text:
    E. R. Johnson, Appellee, v. Virginia Johnson, Appellant.
    Gen. No. 9,714.

      Opinion filed January 27, 1942.
    Rehearing denied February 27, 1942.
    William D. Knight, of Rockford, for appellant.
    Hall & Dusher, of Rockford, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

This cause is here by appeal from a decree of the circuit court of Winnebago county granting appellee a divorce from appellant on the ground of desertion.

Appellee was horn and raised at Rockford in Winnebago county. From there he entered the United States Naval Academy at Annapolis in 1914, and has been in the navy ever since his graduation, now holding the rank of Commander. His duties required him to move from place to place over a considerable part of the world. His first assignment was to the battle ship Nebraska with the fleet based in the York River about 35 miles from Hampton, Virginia. He and appellant were married in June 1918, at Hampton, where appellant lived with her parents. She has lived there ever since, with the exception of three short periods hereinafter mentioned. The parties have a son, born in 1924, and a daughter, born in 1930. The custody of the children is not involved in this suit.

The first ground urged for reversal is that the court was without jurisdiction because appellant did not establish that he was a bona fide resident of Winnebago county at the time of instituting and during the pend-ency of this suit. He was unquestionably a resident of that county when he entered the naval service. The only times when he and appellant maintained a semblance of housekeeping were: First, from September 1919, to February 1920, when they lived in a one-room apartment house in Philadelphia while his ship was in the navy yard there; second, at Annapolis from the autumn of 1923 to June 1924, where they lived in an apartment while he took postgraduate work at the Naval Academy; and third, at Norfolk, Virginia, where they bought some furniture and rented an apartment from May 1929, until May 1930, while he was assigned to shore duty at the Norfolk navy yard, after which the furniture was moved to the home of appellant’s parents at Hampton. At all other times appellee was either on shipboard or shore duty, living alone. On shore duty in San Francisco he lived in an apartment. In Washington, D. C. he stayed at the University Club, and since 1940 has been on duty as a student at the Naval War College. The fact that he has a bank account in Annapolis, Maryland, none in Rockford, Illinois, has no charge account in any Rockford store, has never asked appellant to live with him in Illinois and never voted in Illinois since his marriage are not sufficient to overcome or discredit his positive testimony that Rockford has always been his legal residence and he has always claimed it as such. None of the facts in evidence tend to show he ever intended to abandon his residence at Rockford, or to set up a permanent residence or abode elsewhere.

The place of residence of a party is a matter of intention, and when the residence is once established, it is not lost by a temporary departure from that place, but remains his residence until he has acquired another residence, which does not mean merely a temporary abode. (Tobias v. Tobias, 208 Ill. App. 539.) The same is true of a domicile. (Miller v. Brinton, 294 Ill. 177; Hayes v. Hayes, 74 Ill. 312.)

Section 4 of article 7 of the Constitution of.this State provides: “No elector shall be deemed to have lost his residence in this State by reason of his absence on business of the United States, or of this State, or in the military or naval service of the United States.” Conversely, section 5 of the same article provides: “No soldier, seaman or marine in the army or navy of the United States shall be deemed a resident of this State in consequence of being stationed therein.” These provisions cover the entire field of change of residence, so far as Illinois is concerned, by one in the naval service of the United States. A case squarely in point is Knowlton v. Knowlton, 155 Ill. 158, where it is held that the residence of one’s origin is not lost, for the purpose of a petition for divorce, by reason of duties outside this State, in the naval service, even though during part of the time the petitioner kept house with his wife in another State.

Over objection that it was not the best evidence, appellee was permitted to testify that every six months he is required to make a report to the navy department stating his place of residence, in which he has always stated it to be at Rockford, Illinois. No harm to appellent was occasioned by this testimony. There was ample evidence to sustain the finding.of residence without this. The claim as to want of jurisdiction is without merit.

On the merits of the charge of desertion the testimony shows that at the time of the marriage and for about one year afterward, appellee was doing duty on an Italian transport ship, visiting appellant at her parents’ home when his ship was in port. Then came the sojournment at Philadelphia already mentioned, until February 1920, after which, until June 1921, he was on a destroyer in the Eastern Mediterranean Sea near Constantinople. He was then transferred to the Asiatic fleet and spent five months in Philippine waters, from whence he was assigned to the U. S. S. Albany, based at Vladivostok until February 1922. He then returned to Manila and was sent on other naval vessels to South China rivers and to Hongkong until May 1923, when he was ordered to return to the United States, and arrived in San Francisco on August 1st. He stopped a short time in Rockford on his way back to the Naval Academy, where he took post graduate work until June 1924, during which time appellant was with him as before mentioned. He testified they were expecting the birth of their first child, and as he was going to New York to take further post graduate work, she said she would rather stay at home until the baby was born, and accordingly went to her parents at Hampton. He was in New York until June 1925. Averaging once a month, he visited her on week ends. Thereafter, for about three months he was at two large plants which manufacture electrical apparatus and then went to Hampton. From there they drove to Rockford where they spent about three weeks with his mother. He was then assigned to duty with the Atlantic fleet operating between Long Island Sound and Cuba for three years, at the conclusion of which the parties and their son again visited his mother at Rockford for one month. In October 1928, he was sent to the Navy Yard in Norfolk for shore duty, where the parties lived together as before stated. He testified that while there she expressed a desire to stay in Rockford for a year, to which he objected, as he wanted her to live with him in Norfolk, and the day before he was to leave Rockford, she said she wanted to return to Hampton, and they went back there; that she refused to go to Norfolk to live, and insisted upon staying with her parents at Hampton, and he visited her there on week ends for about six months. That he finally told her he would not be coming there any more, and on the following week end left the automobile and keys at her house and returned to Norfolk; that she called him the next day by telephone and said she had changed her mind and would come to Norfolk, which she did; that on more than one occasion while they lived there she told him she considered herself merely his servant, although he stated that he always treated her with respect and consideration and told her that he knew of nothing he did to cause her to think that, way. In May 1930, he was ordered to duty with the Pacific fleet, based at Long Beach, California. The household goods were sent to her parents’ home and he visited her there until he left for California shortly before the second child was born in July of that year. He testified she promised to come to him in California. He lived aboard a ship for three years and one month, and was then transferred to San Francisco, where he lived in an apartment for one year and ten and one-half months. He was then again assigned to sea duty which occupied the next three years and two months. He was then sent to Washington, D. C. in 1938, where he lived at the University Club. At the time of the trial he was on duty as a student at the Naval War College, where he went in 1940.

He testified he had not lived and cohabited with appellant since June 1930; that in July 1931, he wrote appellant asking her to come to California and make a home for him according to her promise, and offered to arrange transportation for the family and the household goods on an army or navy transport, with accommodations comparable to a first-class ocean liner; that he did not hear from her for three months, and then received a letter to the effect that she did not care to come, assigning as reasons, that the doctor told her the second year of a child’s life was very important; that she was afraid the child might get sick away from her father’s home; that she was afraid to travel with the children and to stay at home in Long Beach on any night when appellee might be away; that her father and mother were getting old and they might get sick while she was away, and she wanted to stay at home and take care of them. Appellee further testified that he replied, again reminding her of her promise, and that he could not compel her to come but would be very happy to have her do so; that she did not answer the letter for a month, and when she did, she said nothing on the subject; and that thereafter he did not hear from her until January 1934; that he had written her in June 1933, of his transfer to shore duty at San Francisco, giving her his address, but did not hear from her until January 1934, when she wrote him that she and the two children, with her two sisters would like to visit him for two weeks; that he replied, declining the visit, and said he would be delighted to have her come and live with him permanently in their home, but under no other conditions ; that a visit was not satisfactory and he wanted her to join him as he thought a wife should join a husband; and that he received no reply to that request.

A number of occurrences in 1938 and afterwards are stressed by appellant, particularly a letter from appellee to appellant dated October 10, 1939, not admitted in evidence, stating their present situation for many years had been unsatisfactory to him and had become intolerable, and requesting her to procure a divorce. Other incidents are his telling a telephone operator he did not desire to receive calls from Hampton, and a conference between the parties and their counsel at which he did not mention desertion. These matters are beside the mark. The statutory period had expired after his first request for her to live with him, made in July 1931, and the second like request made in January 1934. He was not obliged to keep the door open for her after the expiration of the statutory period. (Albee v. Albee, 141 Ill. 550; Silverstein v. Silverstein, 178 Ill. App. 145; Garvy v. Garvy, 282 Ill. App. 485.) Ever since their marriage, up to the time of the hearing, he has provided an allotment for her out of his pay, increasing it as his pay increased, and it was his habit to send the family his December check for a Christmas present. These facts do not affect the question of her desertion. (Elzas v. Elzas, 171 Ill. 632.) In oiir opinion, the testimony shows a desire on the part of appellant, without any reasonable cause, to live apart from appellee, increasing from a desire to an intention to do so, from the time they left Annapolis, culminating in complete desertion in July 1931. The testimony sufficiently supports the decree.

During the hearing of the testimony for appellee, appellant was called as an adverse witness and identified four letters she received from him. None of them bore upon the facts to which he testified concerning her refusal to live with him. He did not offer them in evidence. She testified she had received other letters from him but had thrown them away. Under such circumstances there was no error in permitting appellee to testify to the contents of such other letters.

At the close of the testimony for appellee, appellant’s' counsel made a motion to dismiss the complaint for the reason that the proof did not establish desertion and argued the motion. After some observations by the court, the motion was denied. Thereupon, appellee’s counsel offered her as a witness. Upon objection by appellant, and extensive argument, the motion was denied, as was also the admission in evidence of the letters identified by appellant, on the ground that her motion to dismiss amoiinted to submitting the cause to the court. Her counsel offered to withdraw the motion, and the offer was denied. It has been repeatedly held that such motions are unknown to chancery practice and amount to a submission of the cause to the chancellor. (Koebel v. Doyle, 256 Ill. 610; Abel v. Flesher, 296 Ill. 604; Laursen v. A. H. Memering & Co., 260 Ill. App. 515.) In Koebel v. Doyle, supra, the reason for the rule is stated to be that to permit such a motion would result in hearing a case piecemeal, the sustaining of a motion resulting in an appeal, and on reversal another hearing on more evidence, followed, perhaps, by another appeal. In Fewkes v. Borah, 376 Ill. 596, the court said: “The cause was on hearing before the chancellor and a motion at the close of plaintiff’s evidence is a submission of the case on its merits. If the motion is allowed and not sustained on review the proper judgment on review is to reverse the decree entered and direct a decree in accordance with the prayer of the complaint. ’ ’ We are not unmindful of the fact that subparagraph 4 of section 64 of-the Civil Practice Act [Jones Ill. Stats. Ann. 104.064], as amended July 21, 1941, provides for such a motion in a proceeding in equity, and that if the motion is denied, the defendant may adduce evidence in support of his defense, but the amending act did not take effect until January 1, 1942, and is not available to appellant. The action of the chancellor in refusing to permit appellant to testify and in denying admission in evidence of the letters identified by her, and in refusing to permit the withdrawal of the motion after it had been argued and passed upon was, therefore, not error.

Certain remarks of the chancellor during the trial are criticized as indicating appellant and her counsel did not receive the consideration to which they were entitled. The remarks of the chancellor indicate that he thought his ability to understand the particular question being argued was being disparaged and while couched in words not to be commended were not such as require a reversal of this decree, and it is, therefore, affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Scanlan

license: Public Domain

text:
    People of the State of Illinois ex rel. John S. Rusch, Appellee, v. Albert Ferro et al., Appellants.
    Gen. No. 41,404.

      Opinion filed February 10, 1942.
    Rehearing opinion filed and rehearing denied February 25, 1942.
    Joseph T. Harrington, of Chicago, for appellants.
    Thomas J. Courtney, State’s Attorney, for appellee; John F. Cashen, Jr., of Chicago, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

This is an appeal brought by Albert Ferro, Mary Nadine Segvich and Frank Guinta to reverse a judgment of the County court finding them guilty of contempt of the County court of Cook county. The judgment order sentenced respondents Ferro and Guinta to two years in the County jail and sentenced Mary Nadine Segvich to pay a fine of $1,500, and upon her failure to pay said fine that she be committed to the county jail of Cook county “until the said fine is satisfied, or paid, either by payment or service in the County Jail, said fine to be reduced at the rate of $3.00 for each day spent in the County Jail.” The trial court found that Bussell Ciamprone and Agnes Scheurer, respondents, had purged themselves of contempt and discharged them.

On April 4, 1939, a City election was held in the City of Chicago “for the election of various candidates for various city offices. ’ ’ The following named persons served as judges and clerks in the 53d precinct of the 11th ward in Chicago: Albert Ferro, Democratic Judge; Mary Nadine Segvich, Bepublican Judge; Frank Guinta, Bepublican Judge; Bussell Ciamprone, Democratic Clerk, and Agnes Scheurer, Bepublican Clerk. On December 2, 1939, John S. Busch, Chief Clerk of the Board of Election Commissioners of the City of Chicago, filed a verified petition charging the said five election officials with having knowingly, fraudulently and unlawfully (1) made a false canvass, (2) allowed illegal voting, (3) used dummy tally sheets, (4) allowed ballots to be taken from the polling place, (5) given illegal assistance to voters, (6) permitted outsiders to handle ballots, (7) permitted outsiders to change ballots, and (8) certified untrue return of votes cast. The respondents who were found guilty, and who will hereafter be referred to as respondents, filed a motion to quash or strike the petition and assigned many grounds in support of the same.

Bespondents contend that the evidence shows that the integrity of the ballots as evidence had been destroyed and that the court erred in admitting the ballots in evidence; that the findings and judgment of the trial court are contrary to the competent evidence. The three judges and the two clerks testified that there were no alterations or changes made upon any ballots by the judges or anyone else and that all of the erasures and alterations appearing upon the ballots at the time of the hearing were not upon the ballots when they were counted, wired and sealed in the ballot boxes on April 4, 1939; that after the polls were closed the only persons present in the polling place besides the officials were Tom Pellegrino, Joseph Munizzo and Carl Biandi, Democratic watchers; John Fratto, a Republican watcher; and Howard Anderson, a Chicago police officer. All of said last mentioned persons testified that they were standing or sitting about the table upon which the ballots were counted; that they watched the counting of the ballots; that there were no ballots marked or erasures made upon any ballot by any of the respondents or by anyone else; that no ballots were taken away from the table at any time during the count; that no one but the judges touched the ballots during the count; that it would have been impossible for a ballot to have been marked or an erasure made upon it without their knowledge. The respondents also contend that the direct testimony of the respondents and the five disinterested witnesses was not shaken upon cross-examination, and that no eyewitness to the count testified to any fact or circumstance that would tend to show that respondents failed to comply with the law in the performance of their duties as judges of election.

Both sides agree that upon the recount of the ballots before the trial court during the present proceedings 37 of the ballots showed erasures and alterations. On December 19, 1939, during the trial of the cause, respondents, as witnesses, recounted the ballots. They testified, inter alia, that the erasures and alterations which appeared upon the said ballots were not upon the ballots when they counted, tallied and deposited them in the ballot boxes on the night of the election. The petitioner contends that the testimony of respondents and the other witnesses as to what occurred in the polling place is “unadulterated perjury” and would not “convince anyone with an ounce of sense,” and that “in this case the ballots are the only evidence of the respondents’ corruptness and in themselves establish clearly and convincingly the guilt of the respondents of contempt of the County Court.” The implication in petitioner’s contention has not deterred us from giving the testimony of respondents and the other witnesses due consideration; at the same time, we have borne in mind that the ballots are the better evidence if their integrity, as evidence, has been properly preserved. Who were the respondents and the other witnesses who testified as to what occurred in the polling place? Albert Ferro, a respondent, was 26 years of age, married, and working as a truck driver for a commercial contracting company. He had lived in the neighborhood in question all his life and had served as a precinct election official at two prior elections. Mary Nadine Segvich, a respondent, was 25 years of age, lived in the neighborhood, and her husband, John S. Segvich, was an assembler, employed by John H. Kenney & Company. She had served as a judge of election in the same precinct at the Primary election in February, 1939. Frank Gfuinta, a respondent, had lived at 3258 Princeton avenue for 14 years. He was a truck driver for the Consolidated Freight Company and had been so employed for 8 years. He had served as an election official at the February, 1939, Primary election. Bussell Ciamprone, a respondent, was 23 years of age and lived at 3252 South Wells street, where he was born. He was a chauffeur for Frederick Brothers, at 5959 South Lowe avenue. Bespondent Scheurer, q clerk at the election, resided at 3207 South Shields avenue. She also served as an election official at the February, 1939, Primary and was well known in the Election Commissioners’ office. Before the election in question she went to the Election Commissioners’ office and asked to be appointed a watcher at the election. The Board, of its own motion, appointed her a clerk. Tom Pellegrino, a Democratic watcher, lived at 3211 South Wells street with his wife and children and was a truck driver employed by Ostermoor & Company. He finished his work as a truck driver at 4:30 p.m., April 4, 1939, and arrived at the polling place just before the polls closed and presented his credentials as a watcher. Joseph Munizzo, a Democratic watcher, lived at 325 West 31st street. He is a lawyer and at the time' of the election was an Assistant Attorney General of the State of Illinois, a position that he had filled for three and one-half years. Carl Michael Biandi, a witness on behalf of respondents, was a Democratic watcher at the election. He resided at 3222 South Wells street, where he had lived for 23 years. He was 30 years of age, married, and his family consisted of his wife and two daughters. He was employed by the City of Chicago in the Bureau of Water and had been so employed for 7 years. John Fratto lived at 3256 Princeton avenue. He was acting as a watcher for Dwight Green and had acted in the same capacity at the Primary election in February. Howard Anderson, who was 35 years of age, and lived at 7501 South Detroit street, had been a police officer for 11 years, and did not know that he was to be assigned to the precinct in question until the day before the election. No attempt was made to attack the reputation of any of the respondents or the other witnesses, and so far as the record shows they were all industrious, law-abiding citizens. After midnight, on December 3, 1939, all of the respondents, without warning of any kind, were arrested and confined for about ten hours; were then taken into the County court, notified of the filing of the petition against them, and admitted to bail. Mrs. Segvich was awakened from her sleep and arrested; she was obliged to leave at home a baby fifteen months old.

Respondents contend that the trial court, at the outset of the hearing, before any evidence had been heard, manifested plainly that he had a wrong theory of the law that governed the proceeding; that he started the hearing presuming the respondents guilty and requiring them to prove their innocence, and if they failed in that regard they would be found guilty. This contention seems to be well founded. At the commencement of the hearing respondents’ counsel called the court’s attention to the fact that he had filed a motion to dismiss or quash the petition. The following then occurred: “The Court: I understand the whole case, Mr. Harrington. The court is proceeding on the theory there is a violation in that the officials were guilty of misconduct or misbehavior in office. I have ruled that this [the motion] cannot be filed because the theory of the case is there has been fraud committed. Mr. Harrington: How do you know that, Judge? The Court: Because the charges are here and the evidence is here. It makes no difference whether it is 6 weeks or 6 months from now. As a matter of fact these men have been performing their services, they have not done the right thing, and certain votes have not been properly tallied. Mr. Harrington: How do you know that? The Court: That is the theory upon which I am proceeding. We are laying the proof before them, if they cannot make an explanation — Perhaps they'have a good explanation — ■ If not, then they will be found guilty. Let’s call these people' [the respondents] up and let’s bring in the evidence [the ballots] and see what they have done. Mr. Harrington: I would like to know, Judge.. The Court: All right. In other words I will rule on the motion to quash and to strike the petition, which is denied, and leave to file is denied.” The respondents who were judges of election, Ferro, Quinta and Segvich, were then called to the stand and examined by the court.

In People v. Spain, 307 Ill. 283, 292, the court, in stating the rights of a respondent in criminal contempt matters, said: “Proceedings of this character are of necessity summary, but that does not prevent the courts from giving the accused all his rights under the law. He must be given the fullest opportunity to defend himself. (Sherman v. People, 210 Ill. 552; Ex parte Sullivan, (Okla.) 138 Pac. 815.) Where one is charged with criminal contempt he is entitled to the same orderly trial accorded any other defendant. He is presumed to be innocent until his guilt is established beyond a reasonable doubt, and he cannot be compelled to give evidence against himself.” We have referred to the Spain case because it cites Sherman v. People, supra, in support of its statement of the law. The Sherman case involved a proceeding brought under the Election Act of 1885 to punish election officials for misbehavior as judges of election during a judicial election held June 1, 1903. In that case respondents, represented by William S. Forrest, an able and distinguished lawyer, contended that the provisions of the statute authorizing the court to proceed to hear the case without an affidavit or formal statement in writing as to the nature of the charge or accusation, without formal pleadings and upon oral testimony, in a summary manner, was unconstitutional, as it deprived respondents of their liberty without due process of law. The court, in answer to this contention, said (pp. 559, 560): “It is the intention of the act that proceedings under it shall be summary, vigorous and effective. The provisions complained of were enacted, evidently, for the purpose of preventing the delays which very formal proceedings require. There is nothing in the act to prevent the defendants from having all their rights under the law. The provisions must be given a reasonable construction. Under them the defendants are entitled to a full and impartial hearing, not only as to the exact nature of the charges against them, but they must be given the fullest opportunity of offering evidence in their own defense. After the case has been tried the defendants still have their right of appeal, where any errors which have been committed may be corrected.” The majority of the court held that the provision in question was not unconstitutional. (Cartwright and Scott, JJ., dissented.)

In a proceeding like the instant one the respondents are presumed to be innocent, and the burden is upon the petitioner to prove them guilty of the charge. They are, of course, entitled to a fair and impartial trial, and it would seem hardly necessary to state that the trial court, who was called upon to pass upon the guilt or innocence of respondents, should not assume the role of a prosecutor. Nor does the fact that the statute provides that the proceeding is to be tried in open court on oral testimony, in a summary way, without formal pleadings, authorize the .trial court to conduct the proceeding in an arbitrary way. As stated by the Supreme Court in Sherman v. People, supra (p. 559), the said provisions were enacted “for the purpose of preventing the delays which very formal proceedings require. ’ ’ The procedure adopted by the trial court in the instant case neither accorded with the statutory law, as interpreted by the Supreme Court, nor with certain fundamental principles of justice that govern every proceeding where the liberty of the citizen is at stake. Respondents were charged with conspiring to debauch the ballot box — an offense akin to treason, for it strikes at the very life of the Republic — and to affirm the findings of guilty it must appear that none of their fundamental rights were taken away or abridged. In respondents’ written motion to quash or strike the petition the trial court was informed that respondents claimed that the integrity of the ballots as evidence had not been preserved and that the ballots had been tampered with while they were in the custody of the Board of Election Commissioners. In spite of that knowledge the trial court at the outset of the proceedings assumed that the ballots presented in the trial court were in the same condition as they were when respondents turned them over to the Board of Election Commissioners; as-sinned, further, that respondents were guilty, and called upon them to make a “good explanation,” at the same time warning them that if they failed in that regard he would find them guilty. The trial court evidently did not believe the respondents could make a good defense to the charges.

After the instant appeal had been perfected the petitioner filed a motion in this cause that we enter an order dismissing the appeal upon the ground that there is no provision in the Election Act “for an appeal or for any review of a summary proceeding for contempt.” The motion was, of course, denied. (See Sherman v. People, supra, p. 560.) The contention that the judgment of the trial court in the instant proceeding is final accentuates the attitude of the trial court toward the respondents as expressed in his statement at the outset of the hearing. It would ill accord with the principles of American jurisprudence if a nisi prius judge had the power to sentence an election official to two years in jail for contempt and the official have no right to have the judgment reviewed.

In Sargent v. Newell, 368 Ill. 479, an election contest case, the court said (p. 481): “The rule is well established that in order for the recount of the ballots to overcome the returns of the election officials the contestant must prove that the ballots are those voted at the election and that they are in the same condition as they were when cast. The integrity of the ballots must be securely protected. In an election contest, it must be proved that they were so preserved that there was no reasonable opportunity for tampering with them. Actual tampering with the ballots need not be shown to destroy their evidentiary value, but it is enough that the opportunity for unlawful interference was afforded. (Bolton v. Whalen, 350 Ill. 50, and cases therein cited.) Applying the rule to this case, we are of the opinion that the evidentiary value of the ballots was destroyed. In Sibley v. Staiger, 347 Ill. 288, and Bullman v. Cooper, 362 id. 469, we held the mere fact that the ballots were kept in an unlocked receptacle for several days, when the seals remained intact, did not impair the evidentiary value of the ballots. Here, however, the uncontradicted evidence is that the seal at the time of this trial was not the seal that was put on the bag on the night of the election. If, then, the seal was removed, there can be no doubt that there was ample opportunity to tamper with the ballots. Under these circumstances the circuit court correctly held the ballots had not been properly preserved, and that the election returns were controlling.” (Italics ours.)

In Rogers v. Meade, 363 Ill. 630, also an election contest case, the court said (pp. 637, 638): “To obtain a reversal of the judgment the appellants contend that the integrity of the ballots in the twenty-ninth precinct was preserved, that there was a substantial compliance with the method of preservation prescribed by the Ballot law, and that they should therefore have been admitted as superior evidence of the result of the election in that particular precinct. The law applicable to the factual situation presented is well settled. The returns of the judges and clerks are prima facie evidence of the result of the election, but the ballots are the original evidence of the votes cast and in case of a contest are better evidence of the result if they have been preserved in the manner prescribed by the statute. (Talbott v. Thompson, 350 Ill. 86; Graham v. Peters, 248 id. 50.) Conversely, if the evidence discloses that the ballots were exposed to the reach of unauthorized persons, and the returns- are not discredited, the ballots will not be regarded as better evidence of the result of the election. (Talbott v. Thompson, supra; Bolton v. Whalen, 350 Ill. 50.) The question of whether the ballots have been properly preserved is in each action necessarily one of fact, to be determined by the evidence. (Bullman v. Cooper, 362 Ill. 469; Sibley v. Staiger, 347 id. 288.) The contestant is the moving party, and the burden rests upon him to prove that the ballots have been kept intact. It is not incumbent on the defendant to show that they have been changed, and unless the contestant shows that they have been kept in such a way that there was no reasonable opportunity for tampering with them they cannot overcome the returns. (Talbott v. Thompson, supra; Bolton v. Whalen, supra; Alexander v. Shaw, 344 Ill. 389; Graham v. Peters, supra.) Nor is it necessary that actual tampering with the ballots be shown, but it is enough to invalidate them as evidence that the opportunity for unlawful interference of unauthorized persons existed. (Talbott v. Thompson, supra; Alexander v. Shaw, supra; Rottner v. Buchner, 260 Ill. 475.) Application of the above cardinal principles to the facts in the present case necessarily leads to the conclusion that the ballots of the twenty-ninth precinct lacked probative force. It suffices to observe that during the twenty days the ballots were kept in the vault of the town clerk numerous persons, irrespective of whether engaged upon official business, gained ready admittance to the vault. Reasonable, if not abundant, opportunity for tampering with the ballots existed, and the evidence tends to show actual interference with them. In particular, the condition of the seal on the ballot sack was not the same as when the sack was sealed on the evening of election day. The appellants have failed to sustain their burden of establishing that the ballots were in the same condition when offered in evidence as when they were cast.” (Italics ours.)

See, also, Anderson v. Wierschem, 373 Ill. 239. In that case the court stated (pp. 243, 244): “The ultimate question for our decision is whether or not the probative value of the ballots certified to us for inspection is sufficient to overcome the poll-books and tally-sheets which are in writing and three copies of each of which are signed hy six persons — i.e. three judges and three clerks of election, and which are, in all respects, regular and in due form. It is apparent from the record that nine persons participated in and observed the actual counting of the ballots and that all nine of them agreed, and six of them certified over their signatures, that there were only two spoiled ballots. Thereafter, two men were left alone with these ballots and they were the only two who testified that the bag was even sewed. Admittedly it was not sealed, and these same two men said there was no wax among the election supplies, although one of the clerks testified to the contrary. Whether the bag was sewed or not, it is apparent to us, on actual inspection, that, in the absence of wax, it wuuld have been a comparatively simple matter to open the bag and resew it. It is unimportant, however, to determine whether or not it was sewed and then opened and resewed, because it is obvious, on the face of the testimony of all witnesses, that these two judges had an ample opportunity to tamper with the ballots if they were so inclined. They not only had the opportunity, but plenty of time for the accomplishment of this purpose, and it is significant that there is at least some discrepancy in the evidence as to the length of time they stayed alone with the ballots. At any rate, when the bag was opened twenty-four ballots were found double marked for supervisor, in addition to the two which had been found so marked when the nine persons had examined them at the close of the polls. The probability of so many persons overlooking so many double-marked ballots when they were being counted at the close of the polls is so remote, and the opportunity for tampering with the ballots themselves is so apparent, that we do not believe the probative value of those ballots is such as to overcome the official and duly certified returns of the election officials. The county court erred in giving them this effect and its judgment must be reversed.” In that case it was stipulated that the ballots were properly preserved from the time they reached the hands of the town clerk until the bag was opened in the County court. In Alexander v. Shaw, 344 Ill. 389, the Supreme Court adhered to the rule that the burden is on the contestant to prove that the ballots have been properly preserved.

While the cases we have cited involved election contest proceedings, no good reason can be advanced why less stringent rules in respect to the proof as to the preservation of the integrity of the ballots should be followed in a case like the instant one, where the good name and liberty of election officials are at stake. In this connection it must be remembered that the instant petitioner represents the Board of Election Commissioners of the City of Chicago, which under the law has the care and custody of the ballot boxes and is in a position to readily prove that it has performed its duty of safeguarding and protecting the ballots contained therein, and it would be an unconscionable rule of law that would cast upon respondents the burden of proving that the Board did not preserve the integrity of the ballots. If the rule stated in the election contest cases is not applicable in a proceeding like the case at bar it would be dangerous for a citizen, however upright he might be, to assume the position of an election official.

The material question for us to decide is whether the petitioner has successfully borne the burden of showing that the ballots had been kept in such a way that there was no reasonable opportunity for tampering with them; or, to put it in another way, whether the petitioner has proved that the ballots were preserved in such a manner as to establish their integrity as evidence. This brings us to a consideration of the evidence bearing upon this question: The respondents, after the close of the election at 5 o’clock p.m., examined, sorted, counted, tallied, wired, and sealed the ballots in the ballot boxes. Then the judges and clerks, riding in an automobile, brought the ballot boxes directly to the City Hall from the place of the election, located at Princeton avenue and 31st street. The pay vouchers of the respondents were stamped by the Election Commissioners with an electric clock stamp at 6:57 p.m., April 4, 1939. When the judges and clerks arrived at the LaSalle street entrance of the City Hall the ballot boxes were there taken by an employee of the Election Commissioners’ office (not identified), who, together with fourteen other people from that office, were taking ballot boxes as they were delivered by precinct officials. The boxes were removed from the sidewalk by the said employees and placed in vans, to be taken to Werner Brothers Warehouse, where all ballot boxes were kept by the Election Commissioners, who had supervision and control of certain rooms in the Warehouse. No receipt was given to respondents when they delivered the ballot boxes and no record was made on the night of April 4, 1939, by the Board of Election Commissioners of the receipt of the ballot boxes of the precinct in question. No record was made of the time when they were removed from the sidewalk, nor of the particular van in which they were placed. When a truck delivered ballot boxes at the Warehouse for storage no record was kept by the Warehouse as to the ballot boxes thus- delivered. The Warehouse kept no “inventory of any kind.” Stanley Wronski, an employee of the Board, testified that “on April 5th and 6th I saw all the ballot boxes” in the Warehouse, and that on April 7 he placed “all of the ballot boxes from the 11th ward” in the vault; that on April 5th and 6th he checked up the ballot boxes of the 11th ward and found two — not the ones in question —missing.

On November 10, 1939, about seven months after the election in question, the judge of the County court of Cook county entered an order appointing* James F. Connery, an employee of the Board of Election Commissioners, a special commissioner of the County court of Cook county, to supervise a recounting of the ballots cast in the precincts and wards of the City of Chicago in the General election of November, 1938, the Primary election of February, 1939, the City election of April, 1939, and the Judicial election of June, 1939. The order provided “that all of the ballot boxes . . . [of the said elections] be produced at the Board of Election Commissioners’ rooms from the warehouse and vaults where said ballots are now stored and that said ballot boxes shall be opened and the ballots counted and recorded and that the same be done immediately upon the entry of this Order.” The order further provided that Connery was to report to the County court of Cook county a full and complete report of the recounting. The order gave no directions as to the method to be pursued in making the recounts. Connery used teams in making the recount. Each team was composed of two men, employees of the Board; one designated as the caller, who received the box from the vault, opened it and examined the contents and recounted the ballots; the other, a tallier, who tallied the results as announced by the caller. Connery selected James Kucharczyk and Edwin Czosek to make the recount of the ballots of the precinct in question. On November 9,1939, Wronsld removed the ballot boxes in question, together with other boxes, from Werner Brothers Warehouse, “brought them to the Board of Election Commissioners and placed them in Vault 2.” He testified that the said ballot boxes were then under his supervision and care; that on November 11, 1939, he removed the said boxes from Vault 2 “for the purpose of recount” and placed them on a table about 20 or 25 feet from the vault; that at the time the following persons were receiving ballot boxes for the recount: James Kucharczyk, James Farley, C. B. Hopkins, Ezewski, L. Garrippo, P. Casella, L. Joyce, and George Leininger; that Kucharczyk received the box that belonged to the precinct in question. Wronski also testified that he did not remain and watch Kucharczyk count the ballots of the instant precinct; that when he turned the box over to Kucharczyk it was then in the custody of the latter; that he did not assign anybody to watch the ballot box while Kucharczyk made the recount. Kucharczyk testified that this box was tied four ways with rope and the knot of the rope was sealed with sealing wax; that he broke the seals, cut the rope and threw it in the scrap pile; that he destroyed the ropes; that he examined the contents of the box, removed the ballots from the wire to which they were strung, and after unfolding the ballots he numbered each one in the upper right-hand corner with a numbering machine; that he examined and counted the ballots, and that as he called the ballots Czosek tallied them.

After they had finished the recount Kucharczyk and Czosek made the following written ‘ ‘ Statement of Recount and Findings,” which was introduced as an exhibit by petitioner :

“Board of Election Commissioners Edmund K. Jarecki, County Judge Statement of Recount and Findings
Ward 11
Pct. 53
Date Nov. 11, 1939
The following statement is the result of a recount of Ballots Voted (Gray Box), at an Election in the City of Chicago, County of Cook and State of Illinois, on the 4th day of April, A. D. 1939, for the persons herein named; and Ballots not voted (White Box), in the 53 precinct of the 11 ward; pursuant to an order by the County Court of Cook County, November 8th, 1939. Said recount was conducted in the office of the Board of Election Commissioners, Boom 308 — • City Hall, Chicago, Illinois, on the above date.
Official Re- Void Ballots not
Candidate For Count count Ballots Initialed Gain Loss
Office of Mayor
Edward J. Kelly........521 509 9 12
Dwight H. Green ....... 30 31 2 1
Arthur P. Reilly ........ 2 2
Office of City Clerk
Ludwig D. Sehreiber .... 523 509 10 14
John Wm. Chapman .... 28 27 1 1
Stanley R. Pulaski ...... 2 2
Office of City Treasurer
Thomas S. Gordon ......522 508 10 14
Clement A. Nance....... 29 28 1 1
Oscar B. Tallaeksen..... 2 2
Office of Alderman
RECOUNT OF WHITE BOX ' RECOUNT OF GRAY BOX
Mayoralty Ballots Spoiled......3 Mayoralty Ballots Voted.....553
Mayoralty Ballots Not Voted Mayoralty Ballots D & O.... 0
....................144 N.I. Aldermanie Ballots Voted......
Aldermanie Ballots Spoiled...... Aldermanic Ballots D & O......
Aldermanic Ballots Not Voted.... Further contents D & O
Further Contents ..........None Envelope Empty
Remarks:__
Total Official Mayoralty Ballots (Gray and White Box)..........700
Total Official Aldermanie Ballots (Gray and White Box) ............
Number of Official Mayoralty Ballots sent to precinct ..............
Number of Official Aldermanie Ballots sent to precinct ..............
Number of Applications for Ballots ...............................
We, the undersigned, duly authorized and appointed Caller and Tallier, certify that the above recount made by us, showing the total number of votes given for each of the above persons, and recount of the ballots not voted, is true and correct in every respect.
J. KUCHARCZYK Caller Edwin Czosek Tallier”

It appears from Kucharczyk’s testimony that he was unable to tell in what respect the ballots shown in the “Void Ballots” column in the above statement were void. Czosek testified that no one watched him while he tallied the count but that after he got through tallying he handed the count back to Kucharczyk. Kucharczyk also made a written report in which he states that the boxes in question were brought to him by Stanley Wronski at 9:25 a.m. and that he returned them to 'Wronski at the vault at 12:30 p.m.; that when he received the box “one flap pasted to bottom of box the other flap loose”; that the rope was “tied 4 ways knot sealed with wax”; that when he returned the box it was “tied with rope, knot sealed, and box sealed with paper seals and signatures affixed to seals by J. Kucharczyk.” Connery testified that he supervised the recount in question; that on the morning of November 11,1939,18 or 20 boxes were opened and that approximately 9 men were opening ballot boxes; and that no person altered or changed any of the ballots while he was present. It clearly appears from his testimony, however, that he did not handle the ballots; that he did not even examine the ballots that Kucharczyk called as void ballots; that he did not know whether the ballots that Kucharczyk called as void were void or not; that he kept no record of the ballots that were declared void by Kucharczyk. Connery further testified that the first time he saw the ballot box in question was on November 11, 1939. We find no statement in the report of Kucharczyk and Czosek that even suggests that Kucharczyk found any evidence of fraud upon the ballots when he examined and recounted same on November 11, 1939.

On November 17,1939, the “53d precinct gray box,” that contained the ballots that were cast at the election, was removed from Vault 2 by Wronski and turned over to Czosek, who turned it over to Katherine Keeler, an examiner of questioned documents. We find nothing in the record to show why Wronski turned the ballot box over to Miss Keeler. He testified that Miss Keeler examined the ballots bnt that he did not know whether she counted them or whether she had all of the ballots out of the box; that he was not close enough to tell what was going on. Miss Keeler returned the box to Czosek, who returned it to Vault 2. While Miss Keeler testified that she examined the ballots on November 17, there is nothing in the record to show what report, if any, she made as to the result of her inspection of the ballots on that date. After she made another examination of the ballots in question on January 3, 1940, during the instant trial, she testified that she found erasures and alterations on 37 ballots, indentations on others, and embossments and pickups of lead on certain ballots.

Respondents ’ counsel makes so many points in support of their contention that the evidence shows that the integrity of the ballots as evidence had been destroyed and that the court erred in admitting them in evidence, that we feel compelled to refer only to the more important ones. It is strenuously urged by respondents that the court had no power or authority to appoint a special commissioner to recount the ballots out of the presence of the court; that there is in the Election Act no provision that gives to the County court such authority; that the opening of the ballot boxes and recounting of the ballots by Connery was a violation of the law and destroyed the integrity of the ballots a§ evidence. In answer to this contention petitioner states that the opinion in Stockholm v. Daly, 374 Ill. 441, supports its position that the County court had authority to appoint the special commissioner to recount the ballots out of the presence of the court. The Stockholm case does not support petitioner’s position. There the petitioner filed in the Supreme Court an original petition for a writ of mandamus to compel the members of the Board of Election Commissioners of the City of Chicago and the judge of the County court.of Cook county to destroy the ballots used at certain elections held in Chicago, for the. reason that more than six months had elapsed since the date of the last of said elections; that no election contests were pending; that none of the ballots had been impounded by order of court and no subpoena duces tecum or other lawful process had been issued to compel the production of any of said ballots before any court of competent jurisdiction or any grand jury. In the answer of the County Judge he averred that there were a large number of cases either pending or undisposed of involving malfeasance by judges and clerks of election and others authorized to take part in elections, or involving persons who wilfully made false canvasses or official statements of votes cast, knowing them to be false; that the ballots used in the said elections had not been destroyed for the following reasons (pp. 443, 444): (1) Pendency of the designated cases; (2) defendant Judge Jarecki has directed that the ballots be not destroyed because of the pendency of the named cases, and (3) that the judge of the county court has not designated two electors, as provided for by the statute, for the reason that said cases are pending and undisposed of, and further, for the reason that as county judge he firmly believed and still believes that the use of such ballots . is and will be necessary in pending and undisposed of cases, and that as it had been shown to him in open court that fraud, criminal neglect and misconduct have been perpetrated by judges and clerks of election, by other election officials and others, in the casting, counting, tabulating, recording and reporting of votes and results at such elections, as well as in the manipulation of such returns for the purpose of falsifying and improperly reporting the same, and that many persons are guilty of criminally interfering with the proper conduct of such elections, and, further, that he believes it his duty as judge of the county court to order said board of election commissioners not to destroy said ballots. The defendant county judge admits that he directed said board to preserve and retain the ballots as evidence for the purpose of prosecution and punishment of said offenders against the law applicable to such offenses, and alleges that all of his acts were done in the exercise of his judicial discretion. The answer further avers that the ballots were presented to the grand jury as evidence and are, in part, the basis for indictments voted by said body, and now necessary to be preserved and used as evidence in the prosecution of said indictments.” Plaintiff demurred to this answer, thus attacking its sufficiency as a matter of law. The Supreme Court states (p. 445): “The gist of plaintiff’s contention is that the statutes requiring the destruction of ballots, except where a contest is filed and undisposed of, are mandatory, and that, therefore, in law, the ballots have no existence in such case for any purpose whatever after the period of six months following the election have elapsed.” But the Supreme Court held that the facts set up in the answer were admitted by the demurrer and they presented a situation justifying the refusal of the writ. The authority of the County court to appoint Connery a special commissioner was not passed upon by the Supreme Court.

We know of no section of the Election Act (ch. 46, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 43.001 et seq.]) that authorizes the County court to appoint a Special Commissioner to recount ballots out of the presence of the court. The Board of Election Commissioners of the City of Chicago has the care and custody of all ballot boxes but it cannot open a box and count the ballots therein save as expressly provided by the statute. It was admitted of record that there were no charges pending against the Election Commissioners and that the three Election Commissioners then serving had been legally appointed and were performing their duties. While we do not deem it necessary to pass upon the legality of Connery’s appointment, we have the right to consider his acts and the acts of his assistants in the matter of the recount in determining the question as to whether or not the integrity of the ballots as evidence was preserved. We feel impelled to say, however, that it appears to us that the appointment of Connery to recount the ballots cast in four elections in Chicago, out of the presence of the court, constituted an unsafe procedure; one that was likely to destroy the integrity of the ballots as evidence. As far as we are aware, in election contempt cases that arose before the appointment of Connery the ballot boxes were opened for the first time and the recount made in the presence of the County judge. That procedure is undoubtedly safer than the one adopted in the instant case.

From the opinion in Stockholm v. Daly, supra, it appears that the County judge ordered the recount by Connery because he believed that a recount would show fraud, criminal neglect and misconduct by judges and clerks of election in the casting, counting, tabulating, recording and reporting of votes and results at the four elections, as well as in the manipulation of such returns for the purpose of falsifying and improperly reporting the same. Connery, of course, understood the purpose of the recount, and it must be assumed that Kucharczyk and Czosek also understood it. Having in view the purpose of the recount we will consider the written report made by Kucharczyk and Czosek. That report shows that Edward J. Kelly received in the official count made by the precinct election officials 521 votes for Mayor, and that upon the recount by Kucharczyk he received 509 votes; that Kucharczyk deducted 9 votes from Kelly as void ballots, and also deducted 3 “spoiled ballots.” Upon his examination as a witness in the .instant proceedings Kucharczyk testified that he was unable to tell in what respect the 9 ballots shown in the “Void Ballots” column in his report were void. Neither in his report nor in his testimony is there any statement that erasures and alterations appeared upon the face of ballots. Nor is there any statement that certain ballots evidenced fraud. Petitioner’s counsel concedes that the report made by Kucharczyk and Czosek “would never have made the basis of a contempt proceeding” against respondents. When the ballots were exhibited in court during the present proceedings, what appeared? To quote from petitioner’s brief:

“The ballots in evidence disclose that there are erased cross marks on the following numbered ballots, 71, 81, 82, 83, 85, 86, 88, 89, 91, 92, 93, 94, 95, 96,181,182, 183, 184, 187, 186, 188, 189, 190, 231, 232, 233, 234, 235, 236, 238, 239, 240 (Abst. 46) and each bear a cross mark in the Democratic circle (Abst. 46). . . . On each of the following numbered ballots, 71, 82, 89, 181, 235, the cross in the Democratic circle was different from the residue of the erased cross in the Republican circle (Abst. 48); on ballots 82 and 92 the cross mark on each was made by the same person (Abst. 48); the cross mark in the Democratic circle on ballot 181 made an indentation on ballot 236, the cross mark on ballot 184 made an indentation on 185, the cross mark on 188 made an indentation on ballot 187, the cross mark on 187 made an indentation on ballot 186 and also on ballot 182 (Abst. 47); the cross mark on ballot 473 made an indentation on ballot 157 (Abst. 48); all of the following numbered ballots have pickups of lead in the shape of a cross mark on the back of each, 94, 183,. 184, 185, 187, 188, 189, 190, 232, 235, 236, 238 and 240 (Abst. 47); the following numbered ballots, 147, 202, 242, 290, 346, 451, 524, all have embossments on their backs (Abst. 50); ballots 40, 239, 233, 232, 190, 231, 236, 186, bear cross marks all made by the same person (Abst. 50); ballots 219, 343, 11, 270 (Abst. 47) and ballot 100 (Abst. 52) have erasures on each.”

Respondents admitted upon the trial and admit here that 37 of the ballots that were presented in court showed erasures and alterations. We have the ballots before us, and the erasures and alterations upon 37 ballots are so obvious that they may be readily seen with the naked eye. The person or persons who made the erasures and alterations made no attempt to conceal the changes that were made upon the ballots. The condition of these 37 ballots cannot be reconciled with the report made by Kucharczyk and Czosek. Although the respondents strenuously contend that the ballots of this precinct were not properly protected from the time they were delivered to the Board of Election Commissioner's on the night of the election until the ballot boxes were opened by Kucharczyk, we may assume, for the purposes of this appeal, that the ballots returned by the respondents to the Board were safeguarded and their integrity as evidence preserved until they were turned over to Kucharczyk for his recount, on November 11, 1939. He was delegated by Connery to make the recount as a representative of the County court and for that purpose he was given custody of the ballots. He knew the purpose of the recount and also knew that it was one of his particular duties to ascertain from the ballots themselves if they had been tampered with. It is fair to assume that if, at the time he made his recount, 37 ballots showed erasures and alterations that were plainly visible to the naked eye, he would have noted that fact as he called off the ballots to the tallier, Czosek, and he would have indicated it in his written report to the County court. Kucharczyk placed the figure “9” in the “Void Ballots” column in his report, without indicating, in the report, why he classified 9 ballots which were marked for Edward J. Kelly as being void. In his testimony upon the trial he was unable to state why he classified them as void. Neither in his written report nor in his testimony is there any intimation that there was an erasure or an alteration on a single ballot taken from the gray box and recounted by Mm on November 11,1939. Indeed, counsel for petitioner, as heretofore stated, concedes that the written report made by Kucharczyk and Czosek “would never have made the basis of a contempt proceeding” against respondents. As Kucharczyk’s recount was expressly authorized and directed by the County court the result of that recount should control, in the instant proceedings, as to the condition of the ballots on November 11, 1939, in the absence of any showing of fraud or mistake in the report, and counsel for petitioner makes no charge of any kind in reference to that report. At the conclusion of the recount by Kucharczyk the ballot boxes containing the ballots for the precinct in question were returned to the care and custody of the Board of Election Commissioners, where they remained until November 17, 1939, when, according to the testimony of Wronski, the gray ballot box was turned over to Katherine Keeler, the expert. The record does not disclose whether or not she made any report as to what she found concerning the ballots on that occasion. Upon the trial she testified that when she examined the ballots on November 17 she found erasures on 37 of them, and embossments and indentations on some of them. When she fimshed her examination of the ballots on November 17, 1939, they were returned in the gray box to Vault 2 in the office of the Board and they continued in the possession and custody of the Board until they were produced in evidence upon the trial. That something happened to the ballots between November 11, 1939, when Kucharczyk recounted them and made his written report, and December 19, 1939, when they were produced in court, recounted and examined before the County judge and presented in evidence against respondents, is evident, and we are forced to the conclusion that between the time of the recount by Kucharczyk and the time that the ballots were presented in court someone tampered with certain of them; and after a careful consideration of all of the facts and circumstances bearing upon the instant question, we are satisfied that under the law and the evidence petitioner failed to prove that the integrity of the ballots as evidence had not been destroyed. If we are right in this conclusion then the court erred in admitting the ballots in evidence. As we have heretofore stated, counsel for petitioner concedes that “the ballots are the only evidence of the respondents’ corruptness.” Upon the oral argument in this court counsel for the Board of Election Commissioners stated that the evidence against respondents would not have warranted their indictment by a grand jury, but he contended that the evidence was sufficient, in a summary proceeding like the instant one, to sustain the judgment. We cannot agree with this contention.

Petitioner urges that the ballot box be protected, and concludes his brief with the following appeal: “. . . the sentences imposed in this cáse may contribute to help check the growing disregard for the citizen’s right to express his voice in his government.” In this opinion, as well as in several other opinions in cases decided by this court, we have expressed the view that a conspiracy by election officials to debauch the ballot box is in its nature akin to treason, for it strikes at the very life of the Republic, and we have always affirmed judgments against election officials' where the evidence warranted the judgments. But where, as here, the evidence does not warrant a finding of guilty we will not hesitate to reverse such finding. The protection of the ballot box does not require that election officials who have not been proved guilty of misconduct be punished.

That part of the judgment order of the County court of Cook county of April 5, 1940, which finds and adjudges respondents Albert Ferro, Mary Nadine Segvich and Frank G-uinta guilty of contempt of the County court of Cook county, and sentences Albert Ferro to the County jail for the period of two years, sentences Frank Guinta to the County jail for the period of two years, and sentences Mary Nadine Segvich to pay to the Clerk of the County court the sum of $1,500 as a fine, is reversed.

That part of judgment order of April 5, 1940, that applies to respondents Ferro, Segvich and Guinta, reversed.

Sullivan and Friend, JJ., concur.

Additional Opinion Upon Petition for Rehearing

The petitioner has filed a petition for rehearing in this cause. In support of the same petitioner has filed a written motion asking permission to file a certain document in the cause and “moves the court that said document be made part of the record of the above entitled cause and be considered by the court in examining the petition for rehearing.” Attached to the motion is a photostatic copy of what appears to be a part of a sheet of paper bearing no date and upon which appear short notations made by a number of persons. The so-called document was not introduced in evidence in the trial court, but the petitioner contends that this court has authority under section 92 of the Civil Practice Act [Jones Ill. Stats. Ann. 104.092] to receive additional evidence and to consider the same in passing upon the appeal. We have no such authority. In Schmidt v. Life Assurance Society, 376 Ill. 183, 197, 198, appears the following:

“Per Curiam: A motion has been made in this case under section 92 of the Civil Practice act (Ill. Rev. Stat. 1939, chap. 110, par. 216) to submit to this court certain original evidence not offered in the trial court.
“This section purports to give the Supreme and Appellate Courts power to receive evidence not produced on the trial. Except as provided by the constitution for the filing of original suits in the Supreme Court, its jurisdiction is wholly appellate. In so far as section 92 of the Civil Practice act, supra, attempts to give the Supreme Court original jurisdiction on the appeal of a cause, of matters germane upon the trial thereof, this provision contravenes section 2 of. article 6 of the constitution, which provides that the Supreme Court has appellate jurisdiction, only, in all cases except in cases relating to the revenue, mandamus and habeas corpus. The matters offered do not come within the original jurisdiction of the court. The motion is denied.”

We have heretofore entered an order denying the motion of the petitioner. Even if we had the power to receive original evidence it is plain that it would he a grave injustice to the respondents to admit the so-called document in evidence and to consider the same in passing upon the merits of this appeal.

We find no merit in the petition for a rehearing and the said petition is therefore denied.

Petition for rehearing denied.

Sullivan and Friend, JJ., concur.


author: Mr. Justice Sullivah

text:
    Estate of Esther Williams, Deceased, Caroline H. Faber, Executrix, Appellee, v. Frederick T. Tuch, Appellant.
    Gen. No. 41,983.

      Opinion filed February 10, 1942.
    Hehry A. Blouih, of Chicago, for appellant.
    Ribal & Stehslahd, of Chicago, for appellee; Edward A. Ribal and T. N. Stenslahd, both of Chicago, of counsel.
   Mr. Justice Sullivah

delivered the opinion of the court.

The inventory filed by the executrix, Caroline H. Faber, in the probate court of Cook county in the matter of the estate of Esther Williams, deceased, listed as one of the assets of said estate:

“Item 8. Deposit in Checking Account, Pullman Trust & Savings Bank, Joint Account with Frederick T. Tuch $2,803.90.”

Appellant, Frederick T. Tuch (hereinafter for convenience sometimes referred to as the objector), filed the following objection to the listing of said item as an asset of the decedent’s estate:

“Said inventory lists under Item No. 8, joint checking account with this objector in the Pullman Trust and Savings Bank.
“Said deposit in the Pullman Trust and Savings Bank in a joint account with objector, is the property of the said objector.”

The executrix filed an answer to the objection of appellant, the pertinent portions of which are as follows:

“She denies that said Frederick T. Tuch has any present right, title or interest in an to said fund; that the decedent herein, at the time of her death an aged widow of or about eighty-two . . . years, lived alone in an apartment at 100 West 113th Place, Chicago, Illinois, and was and had been for many weeks previous to her death under apprehensions that she could not, while incapacitated by a serious illness with which she was afflicted, personally attend to the conduct of her business affairs and in particular promptly pay her obligations as they accrued and became due as she had been wont to do previously thereto; that on or about, to-wit the 9th day of July, 1940, that is to say thirteen . . . days before her death, she lay gravely ill in a hospital known as Little Company of Mary Hospital, at Chicago, Illinois, and was visited then and there by the aforesaid Frederick T. Tuch; that said Frederick T. Tuch then and there agreed with her to pay in her behalf the bills for her certain personal expenses which had accrued and which were then about to accrue; that in order to provide funds for said purpose it was then and there agreed upon by and between said decedent and said Frederick T. Tuch to create, for that purpose, and no other, a .joint interest in said decedent’s said bank account; that pursuant thereto said Frederick T. Tuch did pay, out of said proceeds, certain bills of said decedent and that prior to said decedent’s death said Frederick T. Tnch withdrew from said account funds for no other purpose; and that since decedent’s death said Frederick T. Tuch has withdrawn said funds and applied them to his own use and purpose and has refused and continues to refuse to deliver said funds to said Executrix in response to her repeated demands to that end.”

The probate court after a hearing entered an order, the material portion of which is as follows:

“That the evidence sustains the objection of said Frederick T. Tuch to the inventory, with respect to the joint checking account in the name of the deceased and the said Frederick T. Tuch and said joint account as listed in the inventory is therefore decreed to bé the sole property of Frederick T. Tuch, surviving joint tenant.”

The executrix perfected an appeal from this order to the circuit court, which, after a hearing on the evidence submitted, entered an order which found and adjudicated as follows:

“That the aforesaid Esther Williams, deceased, did not during her lifetime convey, transfer, give, sell, set aside or assign to Frederick T. Tuch, of Chicago, Cook County, Illinois, all or any part of the proceeds of a certain checking account in the sum of $2,803.90 in the Pullman Trust and Savings Bank, an Illinois corporation, having its principal place of business at Chicago, Illinois, standing upon the books and records of said corporation jointly in the names of Esther Williams and Frederick T. Tuch ;
“That said Frederick T. Tuch does not have and never did have any right, title or interest in and to said proceeds; and
“That aforesaid proceeds became upon the death of aforesaid Esther Williams, deceased, and are, the sole property of Caroline H. Faber, as executrix under the Will of Esther Williams, deceased.
it
“That the objection of Frederick T. Tuch to the inventory filed by Caroline H. Faber, as executrix under the will of Esther Williams, deceased, in respect of the inclusion of a certain checking account in the sum of $2,803.90 in the Pullman Trust and Savings Bank, an Illinois corporation, having its principal place of business at Chicago, Illinois, standing on the records of said corporation jointly in the names of Esther Williams and Frederick T. Tuch, be and it is hereby overruled.”

It is to review this order that the objector, Tuch, prosecutes this appeal.

The decedent, Esther Williams, was 81 years old at the time of her death on July 22, 1940. She left , as her heirs three nephews and Frederick T. Tuch, who was her grandnephew. For sometime prior to July 8, 1940, she was a patient at “Techny.” On that date Tuch visited the decedent at the institution at Techny, Illinois, and, upon being informed by one of the nuns in charge at said institution that Mrs. Williams was “very low,” he had her removed in an ambulance that same day to the Little Company of Mary Hospital in Chicago. The decedent had a checking account under the name of “Esther Williams” in the Pullman Trust and Savings Bank. On July 9,1940, Tuch went to said bank and requested a “joint account card.” According to Albert E. Price, cashier of the bank, Tuch told bim that the reason he wanted the joint account card was “that Mrs. Williams wished to place this in a joint account so he could take care of the expenses of the estate.” Tuch brought the bank’s form of joint tenancy agreement to the hospital, where, on July 9, 1940, the decedent attached her signature thereto as “Mrs G-. Williams” and the objector attached his signature as “Fred T. Tuch.” After having been executed the joint tenancy agreement was returned to the bank on the same date and Mrs. Williams ’ individual checking account was changed to a joint account against which both the decedent and Tuch were authorized to draw checks.

Checks were thereafter drawn against the account by Tuch for $511.50 and $11.45 on July 22, 1940, and July 30, 1940, respectively. Neither the purpose for which these withdrawals were made nor the amounts thereof are questioned. $2,000 withdrawn from the account by Tuch on November 22,1940, and the balance of $803.90 remaining in said account, amounting in the aggregate to $2,803.90, constitute the fund involved in this controversy.

While there was some question on the trial as to the authenticity of the decedent’s signature on the joint tenancy agreement, we think that it sufficiently appears from the evidence that she signed same.

Dr. Charles J. LaHodney, who was a friend of Tuch and his physician for 20 or 25 years, was called in by the latter to attend the decedent. He testified that he first saw her on July 8,1940, at the Little Company of Mary Hospital and that on that day “she said she wanted to make arrangements so Mr. Tuck [Tuch] would take care of her — have some kind of account where Mr. Tuck [Tuch] would take care of her expenses and so on and that he should have the balance of that money that was in the bank.”

Dr. LaHodney, when asked concerning the state of decedent’s “mental process,” testified, “Well, she was very lucid at times and sometimes she would have a little temperature and she was a little fussy. In the main she was very good, she wanted to go home about four or five days after she was there; when she came in the hospital she was suffering from some cardiac distress, she had a fibrillation, that is, a rapid action of the heart with a little sciatica.”

The hospital report under the caption “Progress Notes” contains the following entries:

“7/8/40 Dr. LaHodney arrived at time of physical exam. Patient appears extremely weak and does not respond very well. (Hultgen)
“7/9/40 Patient semi-stuporous. Seen by Dr. LaHodney and Dr. Smith. T. 99.4. Liver enlarged 3 F below costal margin and tender. Shifting dullness in flanks.”

Bertha Stevens, one of the nurses who attended decedent at the hospital during her last illness, testified that she saw the testator sign the joint tenancy agreement on July 9, 1940, and that after she signed same “she gave it back to Mr. Tuck [Tuch] and told him he was to take care of all her expenses while she was in the hospital and he was to have the rest.” On cross-examination Miss Stevens admitted that she testified at the hearing in the probate court that when the decedent “signed the card and told Mr. Tuck [Tuch] to pay her expenses . . . that is all she said.” She also testified on cross-examination that “I have gone over the case and remember better now.” It should be noted that she testified at the circuit court hearing on May 21, 1941, and at the probate court hearing on February 28, 1941.

Caroline H. Faber, the executrix, testified that she had a conversation with Tuch on July 24,1940, in which he told her “that he was on his way to Wisconsin to visit his family at a resort and while en route decided to stop at Techny to see his aunt, Mrs. Esther Williams, and a Sister in charge said that she was very glad that he stopped because Mrs. Williams was very low. . . . So he stated that an ambulance had to be hired to take her to the hospital and nurses expense and so forth and Mrs. Williams said, ‘Pay all my bills immediately. There is my check book, just sign the checks,’ and Mr. Tuck [Tuch] replied, ‘Of course, I knew I couldn’t do that and offered to pay the bills and she could reimburse me later, but Mrs. Williams ■ said “no, pay them right away,” ’ so he called the bank and was informed that a card would have to be signed authorizing him to sign the checks and then stated, ‘When you get the checks from the bank and the statement, you will find that every check I issued was for expenses only and I have also written Auntie’s name on each check.’ ”

The executrix also testified that Tuch’s attorney telephoned her sometime in September 1940, in response to a letter which she had written him on August 29, 1940; that said attorney stated “I am representing Fred Tuck [Tuch] in the estate of Esther Williams, deceased, . . . We are going for the checking account and postal savings — at least we are going to make a stab at it”; that she took this statement down in shorthand; and that, although she had handled the decedent’s affairs for many years, she did not know of her having any other checking account than that here in question.

Tuch testified that he recalled his conversation with the executrix and that “I told her that she [decedent] had had a checking account signed into a joint tenancy and that I had paid all of the bills and that the balance of the amount was a donation to me. My aunt gave that to me.”

The theory of the objector, Tuch, as stated in his brief is that “the joint tenancy account was established to enable him to pay the obligations of the hospitalization and medical care of Esther Williams and that the balance was his in any event.”

It should be noted at the outset that the controversy here is not between the bank and the joint depositors or either of them and that the rules governing the relations between a bank and a depositor or the debtor-creditor relationship are liot applicable to the situation presented by the record in this case. The sole question we are called upon to decide is whether the decedent intended, when she signed the joint tenancy agreement making Tuch a joint party to her checking account, to make him a gift of the fund remaining in said account after her medical and hospital expenses had been paid by him out of same.

As already shown Tuch happened to visit the decedent at Techny and found that she was “very low.” She was in the habit of paying her bills promptly as they accrued. Because of her condition she was unable to make out and sign her checks to pay her bills and she requested Tuch to do so. He knew that her checks bearing his signature would not be honored and he suggested that she would have to authorize the bank to honor checks drawn by him against her account. After he had her removed to the 'hospital in Chicago he secured a joint account card from the bank and procured her signature thereto. Tuch admitted that he never made a deposit in the bank account in question and had absolutely no title to or interest in same except such as may have resulted from the execution of the joint tenancy agreement by the decedent.

The claim of Tuch that the decedent made a gift to' him of the fund in controversy finds support only in his own testimony and that of Dr. LaHodney and Miss Curtis, the nurse. Although the nun at Techny stated that Mrs. Williams was “very low” on the morning of July 8, 1940, and the Chicago hospital record of the same day shows that she ‘ ‘ appears extremely weak and does not respond very well” and that Dr. LaHodney “arrived at the time of physical exam.,” the doctor testified that the decedent on said date announced to him that she wanted Tuch to “take care of her expenses and so on and that he should have the balance of that money that was in the bank. ’ ’ This statement was supposed to have been made by the decedent the day before she signed the joint account card. It strikes us as most strange and amazing that Mrs. Williams, who was “very low” on the morning of July 8, 1940, who was “extremely weak” and did “not respond very well” on the afternoon of the same day when Dr. LaHodney saw her and who was in a “ semi-stuporous ’ ’ condition the next day, would launch into a conversation concerning her finances with Dr. LaHodney, whom she had not previously known and had never seen before. We think it highly improbable that the decedent, who was so seriously and dangerously ill, would make any such statement as the doctor attributed to her.

It will be recalled that, although Miss Stevens, the nurse, testified at the circuit court hearing on May 21, 1941, that after signing the joint account card on July 9, 1940, the decedent “gave it back” to Tuch and ‘1 told him he was to take care of all her expenses while she was in the hospital and he was to have the rest,” she was forced to admit that at the probate court hearing on February 28, 1941, she made no mention of any statement by the decedent that Tuch “was to have the rest. ’ ’ It should be borne in mind that she testified that her memory was better on the occasion of the later hearing in the circuit court as to what occurred on July 9, 1940, than it was when she testified at the earlier hearing in the probate court and it is also significant that when the decedent was supposed to have made the statement to Miss Stevens on July 9, 1940, that Tuch “was to have the rest,” the hospital record discloses that Mrs. Williams was in a “semi-stuporous condition” on that day.

Both the executrix and the bank cashier testified that Tuch told them that decedent’s only purpose in changing her.-individual account to a joint.account with him was~to' enable him as a matter-of convenience to pay her medical and hospital expensas out of her checking account. While Tuch denied the testimony of the executrix-in-this regard and testified that he stated to her that the decedent gave the fund in question to him, he did not deny the testimony of the bank cashier.

Since the testimony of Dr. LaHodney was open to grave suspicion and discredited by the hospital record and since the testimony of Miss Stevens, the nurse, was also discredited by the hospital record and impeached as to the most material portion thereof by her admission that in her testimony at the probate court hearing she said nothing about the decedent making a gift to Tuch of the money in her bank account or any part of it, the trial court was justified in disregarding the testimony of both of these witnesses.

There is not a particle of evidence in the record to show any reason why the decedent should have made a gift of the money in her bank account to Tuch and the conclusion is irresistible that when the decedent signed the joint tenancy agreement she had no realization of its contents or¡ meaning and that if she were capable of any intention at all at the time in regard to her bank account, it was merely to authorize Tuch to draw checks against same for the payment of her medical and hospital bills.

^ It is the established law that where gifts are first asserted after the death of the donor, they are regarded with suspicion by the courts and the rule requiring gifts to be established by clear and convincing evidences especially applicable in such cases, particularly where a confidential 'relationship existed between the parties! (28 C. J. 681, sec. 86; Humble v. Gay, 168 Cal. 516, 520; In re Estate of Turner, 244 Pa. 568, 572.) “The burden of proving all facts required to create a valid gift inter vivos is on the donee. The essential facts to be established are the delivery of the property to the donee, with the intent to pass title. To sustain the gift the proof must be clear and convincing. ’ ’ (People v. Polhemus, 367 Ill. 185.)

While it is true that the decedent signed the joint tenancy agreement authorizing Tuch to draw checks against her bank account, the objector utterly failed to show by any credible evidence that Mrs. Williams signed such agreement with any intention of mailing a gift to him of the money in her bank account or of any balance left therein after he paid her medical and hospital bills. No such evidence was presented by Tuch as was necessary to establish a valid gift.

In view of what has been said the fact that the joint tenancy agreement included therein a survivorship clause carries no significance and since it clearly appears from the facts and circumstances in evidence that a confidential relationship existed between Tuch and the decedent, that she was completely under his domination and that she undoubtedly had no conception of what she signed, said joint tenancy agreement is without legal effect in so far as the objector is concerned. As between the bank and Tuch and the decedent, and after the latter’s death, the executrix of her estate, the bank would be justified in treating the deposit as a fund in which the parties had a joint interest. But as between Tuch and the decedent, the money in the account belonged always and wholly to Mrs. Williams and after her death to her legal representative. Such legal title, if any, as Tuch had in the joint account deposit, he held in trust for the decedent, and that trust in personal property could be established, as it was here, by parol. Notwithstanding the form in which the account was made out, Tuch was acting merely in the capacity of an agent with limited specific obligations and his agency terminated upon his performance of such.obligations. (Bradford v. Eastman, 229 Mass. 499.)

No sound reason having been advanced as to why the judgment order of the trial court should be disturbed, same.will be affirmed.

Judgment affirmed.

Scanlan, P. J., and Friend, J., concur.