The State v. Walsh
| Decision Date | 14 May 1907 |
| Parties | THE STATE v. PETER WALSH, Jr., Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow Judge.
Reversed.
Alphonso Howe for appellant.
(1) The information, particularly the second count, is defective in that it charges that defendant did not reside, etc "nor in said precinct." The statute permits registration when one has commenced to reside. The information makes no distinction between right to register and right to vote. It fails to allege that the ninth precinct of the second ward was an "election precinct," or 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 in person for registration before the "precinct board of registration," or that defendant signed his name to the "original book of registry," etc., or that the defendant had no "lawful" right to register in said precinct. Laws 1903, p. 177, sec. 11; State v. Meysenberg, 171 Mo 1; State v. Miller, 132 Mo. 297; State v. Etchman, 184 Mo. 193; State v. Kyle, 177 Mo. 659; State v. Hagan, 164 Mo. 654; State v. Keating, 202 Mo. 197. (2) The court erred in refusing to give defendant's instruction in the nature of a demurrer at the close of the State's case. There was no proof of fraudulent registration. (3) The court erred in permitting witness Bigemann to testify as to conversation with the middle-aged lady at 3129 North Twelfth street to the effect that Peter Walsh, Jr., lived there and in refusing to strike out the incompetent testimony after it was given. Defendant was not present and certainly could not be bound by what some third party would say.
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. (2) There was substantial evidence of defendant's guilt. It was clearly shown that he registered in a ward and precinct where he did not reside; in fact, this was conceded by him at the trial. The only excuse offered by him for this conduct was that he made up his mind to change his residence, and that this mental condition was brought about on the registration day, after he had already registered in the precinct where he resided. Without notifying any of the city officers of his intention to move, and without even asking to have the registration books corrected, he suddenly concluded to remain where he then resided. It is a singular fact, however, that the defendant selected his father's place where he falsely registered, and that his father had the same name as defendant, and that others were in the habit of falsely registering from that place. And defendant's father, who testified to defendant's intentions, is the same person who has signed the bonds of others who have been charged and convicted of false registration, and who falsely stated that they resided at the home of defendant's father. It may well be said that the defense interposed was worse than no defense, and materially aided the State in making a strong case against the defendant. The evidence of defendant's guilt was positive and sufficient to convince even the most skeptical. And, where there is substantial evidence of his guilt, the judgment will be affirmed by this 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.
On the 19th day of September, 1905, the circuit attorney of the city of St. Louis filed an information, duly verified, in two counts, the first of which charged the defendant with unlawfully, feloniously, knowingly and fraudulently registering in two election precincts in St. Louis on the same day, the second count of the information charging that the defendant unlawfully and fraudulently registered in a precinct in which he did not reside. At the December term, 1905, of the circuit court of said city the defendant was tried and convicted under the second count of the information, and his punishment assessed at imprisonment in the penitentiary for two years. Defendant's motion for new trial and in arrest being overruled, he appealed.
The said second count of the information is 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 by and before the duly appointed and acting judges, clerks and officers of registration of said precinct and ward; and that Peter Walsh, Jr., on the 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 Peter Walsh, Jr., and his residence as No. 3129 North Twelfth street, in said precinct, and then and there request said officers of registration to then and there write the name of him, the said Peter Walsh, Jr., upon the registers, poll-books and books of registration of said precinct and to enter the residence of him, the said Peter Walsh, Jr., upon said books, as No. 3129 North Twelth 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 Peter Walsh, Jr., as residing at No. 3129 North Twelfth street, and as being a qualified voter, having the right to register and vote in said precinct, and he, the said Peter Walsh, Jr., 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, Peter Walsh, upon said books in the margin provided for the signature of qualified voters when registering; whereas, in truth and in fact the said Peter Walsh, Jr., then and there did not reside at No. 3129 North Twelfth street, nor in the said precinct and had no right to register in said precinct as he, the said Peter Walsh, Jr., 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."
The State's evidence tended to show that a general registration of voters was held in the city of St. Louis on the 19th day of September, 1904, and in the twelfth precinct of the seventeenth ward, and in the ninth precinct of the second ward in said city. That on said day the defendant appeared before the judges and clerks of registration at the polling place in the twelfth precinct of the seventeenth ward, was sworn, and his name entered in the registration book as a qualified voter, the defendant giving his name as Peter Walsh, and his address as 2341 Madison street; that on the same day defendant in like manner registered as a qualified voter in the ninth precinct of the second ward, except that his name was entered as Peter Walsh, Jr., and his residence as 3129 North Twelfth street. In support of the above facts the State introduced in evidence four books identified as the books used by the judges and clerks at said election precincts during the registration held on said 19th day of September. It also appeared from the evidence that defendant's father, whose name was Peter Walsh, lived at 3129 North Twelfth street.
The defendant testified in his own behalf that he was born in St Louis, and lived there all his life; that he was a police officer and had been such for six years; that he was married in February, 1904, and at the time of his marriage was living at No. 3129 North Twelfth street in his father's house, and had lived there with his father about sixteen years; that after his marriage he lived there until the 1st of April, 1904, when he moved to 2341 Madison street. His wife wanted him to get a house close to where her mother lived on that street, as he worked at night every three months; that in the police...
To continue reading
Request your trial