State v. Weisman

FERRISS, J. Convicted in the circuit court of the city of St. Louis of the crime of fraudulent registration, and sentenced upon the verdict of the jury to two years in the penitentiary, defendant appeals. The State gave in testimony tending to prove that on the 18th day of February, 1909, a general registration of electors being in progress in the various precincts in the city of St. Louis, the defendant procured and incited a gang of negroes to fraudulently register in several precincts, some in precincts other than where they resided, and some in names other than their own, and that there was a common scheme to violate the registration law, participated in by the members of this gang and by the defendant. The particular case upon which defendant was tried was this: One member of this conspiracy, Percy Everson, registered in the sixth precinct of the third ward, giving his residence as 1012 Carr street, which number was in such precinct, when in fact he did not reside at such number nor within such precinct at all. The indictment charged such fact, with proper allegations of fraudulent knowledge and purpose, also that the defendant “did unlawfully, feloniously and willfully incite, move, procure, aid, counsel, hire and command the said Percy Everson to do and commit said felony. ’ ’ — 553 — The testimony for the State was elicited from several members of the gang, including Percy Everson, all of whom implicated the defendant as the* moving spirit. These witnesses all admitted on the stand-that they had testified to the contrary of their present evidence before the grand jury and on former trials, and two of them that they had pleaded guilty to perjury committed at such former hearings. Witness Isabel testified that he was then under'indictment for perjury in this matter. There was also testimony given in by the circuit attorney that defendant had confessed the crime to him. Evidence was admitted on the part of the State that the said Percy Everson and others of the gang had registered on this same day at other precincts, and in false names. Defendant did not testify. He produced testimony tending to prove good character, and also to establish an alibi. The court gave seventeen instructions, and refused twelve that were requested by defendant. The defendant in his brief presents, with the ability and candor that uniformly characterize the writer thereof, several points which we will proceed-to discuss. I. It is contended that the court erred in permitting evidence to go to the jury tending to prove that the alleged principal, Everson, on the same day, fraudulently registered in two preeints other than the 6th precinct of the third ward charged in the indictment, and erred also in permitting the State to show that others of the alleged gang to which Everson belonged, namely Priest and Bennett, fraudulently registered during that same day. It is argued that proof that the defendant incited and procured such other registrations does not tend to prove that he incited Ever-son to register in the aforesaid 6th precinct. In this — 554 — connection it is also argned that the eleventh instruction given for the State was erroneous in that it permitted the jury to infer that “if appellant was'guilty of a- felonious intent in inciting Priest or Bennett to register, why, then, he must have had a felonious intent in inciting Everson to do so.” Counsel argues that if there was evidence tending to show that defendant incited Everson to register in the 6th precinct, this was enough, and that testimony as to other fraudulent registrations by Everson and others was “unnecessary,” and therefore incompetent. It is true that, if defendant feloniously incited Everson to. fraudulently register in the 6th precinct, and if he did so register, a case is made out for the State; that is, the charge in the indictment. It by no .means follows, however, that in attempting to prove this charge, the State is confined to the act of registration by Everson in the sixth precinct. Whether proof is or is not necessary is not a proper test of its competency. Either party may strengthen his case by all proper and relevant testimony. The testimony so objected to was admitted on the theory that 'it was so related to the offense charged in the indictment as to throw light upon the intent with which Everson registered in the sixth precinct, and also upon the intent, with which defendant incited such registration. It was necessary that the State show that the registration charged in the indictment was fraudulent on the part of both Everson and the defendant, to negative mistake. An ignorant man might by honest error register in the wrong precinct; but if, on the same day, he registers in two other precincts, this fact would certainly tend to show a criminal intent in each case. The evidence for the State tends to show that the defendant instigated the offenses committed byEverson, Priest, Bennett and others, all of whom, with defendant, were parties to a conspiracy to procure false — 555 — registrations on the day in question. Consequently, the act of each conspirator was in law the act of defendant. Proof that members of this conspiracy committed various felonious acts in furtherance of the common plan, is competent as bearing upon and explaining the act charged in the indictment, which also was committed in furtherance of the common plan. It is competent to prove other acts so related to the act on trial as to show motive, intent, absence of mistake, a common scheme embracing two or more crimes so related to each other that proof of one tends to establish the other, as also to prove the identity of the person charged with the crime, even if such evidence tends to establish other specific crimes. [State v. Bailey, 190 Mo. l. c. 280; State v. Hyde, 234 Mo. l. c. 224.] Prom the foregoing it will be perceived that the evidence complained of was competent upon grounds other than intent, to which ground the court confined it in instruction numbered 11 for the State. In so confining it, the court favored the defendant. The evidence was properly admitted, and defendant cannot complain of said instruction, which reads as follows: “The jury are instructed .that the only question before the jury is the guilt or innocence of Joseph T. Weisman of the offense charged in the indictment, that is, unlawfully, wrongfully and intentionally procuring, aiding or counseling Percy Everson to unlawfully, wrongfully, intentionally, falsely and fraudulently register in the sixth election precinct of the third ward of the city of St. Louis, in the State of Missouri, not having a lawful right to register therein, and the jury are instructed that the evidence of other similar offenses committed on or about the same day by the defendant, acting alone or acting jointly with others, if the jury believe from the evidence that other similar offenses were so committed, was admitted for the purpose of showing the intent with which the defendant, Joseph T. Weisman, acted in this case, and for the — 556 — purpose of showing a series of offenses of the same character as throwing light on the question of his guilt or innocence of the offense charged in the indictment herein, and must be considered by the jury for this purpose only, and if the jury find from the evidence that the said Joseph T. Weisman did not commit the offense as charged in the indictment in this case, and as defined in these instructions, they will find him not guilty. ’ ’ • II. The next complaint is that the State was permittted to prove good character for its witnesses before their character was assailed by the defense. This is what happened: Witness Isabel admitted on his cross-examination by defendant that he was under indictment for perjury committed upon a former hearing. On re-examination by the State, the witness was permitted, over defendant’s objection, to testify that he had never been convicted of any offense. Another witness for the State, Claud Benton, testified on cross-examination that he had been convicted of perjury committed before the grand jury in connection with the offense with which defendant was charged. The State, on re-direct examination, showed by the witness that he had never before been convicted of any offense. Counsel for defendant seeks to draw a distinction between an attack on the credibility of a witness and an attack on his character. Without regard to the validity of such distinction, it is clear that the object of the cross-examination was to discredit the witness before the jury. It would have been competent under the authorities, and upon reason, for the State to sus-, tain the witness by proof, of good character. That right exists whenever evidence is introduced discrediting the witness, whether such evidence is in the form of a general attack on the character of the witness, or directed to specific acts which discredit the witness. — 557 — [Wick & Co. v. Baldwin, 51 Ohio St. 51; Berryman v. Cox, 73 Mo. App. l. c. 74; Wigmore on Ev., sec. 1106.] 'We are not prepared to say that when, on cross-examination, it is shown that a defendant has suffered a conviction, it is error to show in rebuttal that such conviction is the first and only one. Nothing appearing beyond the fact that the defendant was convicted of a particular offense at a particular time, the presumption would be that he had not been convicted before that time of any other offense. The negative fact elicted by the State, and objected to in this case, therefore adds nothing to and detracts nothing from the force of the fact brought out in cross-examination. It is unimportant, could not affect the jury, and does not amount to reversible error. Furthermore, as to the case of witness Isabel, the evidence of his having been indicted was incompetent (State v. Wigger, 196 Mo. 98), and the State could show by the witness that he had not been convicted under the indictment. We therefore rule this point against the defendant. III. Instruction numbered 10 given for the State reads thus: “The jury are instructed that in making up your verdict it is your duty toAonsider exclusively the question of the guilt or innocence of this defendant, under the evidence and the law as declared in these instructions, without regard to the question of the probable guilt or innocence of any other person of any crime, except that you are required to consider the probability of the guilt of any witness testifying herein, as disclosed in evidence of criminal connection with the offense charged, or his guilt of any other criminal offense, as tending to affect the credibility of such witness and the weight to be given to his testimony.” It is urged that this instruction ignores the question of the guilt of the principal in the felony, Percy Everson, upon the establishment of which the guilt of — 558 — defendant depended. We have heretofore criticised the phraseology of this instruction in State v. Bobbitt, 228 Mo. l. c. 267, and State v. Robinson, 236 Mo. 712, but in both cases held that it was not reversible error. Instruction numbered 5, for the State, plainly tells the jury that they cannot convict defendant unless and until they find that Everson had committed the acts charged against him in the indictment. The jury could not fail to understand that it was essential to find the guilt of Everson. There was much testimony in the ease touching the guilt of other members of the conspiracy, and which was admitted for reasons discussed above. For the purpose of guarding defendant against any unfavorable inference against him that might possibly be drawn by the jury from the mere fact that these other crimes had been committed, this instruction, numbered 10', sought to confine their attention to the question of the guilt of defendant as charged, and as defined in other .instructions, including instruction numbered 5, which involved the finding that Everson was also guilty. Instruction numbered 11 amplified this matter further as to the limitations within whioh the jury should consider evidence of other crimes. The instructions must be read together and construed as a whole, and as they would impress men of ordinary intelligence. To permit parties to single out an instruction, and object thereto because a strained possible construction put upon it, standing by itself, might be unfavorable or misleading, would make an intelligent system of written instructions impracticable if not impossible. This instruction was favorable to defendant and, considered in connection with the others, could not mislead the jury. IV. Defendant requested instructions calling attention to testimony to the effect that on a former occasion witnesses had given testimony contradictory to — 559 — that given at the trial, and telling the jury that if they so found, they were at liberty to disregard the present testimony of such witnesses. We think the attention of the jury was sufficiently directed to this evidence when they were instructed that, in passing upon the credibility of witnesses, they should consider “all the facts and circumstances given in evidence.” It must be assumed that jurors have ordinary intelligence. There would be no limit to the number of instructions if it were permissible to instruct as to the effect of each item of testimony. Such instructions are not permitted under our system of practice. These observations apply to and dispose of the objections to the action of the court in refusing other instructions requested by defendant. V. We have examined the record otherwise, be-' yond the points suggested in defendant’s brief. Defendant was fairly tried and was convicted upon ample evidence to sustain the verdict of the jury, assuming, as we must, that the jury believed, as they had a right to believe, the testimony given in by the State, notwithstanding the wicked and profligate character of the witnesses. Finding no error in the record, the judgment is affirmed. Kennish, P. J., and Brown, J., concur.