State v. Tiernan

GANTT, P. J.

On the 21st day of September, 1908, the grand jury of the city of St. Lonis returned an indictment, charging defendant, William Tiernan, with fraudulently registering under a name not his own in the Eighth election precinct of the Fifteenth ward of the city of St. Louis.

Defendant was arraigned and pleaded not guilty. A jury was impaneled and sworn to try the issue thus made. Their deliberations resulted in a verdict of guilty and the infliction upon defendant of a penalty of three years ’ imprisonment in the penitentiary. Motions for new trial and in arrest of judgment were duly filed and overruled, judgment was entered upon the verdict and defendant appealed. In due time defendant filed his bill of exceptions.

The State’s evidence tended to show that a general registration of voters was held in the city of St. Louis on the 14th, 15th, 16th and 17th of September, ■1908; that the registration booth for the Eighth precinct of the Fifteenth ward' in said city was at 819 North Twenty-first Street; the registration judges in the precinct named were John J. Hickey, August O. Huesser, Fred Reitz and Joseph Byrne, and the clerks were Louis Hoffman and John Gallager, all duly commissioned except Byrne, who was sworn in to fill a vacancy. The judges were furnished with cards containing a form of oath to be administered to those applying for registration, and also furnished with a list of questions as to their qualifications, to be answered by such applicants.

On one of the two days mentioned, while the registration was in progress, defendant presented himself before the judges and clerks of registration of the Eighth precinct of the Fifteenth ward of the city of St. Louis at 819 North Twenty-first Street, as charged. The prescribed oath was administered to him and the formal questions propounded as to his qualifications to vote at that place. His answers were such as, if *147 true, to show him to he a qualified voter of said precinct and ward. Defendant stated, in answer to the questions of the judges, that his name was “ Frank Clay.” He then signed the name ‘‘Frank Clay” upon the registration books. He was arrested on the spot. Being asked Ms name by the arresting officer, defendant answered that it was “Frank Clay.” He was taken to headquarters, there gave his name as ‘ ‘ William Tiernan,” and stated that he lived at 723 North Twenty-first Street. It was shown that no such number in fact existed, and the occupant of the house at number 721 had never seen defendant before the trial. Defendant was identified as William Tiernan.

Defendant offered no evidence, but asked the court to direct an acquittal. The request was refused. The court instructed the jury as to the law in the case, including the presumption of innocence, reasonable doubt, the credibility of the witnesses, argument of counsel, etc. To all these instructions defendant, by his counsel, saved his exceptions. He also saved certain exceptions to portions of the argument of the circuit attorney.

I. The indictment is not assailed. It is identical in its charging parts with the information approved by this court in State v. Cummings, 206 Mo. 613, 616 , and correctly charges an offense under section 2120j of the Act of March 24, 1903, Laws 1903, p. 158.

No error is suggested in the record proper, and we have been unable to discover any. The arraignment of defendant, the impaneling of the jury, the return of the verdict and the sentence were all .in the usual and regular form.

II. The defendant has assigned various errors and they will be noted in their order.

John Ellsperman, Jr., testified he was Secretary of the Board of Election Commissioners of the city of St. Louis, and identified the records of his office offer *148 ed in evidence of the registration lists made on September 14th, 15th, 16th, and 17th, 1908-, of persons residing in the Eighth precinct of the Fifteenth ward of the city of St. Louis. ■ He also identified the ward lines or boundaries of the Eighth precinct of the Fifteenth ward. He was then asked if there was a general registration of voters in said city in all election precincts on the said date, to which defendant objected as calling for incompetent testimony and not the best way to prove it. The objection was overruled and properly so. Any witness who knew the facts could have testified there was a general registration on those days and no one naturally was better able to testify to that fact than the secretary of the board under whose supervision the registration was made.

III. There is no merit in the insistence that there was a failure to show that the offense was committed in the Eighth election- precinct. The witness had stated there was a registration on said days in all the election precincts of the city and his attention was then called to the precincts by number. It was wholly unneccessary to repeat the word “election,” every time he mentioned the precinct.

TV. As to the contention that the indictment was found without any evidence before the grand jury and that the names of the registration officers were not indorsed upon the indictment, it suffices to say it is bottomed upon an admission of the Circuit Attorney which falls far short of the insistence of counsel for defendant. While the admission may disclose a practice which should be avoided in the future, it comes short of admitting that the indictment was found without evidence. Moreover, no complaint was made on this point, either by timely motion to quash, or in either the motion for new trial or in arrest.

Y. Equally unavailing is the assignment now made against the practice of taking the defendant *149 when he was arrested to the office of the Circuit Attorney to get him to make a statement and the statement of the Circuit Attorney on that point, for the reason that no such grounds are assigned in the motion for new trial.

We have considered the whole record and find no reversible error. The judgment is affirmed.

Burgess and Fox, JJ., concur.