State v. Miller, 132 Mo. 297

132 Mo. 297 | Mo. | 1896

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 jurors unknown) and did then and there fraudulently and feloniously hand in the said ballot to the said judges, with the fraudulent a!nd felonious intent that the same should be placed in the ballot box by the said judges, and did then and there fraudulently and feloniously cause and procure the said ballot to be marked, numbered, and put into the ballot box as one for a lawful and legal ballot, contrary,” etc.

The section of the statute on which this indictment is presumed to rest, reads this way: “Every person who shall, at any election held in pursuance of the laws of this state, or of any city or other municipality thereof, vote more than once, either at the same or a different place, or shall knowingly cast more than one ballot * * * shall be deemed guilty of a felony, and upon conviction shall be punished by imprisonment in the penitentiary not exceeding five years, or by imprisonment in the county jail not exceeding • one year, or by a fine of not less than fifty dollars, or by both such fine and imprisonment.” Sec. 3746, R. S. 1889.

The sufficiency of the indictment was questioned both by motion to quash and in arrest.

The defendant is not represented in this court, and so the task devolves on us, under the statute, to see if we can discover any material defects which authorize a reversal of the judgment rendered.

Looking for such defects, as is our duty, we need not go further than the indictment aforesaid. In the commencement of that portion of the quoted section it is observable that two offenses are created and made punishable: One arises where a person shall uvote more than once” and the other where a person “shall knowingly cast more than one ballot.” It is plain beyond expression that the indictment charges neither one offense nor the other.

It does not charge the first because it uses no such language as the statute employs, nor, for that matter,. even equivalent words. It does not charge the second offense because it does not charge that defendant “east more than one ballot;” nor had it done so would it have filled the measure of statutory requirement because of lacking the indispensable word liknowingly.”

“The statutory indictment must specify on its face £the criminal nature and degree of the offense, which are conclusions of law from the facts; and also the particular facts and circumstances which render the defendant guilty of that offense.’ ” 1 Bishop Crim. Proc. [3 Ed.], sec. 625.

In order to make an indictment based upon a statute properly charge a crime, “the defendant must be specially brought within all the material words of the statute; and nothing can betaken by intendment.” Whart. Crim. Pl. & Prac. [9 Ed.], sec. 220. See, also, State v. Sekrit, 130 Mo. 401; State v. Hayward, 83 Mo. 299, and cases cited.

As the indictment charges no offense under the statute, it is needless to examine the testimony adduced at the trial.' Judgment reversed and prisoner discharged.