The State v. Miller

• Decision Date: 04 February 1896
• Citation: 33 S.W. 1149,132 Mo. 297
• Parties: The State v. Miller, Appellant
• Court: Missouri Supreme Court

33 S.W. 1149

132 Mo. 297

The State v. Miller, Appellant

Supreme Court of Missouri, Second Division

February 4, 1896

Appeal from St. Louis Criminal Court. -- Hon. Henry L. Edmunds Judge.

Reversed.

R. F Walker, attorney general, Wm. Zachritz, circuit attorney, and C. O. Bishop for the state.

(1) The indictment is sufficient in all respects, and is even more comprehensive in its allegations than is required by the statute. It is not necessary under the section (R. S. 3746) to state whether the accused voted a second time in his own name, or in the name of another person; nor that he voted more than once at the same polling place, or at different polling places -- it is sufficient to aver that at an election held pursuant to law he voted more than once. Nor is it necessary to set out the names of the judges of election since they are in nowise affected by the act of the accused, which is by statute made an offense. (2) The objection made and exception saved to the remarks of prosecuting counsel in opening the case to the jury are not preserved in the motion for new trial. (3) It was perfectly competent to show that appellant, at the election held on the sixth day of November, 1894, voted more than once, that being the offense with which he was charged under the statute, and, therefore, that he voted oftener than charged specifically in the indictment, both as making out the offense against which the statute is leveled and as showing the fraudulent purpose and intent of the accused. The statute makes it an offense to vote more than once, either at the same or a different place, hence it was competent to show that the accused voted any number of times more than once and at various places. Moreover, the question asked regarding the voting at the precinct number 2 was not objected to by the appellant, nor was the court moved to strike out the answer. (4) There was no testimony offered by the appellant that was excluded by the court, except the offer to introduce the naturalization papers of his father, which were wholly immaterial and irrelevant. (5) The instructions fully averred the law of the case, and were in all particulars correct.

OPINION

Sherwood, J.

Defendant was indicted for fraudulent voting, and being found guilty, there was awarded to him two years' imprisonment in the penitentiary, and he appeals from that judgment. The indictment charges substantially as follows:

"That on the sixth day of November, 1894, a general election was held in the city of St. Louis, under the constitution and laws of this state, for certain state officers; that defendant, on said day, in the city of St Louis, did appear at polling place designated as precinct number 1, before the judges and clerks of election of the first ward of said city in and for said polling place, and did then and there vote and give in his ballot, which was numbered, marked, and placed in the ballot box by said judges; and that thereafter, on the same day, he appeared at said polling place and fraudulently and feloniously applied for and received a ballot paper in the name of a person other than himself (which said name was to the grand...