The State v. Keating

• Decision Date: 19 March 1907
• Parties: THE STATE v. EDWARD J. KEATING, Appellant
• Court: Missouri Supreme Court

100 S.W. 648

202 Mo. 197

THE STATE v. EDWARD J. KEATING, Appellant

Supreme Court of Missouri, Second Division

March 19, 1907

Appeal from St. Louis City Circuit Court. -- Hon. Jas. E. Withrow Judge.

Reversed and remanded.

Bass & Brock for appellant.

(1) Appellant's motion to quash the information should have been sustained because the information is defective as to the second count, in that it attempts to charge two separate and distinct statutory offenses in one and the same count. Sate v. Blakley, 184 Mo. 187; State v Dale, 141 Mo. 284; State v. Huffman, 136 Mo 58. (2) The second count is bad for the following reasons: It fails to charge and allege that the ninth precinct of the second ward was an "election" precinct; it fails to charge and aver that the defendant "personally" applied for registration; or that he was "sworn" or that he "affirmed" before one of the judges to answer questions; or that he applied for registration in person before the "precinct board of registration," and does not charge or aver that the defendant signed his name in the "original" book of registry; nor does it charge or aver that defendant had no "lawful" right to register in said precinct. United States v. McCabe, 58 F. 557; United States v. Bleven, 46 F. 381; United States v. Cruinkshank, 92 U.S. 542; State v. Meysenberg, 171 Mo. 1; State v. Etchman, 184 Mo. 193; State v. Hagan, 164 Mo. 654; State v. Burke, 151 Mo. 136; State v. Kyle, 177 Mo. 659; State v. Krueger, 134 Mo. 308; United States v. Hirshfield, 13 Blatch. 330; Blitz v. U.S., 153 U.S. 308; State v. Miller, 132 Mo. 297. (3) There was no evidence whatever to support the allegation in the second count that the defendant did not reside at No. 3127 North Twelfth street. The evidence on the part of the State was insufficient to sustain the second count of the information and did not overcome the presumption of innocence. State v. Hardelein, 169 Mo. 579; State v. Shelley, 166 Mo. 619; State v. O'Brien, 168 Mo. 404; State v. Nolan, 168 Mo. 446. (4) Section 2120 of the act approved March 24, 1903, upon which the information in this case is in part bottomed, is unconstitutional and void because it is in contravention of section 28 of article 4 of the Constitution of this State, in that the subject thereof is not clearly expressed in its title. Also the act of March 28, 1903. (5) Said act and section and also the act of March 28, 1903, upon which the said information is in part bottomed, are unconstitutional and void, because they are in contravention of section 53, article 4 of our Constitution, in that said acts, or at least the last-mentioned act, is a special law applying only to the city of St. Louis and is not a general law, though a general law can be made applicable. State v. Anslinger, 171 Mo. 600.

Herbert S. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.

(1) The information, which was accompanied by the affidavit of the circuit attorney, is sufficient in form and substance; it follows the language of the statute, and fully informs the defendant of the offense charged. Laws 1903, pp. 171 and 172. (2) The statute upon which this prosecution is bottomed is constitutional. True, said statute is intended to apply to cities having a population of three hundred thousand and over, and there is at present only one city in this State that has such population, but said facts do not make the statute local or special for either one or both of said reasons. The statute was enacted and made applicable to St. Louis and any other city having such a population, and any other city that may in the future acquire such a population. Such statutes have been held to be general statutes. State ex rel. v. Higgins, 125 Mo. 364; State ex rel. v. County Court, 128 Mo. 427. (3) There was sufficient evidence to show that defendant was guilty of registering in a precinct where he did not reside, which was the offense charged in the second count of the information, the count upon which defendant was convicted. If the jury believed the State's evidence, then defendant was clearly guilty of registering in a precinct where he did not reside. That the jury did believe the State's evidence is affirmed by their verdict, and it would have been difficult for the jury to have done otherwise, especially as the defendant did not testify and did not offer any evidence to contradict the State's prima facie case. There was, therefore, substantial evidence tending to prove that defendant was guilty; and, when this is true, this court has often said that it would not interfere, but would defer to the jury and the action of the trial court. State v. Smith, 190 Mo. 706; State v. Payne, 194 Mo. 442; State v. Groves, 194 Mo. 452; State v. Williams, 186 Mo. 128; State v. Williams, 149 Mo. 496; State v. Swisher, 186 Mo. 8.

OPINION

FOX, P. J.

This cause is now pending before this court upon appeal by the defendant from a judgment of the circuit court of the city of St. Louis, convicting him of fraudulently registering in an election precinct in which he had no lawful right to register.

On the 19th day of September, 1905, the circuit attorney of the city of St. Louis filed an information in two counts, duly verified, charging the defendant with a violation of the provisions of an act of the General Assembly, approved March 24, 1903, defining offenses in connection with elections and prescribing the penalties therefor. The defendant being convicted upon the second count, we have in this proceeding only to deal with the charge preferred in that count. The sufficiency of the count upon which the defendant was convicted, is challenged; therefore, it is well to here reproduce it. Omitting formal parts, it was as follows:

"And said Arthur N. Sager, Circuit Attorney, within and for the city of St. Louis (said city comprising the eighth judicial circuit of the State of Missouri), as aforesaid, now here in court, on behalf of the State of Missouri, further information makes, that in the city of St. Louis, on the nineteenth, twentieth, twenty-first and twenty-second days of September, one thousand, nine hundred and four, a general registration of voters, under the laws of the State of Missouri, was held in the said city of St. Louis, and in every ward and precinct of said city of St. Louis (said city of St. Louis being then and there a city having more than three hundred thousand inhabitants), and in the ninth precinct of the second ward of said city of St. Louis and by and before the duly appointed and acting judges, clerks and officers of registration of said precinct and ward; and that Edward J. Keating on said nineteenth day of September, one thousand, nine hundred and four, at the said city of St. Louis, in the said ninth precinct of the second ward, before the said duly appointed, qualified and acting judges and clerks of registration of said precinct, unlawfully, feloniously, knowingly, and fraudulently did register as a qualified voter of said precinct and then and there give to the said judges and clerks of election of said precinct, who were then and there acting as officers of registration, his name as Edward J. Keating and his residence as No. 3127 North Twelfth street in said precinct, and then and there requested said officers of registration to then and there write the name of him, the said Edward J. Keating, upon the registers, poll-books and books of registration of said precinct and to enter the residence of him, the said Edward J. Keating, upon said books, as No. 3127 North Twelfth street in said precinct as a qualified voter of said precinct, having the right to register and vote in said precinct, and the said judges and clerks of registration of said precinct aforesaid then and there did enter upon the registers, poll-books and books of registration of said precinct the name of the said Edward J. Keating as residing at said No. 3127 North Twelfth street, and as being a qualified voter having the right to register and vote in said precinct, and he, the said Edward J. Keating, then and there feloniously, wilfully, knowingly, unlawfully and fraudulently did write his name upon the said registers, poll-books and books of registration of said precinct as a qualified voter having the right to register and vote in said precinct by then and there writing the signature and name E. J. Keating upon said books in the margin provided for the signatures of qualified voters when registering; whereas in truth and in fact the said Edward J. Keating then and there did not reside at No. 3127 North Twelfth street, nor in said precinct, and had no right to register in said precinct, as he the said Edward J. Keating then and there well knew; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State."

To this information there was a plea of not guilty, and the trial proceeded. There were three witnesses introduced on the part of the State. The secretary of the board of election commissioners, who was the custodian of the registry books and records, identified certain registry books, and they were introduced in evidence, which tended to show that the defendant was registered in the ninth precinct of the second ward of the said city of St. Louis. There were two other witnesses who testified as to the acts and conduct of the defendant as well as the registering officers at the time of such registration. The testimony tending to show that defendant did not live in the ninth precinct of the second ward and at the place as is charged in the indictment he designated to the registering officers, consisted mainly of the testimony of Charles W. Woodcock, who testified for the State, who substantially stated that he knew the defendant lived...