was permitted to testify over objection of defendant by stating his conclusion as to residence of defendant. A witness is to state facts rather than opinions. Walton v. Ry. Co., 40 Mo.App. 544. (3) The court erred in failing to define what a legally qualified voter is. State v. Hardelein, 169 Mo. 579. (4) The court erred in taking judicial notice that there was an election legally held on August 1, 1922, because if there was no legal election there can be no offense at voting at it. (5) In a criminal case it is the duty of the court, under Sec. 4025, R. S. 1919, to instruct the jury on all essential questions of law whether requested or not. State v. Slusher, 301 Mo. 286; State v. Conway, 241 Mo. 271; State v. Gaultney, 242 Mo. 388; State v. Mullins, 292 Mo. 44. (6) Sec. 4807, R. S. 1919, provides the offense of a disqualified voter voting at a primary election as a misdemeanor and covers all the law on the subject of voting at a primary election. It therefore follows that the court erred in instructing on a felony, as the felony statute provides for voting at a general election, is a general law, and where there is a general and special law the special law will take precedence. Defendant did not need to request such instruction. State v. Gibreath, 267 S.W. 880; Secs. 4839, 4805, 4807, 5954, R. S. 1919. (7) If the defendant voted at said election there is no evidence that he knowingly cast a ballot unlawfully, etc. The defendant being a duly appointed election judge, served with notice as such by the county court, had a right to presume that he was a qualified voter at said time and place, and without some direct positive evidence to the contrary is presumed to have acted rightfully and lawfully, and is presumed to have a right to vote at said time and place; therefore if he did vote as charged, the court cannot say as a matter of law, and the jury cannot find as a matter of fact, that the defendant feloniously voted, but could only find that he was a disqualified voter, voting at a primary election, which charge is a misdemeanor. (8) If there be any doubt whether a statute embraces the offense the doubt is to be resolved in favor of the accused. 1 Bishop on Criminal Law, sec. 134; Dooley v. Jackson, 104 Mo.App. 32; United States v. Morris, 14 Pet. 464; United States v. Sheldon, 15 Wheat. 119.

North T. Gentry, Attorney-General, and Harry L. Thomas and A. B. Lovan, Special Assistant Attorneys-General, for respondent.

(1) The verdict is sufficient and in proper form. R. S. 1919, sec. 3224. (2) Matters of exception are not preserved and brought before the court in such form as to merit review. State v. Walker, 194 Mo. 367; State v. Rollinger, 256 S.W. 460; State v. Cole, 273 S.W. 1037; State v. Brown, 279 S.W. 98. Where no bill of exceptions is filed, the appellate court will proceed to a determination of the appeal upon the record proper only. R. S. 1919, sec. 4106; State v. Brown, 279 S.W. 98; State v. Hodges, 234 S.W. 789. There is no bill of exceptions in this case because the bundle of papers filed, all of which are labeled bill of exceptions, commingles matters of exception with record proper to such an extent that it renders the bill of exceptions fatally defective. It is impossible from an examination of this transcript to determine where either the record proper or bill of exceptions begins or ends. St. Louis v. Young, 248 Mo. 346; Cunningham v. School District, 215 S.W. 249; Reno v. Fitz Jarrel, 163 Mo. 411; Clay v. Publishing Co., 200 Mo. 665.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On October 23, 1922, the grand jury of St. Louis County, Missouri, returned into the circuit court of said county an indictment, charging that on August 1, 1922, the defendant unlawfully, knowingly, fraudulently and feloniously did cast a ballot, and voted in the primary election held in said county on the above date, he not being a qualified voter of said county, and not having resided therein sixty days prior to said August 1, 1922, etc. Defendant was formally arraigned and entered a plea of not guilty. On June 1, 1923, a jury before whom the case was tried, returned into open court the following verdict:

"We, the jury, find the defendant guilty as charged in the indictment and assess his punishment at one year imprisonment in the county jail and a fine of one thousand dollars."

Immediately following the entry of the court record setting out said verdict the following appeared:

"And thereupon the court doth defer sentence herein," . . .

On June 5, 1923, defendant, as shown by the record, filed his motion for a new trial, which was overruled on February 4, 1924. Thereafter, on May 3, 1924, an appeal was allowed defendant to this court. The record recites that on August 8, 1924, appellant filed in said court his bill of exceptions.

On December 4, 1924, the record discloses, the mandate of this court was filed in the circuit court aforesaid as follows:

"State of Missouri, Sct.

"The State of Missouri,

"To The Clerk of The Circuit Court of St. Louis County, Greeting:

"Whereas, It has been suggested to our Supreme Court of the State of Missouri that the transcript of the record and proceedings in a certain cause lately pending in the Circuit Court of St. Louis County, wherein the State of Missouri was plaintiff and Joseph Judge was defendant, and which said cause was brought into our said Supreme Court, on appeal, is imperfect, insufficient and diminshed. And whereas, our said Supreme Court is satisfied that the said record does not contain a full, true and complete transcript of the proceedings had in said Circuit Court of St. Louis County, in that said transcript fails to show the judgment and sentence of the Circuit Court of St. Louis County upon the verdict of guilty returned by the jury in said cause:

"These are, therefore, to command you, as before you were commanded, that you send up forthwith to our said Supreme Court at the City of Jefferson a full, true and complete transcript of said proceedings, certified under the seal of said Circuit Court of St. Louis County, so that our said Supreme Court may proceed to do justice herein between the parties. And have you then and there this writ.

"WITNESS: J. D. Allen, Clerk of the Supreme Court of Missouri, with the seal of said court hereunto affixed. Done at office in the City of Jefferson, State aforesaid, this 3rd day of December, 1924.

"J. D. Allen, Clerk."

"A. L. Pryor, D. C."

The circuit clerk made a return to this court reciting that the record here was correct, which disclosed on its face that no judgment was entered in the circuit court on the verdict of the jury, nor was defendant sentenced pursuant to said verdict. On the clerk's return supra, the Attorney-General filed a motion to dismiss the appeal and to remand the cause to the circuit court in order that a proper judgment should be entered in the case. On December 31, 1924, this court dismissed the appeal on the ground that appellant had not perfected his appeal within the time required by law. Thereafter the mandate of this court was transmitted to the circuit court, and the latter, on January 8, 1925, entered judgment in due form and pronounced sentence on defendant in conformity to the verdict aforesaid. A new affidavit for appeal was filed in the circuit court on the last-named date, and an appeal was granted to this court. A new transcript was filed herein on September 22, 1925, which contains the evidence adduced at the trial, including the instructions, rulings of the court, etc.

There was substantial evidence offered on the part of the State tending to prove the following facts: That on August 1, 1922, a primary election was held in the State of Missouri, in St. Louis County, Missouri, and at the polling place of Home Heights in said county, for the purpose of making nominations of candidates for certain public offices, to-wit; Senator of United States from Missouri; member of Congress from the 10th Congressional District of the State; State, county and township officers, etc.; that the defendant, Joseph Judge, appeared at said regular polling place in Home Heights aforesaid and for a time acted as receiving judge at said election; that defendant received from Oliverson, clerk of said election, a ballot; that the defendant's name was given to the clerk and entered on line 12 of the book; that after getting said ballot he was given a number on line 12; that defendant was in charge of the ballot box where the ballots were deposited, after they had been prepared by the voter; that the right of defendant to vote at said election at above precinct was challenged; that he left there, ceased to act as judge and did not return.

Thomas D. Moore testified that he had known defendant for about the last three years; that he knew defendant on or about August 1, 1922; that defendant lived at 1482a Goodfellow Avenue in the city of St. Louis, Missouri; that his wife and one child lived with him; that Moore asked defendant what right he had to act as judge there, when he was a resident of the city of St. Louis, Missouri; that defendant said he resided in the county; that Moore asked him when he moved to the county, and told him that his...