223 Mo. 86 | Mo. | 1909
On September 19, 1905, the circuit attorney of St. Louis, filed in the circuit court an information in two counts, attempting to charge the defendant in the first count with unlawfully registering in two separate election precincts, to-wit, in the fourth and ninth precincts of the second ward, and in the second count attempting to charge him with the offense of fraudulently registering in an election precinct, to-wit, the ninth precinct of the second ward,
Thereupon, on the 6th day of January, 1908, the circuit attorney filed an amended information, duly verified, in two counts, charging in the first count the offense that he attempted to charge in the first count in the original information, and on which there had been no finding by the jury on the first trial, and in the second count charging the offense he attempted to charge in the second count of the original information. To this information defendant filed his plea in bar, alleging that although the original information contained two counts they covered but one and the same transaction and were supported by one and the same evidence, and the silence of the verdict as to the first count at the former trial amounted to a verdict of not guilty on that count, and therefore operated as an acquittal on both counts of the amended information. To this plea the State entered a general denial, and the defendant thereupon demanded that the issues thus presented be tried separate and apart from the general issue tendered by the plea of not guilty.
This the court refused to do, and defendant being arraigned, and pleading not guilty, the cause went to trial, and at the close of all the evidence the court sustained the plea as to the first count, and withdrew same from the consideration of the jury.
On the second count the defendant was convicted, and his punishment assessed at three years ’ imprisonment in the penitentiary. After unsuccessful motions for a new trial and in arrest of judgment, he was sentenced on the verdict and has appealed to this court.
The testimony on the part of the State tended to
All persons applying for registration were required to state under oath their place of residence, name, date of birth, age and occupation, duration of residence in the precinct, city and State, and certain others matters touching their qualification and right to register as, voters. These questions were propounded by one of the judges and the answers were recorded in books prepared and kept for that purpose and if the answers were satisfactory to the judges, the applicant was declared a qualified voter by entering the word “yes” opposite his name in the column, headed by the words “qualified voters,” and the applicant was then permitted to sign his name on the register in the proper place as a qualified voter.
On the 19th of September, 1904, defendant appeared before the judges and clerks of registration of the ninth election precinct of the second ward and requested to be permitted to register. After being sworn to truthfully answer questions touching his right to register, he stated among other things that his name was Edward J. Keating. That he resided at number 3127 South Twelfth street in said ninth election precinct of said second ward; that he was twenty-three years of age; that his occupation was that of bartender; that he was born in Missouri, and had resided in said election precinct for ten years and in the city of St. Louis and State of Missouri for twenty-three years. These answers were written, by the clerk, in the registration record, at the proper place on said book, and in the column for qualified voters defendant
The testimony on the part of the State then tended’to show that the defendant’s residence was not in the ninth election precinct, hut that he was a young man and lived with his parents at 812 Wright street in the fourth election precinct of the second ward. The testimony also tended to show that defendant made application for registration in the fourth precinct of the second ward and stated that he resided at 812 Wright street. He offered no evidence in his own behalf.
I. The information conformed to the rulings of this court on the former appeal in State v. Keating, 202 Mo. 197, and stated with particularity the doing by the defendant of all the acts necessary to registration within the meaning of the Act of 1903. [Laws of Missouri, 1903, pp. 177 and 178, sec. 2120j.]
The information did not allege that the defendant was sworn when he made application for registration, and before he answered' the necessary questions, but as held in State v. Cummings, 206 Mo. l. c. 624, 625, it was not essential that he do so, as this provision of the statute was one directed solely to the registration officers.
II. In regard to the special plea in bar, to-wit, an acquittal on the former trial, it is sufficient to say that the legal efficiency of the record of the former trial offered to sustain the acquittal from the crime charged in the second information, was entirely a question of law which the court was bound to decide. The identity of the prisoner and the record of the former information, trial and acquittal, were all admitted by the State, and there was nothing for a jury to pass upon. [State v. Williams, 152 Mo. l. c. 120; State v. Manning, 168
The substantial question involved is, did the court correctly hold that the said proceedings constituted no obstacle to a trial of the defendant on the new information? On the former appeal it was ruled that the information was insufficient to sustain the verdict and sentence and for that reason the judgment was reversed and the cause remanded with permission to the circuit attorney to file a new information if he thought fit. Without restating the doctrine and the reasons in support thereof in regard to what constituted jeopardy, we will content ourselves by adopting the language of Judge Philips in State v. Hays, 78 Mo. l. c. 605, 606, to-wit: “It is sufficient, for the purposes of this case, to say that if the former indictment had been sufficient to sustain a conviction, and its further prosecution had been voluntarily abandoned by the State after the impaneling of the jury, and the reading of the indictment, the defendant could not again be exposed. to conviction upon the same charge. Cooley,, in his admirable work on Constitutional Limitations, page 327, very succinctly asserts that a person is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon an indictment which is sufficient in form and substance to sustain a conviction, and a jury has been charged with his deliverance. ‘And a jury is said to be thus charged when they have been impaneled and sworn.’ There are exceptions to this general rule, among which is, that if the jury are discharged with the consent of defendant, expressed or implied; or if after verdict of guilty the same has been set aside on defendant’s motion for a new trial, or the judgment arrested. [Commonwealth v. Stowell, 9 Met. 572; State v. Slack, 6 Ala. 676.]” It is the accepted doctrine that in order for a former trial and acquittal or conviction to be invoked on a plea of former jeopardy, it is essential that the former
III. In regard to the motion to elect, it suffices to say that the defendant cannot complain for the reason that the court withdrew the first count from the jury’s consideration, and no possible harm could have resulted to him from the alleged misjoinder of the two counts. [State v. Richmond, 186 Mo. l. c. 81; State v. Carragin, 210 Mo. l. c. 365.]
It remains only to 'add that the arraignment was sufficient and in proper form and the evidence amply full to support the verdict.
We have carefully examined the record and have passed upon all the alleged errors assigned' in the motion for new trial which appear to us to have had any merit in them.
The judgment is affirmed.