text:
    THE STATE v. JOSEPH T. WEISMAN, Appellant.
    Division Two,
    December 19, 1911.
    1. ELECTION: Fraudulent Registration: Conspiracy: In Precincts Other Than One Charged: Identity. Proof that members of a 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 the one tends to establish proof of the other, as also to prove identity of the person charged with the crime, even if such evidence tends to establish other specific crimes. So that, where defendant was indicted for feloniously inciting and procuring a gang of negroes to fraudulently register, and the particular charge was that he did feloniously incite and procure one Everson to commit said felony in the sixth precinct, it was competent to permit the State to introduce evidence tending to show that Everson on said day fraudulently registered in two other precincts, and that two other persons belonging to said gang fraudulently registered during said day.
    2. IMPEACHMENT OF WITNESS: Indicted: Convicted: Explanation. Where a witness for the State, upon cross-examination, admitted that he was under indictment for perjury, it is not error to permit the State, upon re-direct examination, to ask him if he had ever been convicted of any offense. Likewise, where another witness on cross-examination, admitted he had been convicted of perjury,, it was not error to permit the State, upon re-direct examination, to show that he had never before been convicted of any other offense.
    S. INSTRUCTION: Inciting and Procuring Another to Commit Crime: Credibility of Witnesses Connected with Similar Crimes. Upon the trial of a defendant for inciting and pro- ■ curing others to fraudulently register, at which witnesses had been permitted to testify to other acts of fraudulent registration than the particular one individuated in the indictment, an instruction telling the jury that “in making up your verdict it is your duty to consider exclusively the question of the guilt or innocence of this defendant . . . 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,” although subject to verbal criticism, is not error, when taken in connection with another plainly directing that defendant could not be convicted unless the other person named in the indictment actually committed the crime charged against him, and with another confining the jury’s attention to defendant’s guilt as charged.
    4. INSTRUCTIONS: Considered as a Whole. Instructions must be read together and considered as a whole, and as they would impress men of ordinary intelligence. To single out one instruction, and to put a strained construction upon it, that may, because it stands alone, be misleading, would be to make an intelligent system of writing instructions impracticable, if not impossible.
    5. -: Former Testimony. To instruct as to each item of testimony is not permissible. The court did not err in refusing to give an instruction calling the jury’s attention to testimony to the effect that on a former occasion witnesses had given testimony contradictory to that given at the trial, and telling them if they so found they were at liberty to disregard the present testimony of such witnesses. An instruction telling them that, in passing upon the credibility of witnesses, they were to consider “all the facts and circumstances in evidence” was sufficient.
    6. SUFFICIENCY OF EVIDENCE: ProfligateWitnesses: Province of Court. Notwithstanding the wicked and profligate character of the witnesses, if their testimony, assumed to be true, as the court must assume, where the jury have believed it, is substantial and sufficient to support a verdict of guilty, the verdict must stand. '
    Appeal from St. Louis City Circuit Court. — Eon. George E. Shields, Judge.
    Affirmed.

      G. Orrick Bishop for appellant.
    (1) The court gravely erred in permitting the State to give evidence of several different and distinct offenses committed by the alleged principal Percy Everson on the day named. Appellant was charged solely and specifically with the offense of procuring the said Everson to fraudulently register in the sixth election precinct of the third ward, under the name of Percy Everson; in no other precinct and under no other name. If Everson did so register in said precinct, fraudulently and with felonious intent, and appellant did procure him to do so, with felonious intent, then the offense charged was made out; otherwise not. No number of other fraudulent registrations on the same day could add to that guilt, nor was evidence of them either necessary or competent to establish that guilt. The act itself, if knowingly done, proved its intent. The purposes for which such testimony is admitted, in exception to the general rule, have been clearly and fully stated in the recent decision of this court in State v. Hyde, 234 Mo. 200; and it certainly did not require any such evidence in this case, even assuming that the testimony of any one of the alleged accomplices was true. These separate and distinct registrations could not have been charged in one count, nor in separate counts of the same-indictment; nor can the evidence of one be held to sustain the other. The 10th instruction I consider gravely erroneous, and the most peculiar instruction I have ever encountered. The jury were told that in making up their verdict it was their duty to exclusively consider the guilt of this appellant without regard to the probable guilt or innocence of any other person of any crime. In other words, they might find appellant guilty of aiding and abetting Everson in the commission of a felony (as charged in the indictment) without any regard to the probable guilt of Everson.

      Elliott W. Major, Attorney-General, and James T. Blair, Assistant Attorney-General, for the State.
    (1) Objection was made and exception taken to the action of the court in admitting evidence of what was said and done by Everson, Holland, Robinson, Branch, Isabel, et ah, after appellant had indicated to their spokesman, Isabel, his wish and intention to secure some fifty illegal registrations in the Third ward on February 18. The objection was grounded on the contention that the indictment was not “based on conspiracy and under the statute of conspiracy.” The competency of the evidence under such a charge —“based on conspiracy” — was expressly admitted, and asserted by counsel for appellant. Counsel simply contended that where the charge “is a charge of accessory before the fact the rules of evidence are different,” and conceded that “if he were charged with conspiracy, however, the doing of one would be that of all,” but contended that “in this case it would not be,” concluding “that’s the distinction we make.” (a) The objection made below cannot be amplified here. Williams v. Dittenhoeffer, 188 Mo. 142; O’Neill v. 'Kansas City, 178 Mo. 100; R. S. 1909, sec. 5245; State v. Miles, 199 Mo. 559. (b) Restricting the scope of the objection here as counsel restricted it below, as under the authorities must be done, the question raised presents no difficulty. “A conspiracy is a combination by two or more persons to do a thing criminal or unlawful in itself, and may be proven by facts and circumstances.” State v. Kennedy, 177 Mo. 119; State v. Sykes, 191 Mo. 78. And it is not necessary that the co-conspirators be either indicted or tried together to render the declaration of one admissible against the other. State v. Bobbitt, 228 Mo. 266- State v. Kennedy, 177 Mo. 164 et seq.; State v. Sykes, 191 Mo. 78; State v. Boatright, 182 Mo. 46. The order of proof is of no great importance. State v. Miller, 191 Mo. 608; State v. Kennedy, 177 Mo. 132. And an indictment merely charging one with the commission of an offense is broad enough to let in the evidence of a conspiracy, between the indictee and another, to commit the crime. State V.-Miller, 191 Mo. 591; State v. Bobbitt, 228 Mo. 266; State v. Sykes, 191 Mo. 79'. The statute (Sec. 4441, R. S. 1909), specifically declares it a distinct crime to “ procure . . . any person . . . todo any act by law forbidden, or constituted an offense.” With this very offense appellant was charged, and of it he was convicted. This court affirmed the judgment in the case of State v. Enoch Bobbitt, 215 Mo. 39', in which the evidence of conspiracy was no. stronger than here. The crime of which he was convicted was not contemplated by the conspirators, but was committed during an effort to commit arson. Bobbitt was not present at all. The present case is not a prosecution for conspiracy, it is true, but it is a prosecution for the commission of the crimes which were the objects of the conspiracy. If one hires others to commit a crime and greed is the sole bond of union connecting the rest with the arch-conspirator, is the latter less guilty than if all acted together from motives of revenge? Would the rules of evidence be different in the two cases ? Any agreement between two or more to commit a crime or crimes constitutes a conspiracy. The case cited above, when the rules laid down there are applied to this record, demonstrates that the testimony objected to was competent. Should it be said appellant did not employ Everson to register fraudulently, the answer is that' he acted through, another and “qui facit per alium, facit per se” is a maxim, always applicable in a case like this. Though one is charged as accessory, merely, yet declarations of the principal are admissible on the theory that the two were acting in concert. State v. Ross, 29 Mo. 51; State v. Phillips, 117 Mo. 394. What any one of several.principals does or says, when there are several principals, would seem as competent as what is done by a sole principal, the accessory being on trial in each, ease, and the whole system of crimes contemplated by the conspirators was admissible. State v. Williamson, 106 Mo. 169; Underhill oh Crim. Ev., secs. 88 et seq; Gillett on Ind. and Col. Ev., sec. 57, pp. 791, 80; 3 Ency. Ev., pp. 413, 414 and notes. (2) The 10th instruction was, in substance, approved in State v. Bobbitt, 228 Mo. 268. (3) The 11th instruction properly limited the effect of the evidence as to other offenses committed in furtherance of the common design. The registration of Everson was but an incident in the general plan. All the acts done by the conspirators in furtherance of the conspiracy were competent, though their acts constituted crimes. If this instruction is not the law, then conspirators by making every act done a crime of itself could go scot-free. Uillett on Ind. and Col. Ev., sec. 57 and notes.
   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. ’ ’

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 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 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 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. [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 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 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.


source: Caselaw Access Project

author: GRAVES, J. LAMM, J. WOODSON, J. VALLIANT, C. J.

license: Public Domain

text:
    JAMES B. GANTT, Contestant, v. JOHN C. BROWN; HENRY C. TIMMONDS, Contestant, v. JOHN KENNISH; HOWARD A. GASS, Contestant, v. WILLIAM P. EVANS.
    In Banc,
    December 20, 1911.
    1. ORIGINAL PROCEEDINGS: Commissioner to Take Evidence: Rulings on Evidence: Interlocutory Decision. As a rule of practice, where a commissioner has been appointed to take evidence in an original proceeding brought in the Supreme Court, the court will not consider his certification of rulings on interlocutory matters arising during the hearing, but will wait until he makes his final report thereon. Where he rules that certain evidence offered is not competent, and other evidence is competent, the court will not, upon his certification for a ruling as to the competency of said evidence, decide the case by piecemeal by giving a decision on the points for his guidance in the further taking of testimony,, but will leave him free to rule according to his own judicial judgment, and will reserve its decision on the points until the cause is finally submitted. But the court will consider his application far enough to clarify and elucidate the original order given him where it has been misconceived by him and counsel — for instance, where the bare order without explanation is broader than some of the previous decisions of this court.
    2. ELECTION CONTEST: Poll Books and Ballots as Evidence: Prima Facie Case of Fraud. It is not necessary that the parly charging fraud or illegality in an election must show a prima facie case of fraud before he can have the poll books and ballots as one step towards proving the fraud charged. Wherever there is an allegation of fraud in an election contest, made in good faith, the ballots and poll books should be opened for the purpose of showing fraud, whether it is actual fraud or what may be denominated legal fraud. [Overruling State ex rel. v. Spencer, 164 Mo. 1. c. 33; Montgomery v. Dormer, 181 Mo. 5.1

      Held, by VALLIANT, 'C. J., that this court has never decided that the secrecy which the Constitution requires can be invoked to cover up or protect a ballot that has been cast by a man who had no lawful right to vote, and hence the Spencer and Dormer cases should not be overruled.

      Held,, also, that the court should decide now whether certain persons whose names are on the registration books, which fail to show that such persons had been naturalized or the court wherein naturalized, were legal voters, and whether or not the testimony of the voter is sufficient to contradict his ballot.
    3. -: Fraud: Competency of Evidence: Testimony of How Witness Voted: Secrecy of Ballot. The provision of the Constitution in reference to a secret ballot ■ was not designed to be a bulwark behind which fraud could lurk and propagate Where fraud in the election is alleged in good faith in the election contest, the mode and measure of proof should be as broad as the charges, and any available evidence tending to establish or disprove the charge is competent. Not only are the ballots and poll books competent, but a witness may- testify as to how he voted, as tending to show fraud or no fraud. But whether the unsupported testimony of the witness will set aside the face of the ballot, if it contradicts the ballot, is not decided, but, in the present status of the ease, is reserved.
    4. -: Comparing Ballot with Poll Book. When the ballot is examined and shows a certain number, the party challenging it as fraudulent is entitled to the poll book to show by the corresponding number thereon who cast it. The statute (Sec. 5911, R. S. 1909) so provides, and the Constitution does not inhibit. [Overruling State ex rel. v. Spencer, 164 Mo. 1. c. 23.]
    5. -: Comparison with Registration Book and Other Documents. Where fraud is alleged in good faith in the election contest ease, the registration books and other papers and documents required by law to be made and preserved in those counties where registration of voters is required, are available, along with the poll books and ballots, to establish or disprove the fraud. [Per WOODSON, J., with whom a majority concur.]

      William G. Marshall and W. M. Williams for contestants.

      Selden P. Spencer and Lon O. Hocher for contestees.
   GRAVES, J.

These cases are now before ns upon the following- request filed herein by the commissioner appointed by this court:

“Your commissioner, Robulus E. Culver, heretofore appointed by your Honorable Court, would respectfully show to the court that he proceeded with tlie taking of testimony in tlie above entitled canses as directed by tlie court’s order herein; that during’ the progress of the taking of said testimony the contestants asked for a subpoena duces tecum directed to the Board of-Election Commissioners of the city of St. Louis, Missouri, commanding said board to produce the poll books of the election held in the city of St. Louis on November 8, 1910, for the offices in contest, and other State offices, and offered said poll books in evidence for the purpose of showing* the numbers set opposite the names of the persons whose right to vote at said election was challenged by said contestants for the reasons assigned and set out in the report of the proceedings had before your commissioner; that thereupon your commissioner ruled that under the evidence so far introduced said poll books were inadmissible, because immaterial and irrelevant to any issue made by the pleadings or the evidence already taken, except as to certain of the voting numbers appearing on said poll boobs; that all of the facts in relation to said request and ruling appear in the testimony taken and proceedings already had, which are fully set out and have been by your commissioner filed with the clerk of this Honorable Court; that thereupon both the contestants and contestees objected, and excepted to the ruling of your commissioner on said matters, and joined in a request that said ruling be certified to your- Honorable Court.
“Wherefore your commissioner prays for instruction and direction as to the correctness of his rulings in the respect aforesaid.”

There are two questions sought to be propounded to this court in this request. The contestants ’ counsel thus state them in their brief:

‘ ‘ The commissioner has asked directions from the court upon two propositions that have arisen during the progress of the hearing before him:
“Tlie first arises upon the application of the contestants for a subpoena duces tecum for the poll books, in order that they may procure the voting number of persons registered as aliens who do not affirmatively appear by the registration books to be qualified voters.
“The second question submitted by the commissioner is the right to the poll books to show the voting numbers of electors who have testified that they voted a straight Democratic ticket and did not scratch Judge Gantt, and who have consented in the record to have their ballots examined.”

Counsel for contestees, thus state the questions which they desire answered by this court:

“(a) Whether or not the failure of clerks of election to properly enter on the registration books all the facts called for by the blanks of the registration books is in itself evidence sufficient to discredit the vote of the person whose registration is not thus complete on the book, or, in other words, does the mere failure by election clerks to enter upon the registration books either the information required by the statute or called for by the blanks on the registration books .prima facie disqualify from voting the man concerning whom such failure is made, so that his vote is presumptively a vote not to be counted?
“ (b) Is the statement made today by a man who says that he voted in November, 1910, and voted a certain ticket in a certain way, sufficient evidence to warrant the production of that ballot (the voter not objecting) and the ascertainment of what that ballot shows on its face to the end that if the ballot appears differently from the testimony of the man, his testimony (nothing else appearing) may contradict the ballot and the ballot may be counted not as written, but as the witness testifies he cast it last November, or, in other words, is the statement of a voter, made several months after the election, sufficient to change his vote as it appears on its face, there being no other evidence to show that the vote had been changed or altered except the testimony of the witness as to the kind of vote that he cast last November?”

These questions arise from this state of facts. Contestants proceeded to take evidence tending to show that the registration books' of the city of St. Louis showed a number of persons of foreign birth had been left thereon as legal voters, but said books failed to show the fact that such person had been naturalized or the court wherein naturalized. Upon this showing contestants asked for a subpoena duces tecum for the poll books, so as to get the name of the voter and compare it with the ballot,to the end of showing an illegal ballot. This request the commissioner refused, and contestants ask a ruling upon that question. Later contestants put on certain individuals who testified • that they had not scratched the name of James B. Gantt from the Democratic ticket, and the contestants evidently being of the opinion that the ballots showed such name scratched, asked for the poll books as to such names, to the end that the voting number might be shown and the name of the voter might be shown, and this when compared with the ballot would tend to show that the ballots had been changed after leaving the voter’s hands. This request was granted by our commissioner and a subpoena duces tecum ordered, and upon this question the contestees desire a ruling.

This presents the matter sufficiently for what we shall have to say.

I. But for one reason we would recertify these questions to the commissioner for him to answer upon his own responsibility without an opinion from us. That reason we will disclose in the succeeding paragraphs. Cases should not be heard and determined by fractions or in piecemeal. The exact question was up in State ex inf. v. Standard Oil Co., 194 Mo. l. c. 165, and we then said:

“Certainly it is not the practice in this State for a referee to he required to report intermediate matters to the court appointing him for instruction from the court, nor is it the usual practice for a master in chancery, from time to time, to refer matters to the court appointing him so that he may be controlled in his ruling’s on evidence or other matters within the warrant of his authority. All these things are settled, by and large, upon his final report. If it then appears that he has erred in the admission of evidence, that evidence is excluded. If he has excluded proper evidence, the case may be sent back to him to hear and consider such evidence. If a witness decline to answer on th® ground that his answer would incriminate him and is committed by the commissioner on the theory that the question is not privileged because the statute had granted immunity, or for other reasons, we see no reason why a witness should not take the same chance a defendant does when he stands on a demurrer to a petition and finds when too late, maybe, on appeal, that the petition was good and the judgment final and impregnable. At least, we are not willing to sanction any innovation by inaugurating the practice.of applying here for instructions to a commissioner. He should be left free and uninfluenced by us to exercise in the first instance his judicial judgment. Nor does the importance of the case, or the fact that distinguished counsel are employed, or the gravity of the questions raised, demand that we should respond to anomalous requests. If we make such rule in this case, then, by the same token, it must be the rule of practice in every submission to a special commissioner on an original proceeding instituted here, and we will be compelled to consider certifications on interlocutory matters, however humble the case, however obscure the counsel employed, or however simple the matter involved.
“The matters certified to us are, therefore, recertified to our special commissioner that he may proceed therewith and with all matters pertinent to this hearing under the broad and flexible power given him by his order of appointment.”

That ease was before the Court in Bane as then constituted, and the above doctrine enunciated by Lamm, J., was concurred in by Brace, O. J., Gantt, Valliant and Marshall, JJ. The other members of the. court, Btjrgess and Fox, JJ., concurred in the result, and as there were other questions in the case it is left in doubt as to whether or not they endorsed all that was then said upon the question of practice. But be that as it may, that case settled the practice in this court, and we think wisely settled it. Nor do we in this case intend to depart from that rule. We shall not now undertake to specifically answer the questions propounded, but leave those matters to our commissioner after we have cleared the atmosphere in regard to the order entered when the commissioner was appointed.

II. We take it that our order has been misconceived by both the commissioner and the counsel in the case. A reading of the order to recount the ballots as made by this court will show that it is broader than some of the previous opinions of the court. The commissioner and counsel upon both sides seem to be proceeding upon the theory that what they term a prima facie case of fraud must be shown before the. party charging fraud or illegality in an election, can have the poll books and ballots as one step toward proving the fraud charged. This view of the law is erroneous. By broadening our order as stated above we intended to indicate, both to the commissioner and the counsel engaged, that the rigid ruling of some previous cases from this court was uot longer to be followed, but we now see that we then made a mistake in not going further and specifically stating our reasons for thus broadening the order aforesaid. Those reasons will so enlighten the commissioner that there will be no further necessity to make inquiry of the court as to the competency of evidence, or as to the force and effect of evidence already taken or about to. be taken.

In this case the contestants charge fraud in the election — both actual fraud and what might be denominated legal fraud. The classification is- immaterial, in cases of the character under consideration, because fraud is fraud, whether it be actual or legal. In other words, a person in good faith and without intention to work a fraud upon any person might cast a vote, and yet the Vote would be illegal. Such.a vote in law works a fraud upon the person against whom it is cast, and would be denominated a legal fraud. Another person knowing himself to be disqualified might vote and such a vote would be tainted with both actual and legal fraud. A vote as cast might be changed by actual fraud. But where fraud is charged in good faith in the petition it can make no difference in a ease such as is here whether the fraud be actual or whether it be what might be denominated legal fraud.

"We hold that where there is an allegation of fraud, made in good faith, as appears to be from the pleadings in the cases at bar, the ballots and poll books should be open for the purpose of showing fraud'. The stability of our government is dependent upon the honesty and purity of the ballot. The secrecy of the ballots had better be scattered to the four winds rather than have such secrecy shield corruption in elections. The framers of our Constitution in providing for a secret ballot never dreamed that they were erecting a bulwark behind which fraud could lurk and propagate, and eventually run rampant throughout the land. Better a thousand times that the individual’s vote should be spread upon canvas under calcium light, than that fraud should be locked up within the lids of official ballot boxes and poll books, with no known legal method of exposing such frauds.

We hold further that when charges of fraud are made as above indicated the mode and measure of proof should be as broad as the charges. The best evidence should be available in the search for fraud, or in disproving the charges of fraud. This best evidence is ofttimes locked up in the ballot boxes and the poll lists or books. When bona-fide charges of fraud are made it should be the policy of the law to unlock all competent evidence to either prove or disprove the charges. With this as the rule a determination of whether or not certain proof makes such a prima facie showing of fraud as to authorize the production of poll books or ballots, becomes unnecessary. This being our idea as to what the rule of law is, we decline to now say whether the irregularities in the registration lists show fraud or do not show fraud. That is one' of the matters for consideration when these cases are ultimately passed upon by the court. In other words, our views of the law make it unnecessary to pass upon the question at this time, and leaves it to be passed upon at the proper time in the course of the proceedings, i. e., when the case is finally submitted to us for decision. The parties must judge of the sufficiency of their proof before finally submitting their cases. If the means of proving fraud should be as broad as the charges, there is no question but that a witness can testify as to how he voted, as tending to show fraud or no fraud, but whether the unsupported testimony of the witness will set aside the face of the ballot, if it show to the contrary, is a question to be determined when the case is before us for decision, and not at this time. These views dispose of the matter before us, but inasmuch as we are of opinion that these views are not entirely in harmony witli some previous rulings of this court, and that the trouble with our commissioner has grown out of such previous rulings, we deem it proper at this time to discuss our ease law, in so far as it applies to the question before us.

In State ex rel. v. Spencer, 164 l. c. 33 it is said: “The pivotal question involved is whether the circuit court had power to order the election commissioners and the parties litigant to make a comparison of the ballots with the voting lists, and to require the election commissioners to return and certify to the court ‘all the facts which either of the parties to the aforesaid election contest may desire and request to have returned, and which may appear from the said ballots and the'examination and comparison thereof.’ ”

The above fairly states the question discussed in that case. The answer to that question by the same opinion is couched in this language: “So that up to this time the Legislature has only given the parties or their attorneys the right to fully examine the ballots and to require the clerk to certify all the facts which either of the parties may desire which appear from the ballots. No right has been given them to compare the ballots with the voting lists. Such a comparison would disclose how the elector voted, and thereby lift the veil of secrecy, without his consent, to the parties and their attorneys, and they would be under no obligation not to disclose the information so obtained, for their oath of secrecy is limited by the statute, ‘not to disclose any fact discovered from such ballots’ — not from such a comparison.”

To this doctrine we do not now and never have subscribed. The vice of the answer then given by this court lies in the language, “No right has been given them to compare the ballots with the voting lists.” Such a rule renders nugatory the constitutional provision for contests in election cases; A contest proceeding is but an empty shell- if all avenues of proof .are closed, as is done by this rule. To illustrate: A brings contest proceedings against B. A charges that John Jones cast an illegal ballot. It then becomes necessary for A to prove that Jones voted for B. An examination of the ballot does not show it. Say that Jones’s voting number was 25. The ballot would show the voting number and show that whoever cast that vote had voted for B, but it would not show that Jones had cast it. To complete the proof it is necessary to compare the number upon the ballot with the number 25 upon the voting list and if opposite that number upon the voting list is the name of John Jones, then the proof is made-and not before then. But' this the Spencer case says cannot be done. If not, contests in elections might as well be denied in toto, because they become at once but howling farces. Fraud of the grossest character may be charged, and may in fact exist, yet by this opinion it is hermetically sealed within the lids of the ballot boxes and the poll books. The fact as to how Jones voted cannot be shown by the ballot alone, nor by the poll books alone. It requires the two, and without the two before the court in some form, there can be no real proof.

Following the lead of the Spencer Case, we in Montgomery v. Dormer, 181 Mo. 5, reiterated the rule that there could be no comparison of the ballot with, the poll books so as to identify and connect the voter with the ballot alleged to be fraududent, but announced that it could be shown by the judges of the election as to how the challenged voters had cast their, votes. In other words in the Montgomery Case, the trial court under the ruling in the Spencer Case, supra, had been driven to the necessity of hearing the judges of election give their best recollection of how thirteen voters had voted'upon a certain office, and we said the circuit court was right, because the best evidence was locked up and could not be used. To the latter doetrine we do not assent, and this case like its predecessor is wrong. If the judges of election remembered just how a voter had voted, it might be proper for him to testify, because the Constitution relieves him of his oath of office, in the event of a trial where his evidence becomes necessary, but in the Montgomery Case we went further and said:

“The court had no authority to order the clerk to open the ballots and ascertain how these thirteen men had voted and report the same to the court, neither did the court have authority to require the clerk to bring the ballots into court for inspection and exposure.”

There again is re-announced the rule which in effect renders contests of elections as provided for in the Constitution nugatory. What judge of an election can remember how the individual voter voted upon any given question? What trial judge would believe a man who would undertake to testify to any great number of votes in this way? But above all what good reason can be assigned for shutting out the only real evidence and compelling trial courts to listen to mere secondary evidence? These two cases upon the point now under review are hereby overruled, and the same ruling applies to some later cases which have in a way undertaken to follow these two pioneer cases. Our reasons we assign in the next paragraph.

III. Whilst our Constitution and laws provide for the secrecy of the ballot they do not contemplate that this secrecy shall prevent the full and complete investigation of alleged fraud before the proper forum when fraud is in good faith charged. Section 3 of article 8 of the Constitution reads: “All elections by the people shall be by ballot; every ballot voted shall be numbered in the order in which it shall be received, and the number recorded by the election officers on the list of voters, opposite the name of the voter who presents the ballot. The election officers shall be sworn or affirmed not to disclose how any voter shall have voted, unless required to do so as witnesses in a judicial proceeding: Provided, That in all cases of contested elections the ballots cast may be counted, compared with the list of voters, and examined under such safeguards and regulations as may be presented by law. ’ ’'

By this section the bar of secrecy is raised by express terms when required in judicial proceedings. By it the election officers are required to keep’ secret the vote of the voter, but only to such time as he may be required to expose it in the course of a judicial proceeding. When required in a judicial proceeding to tell how a voter has voted such officer must disclose to the public ear the secret of the ballot. We say to the public ear, because courts of justice are public forums, and take no part in star-chamber proceedings. If the election officer must disclose the contents of the ballot, as he must under this constitutional provision, what then becomes of the secret ballot, so much discussed in the Spencer case? Witk its contents exposed by the terms of the Constitution we have but the faded paper securely locked in the ballot box by the Spencer and Montgomery cases, supra. The secrecy of the voter is gone. When the Constitution has been obeyed and the election officer has said that John Jones voted for B at a given election, this secrecy of that ballot that far is public property, and should be public property. But it is urged that there is no right to compare the ballot with the poll book and thus connect the'voter with the alleged fraudulent ballot. It is conceded that .the commissioner can examine the ballots and certify the result of that examination to the court,- but we must not have the poll books in evidence, so that we can determine whether a certain individual voted a given ballot. There is one section of statutory law not fully considered in either the Spencer or Montgomery cases supra. Such section throws much.light upon the alleged sacredness of these poll books.

Section 5911, Revised Statutes 1909, reads: “At the close of each election, the judges shall transmit one of the poll books, by one of their clerks, to the clerk of the county court in the county in which the election was held, within two days thereafter; if the poll books are not returned in the time provided, the clerk shall have the power to either send the sheriff or a messenger for said books; the other poll book shall be retained in the possession of the. judges of the election, open to the inspection of all persons.”

This section at least applies to the divers counties of the State. By it two poll books are required to be kept. One is a counterpart of the other. They show the same facts. Now note the language: “The other poll book shall be retained in the possession of the judges of the election, open to the inspection of all persons.” What becomes of the alleged sacredness of these poll books? What legislative intent does this statute disclose? Does it mean that were there a contest in Cole county the information gained from an open examination of this poll book would be unavailing in such contest case? Does it mean that if in the trial of such case it is made to appear that ballot number 25 was east for B, A could not compel the production of this open public record, and show that ballot number 25 was cast by John Jones, and then follow that proof by showing that John Jones had never been naturalized? We think not. When it is shown that ballot number 25 was cast in favor of B, the very statute which makes one of these poll books open for public inspection raises the much discussed “veil of secrecy,” because any person present at the hearing can examine this public document and see that such ballot was cast by John Jones. This statute is clearly expressive of a legislative intent contrary to closing the avenues of evidence in the trial of question of fraud. But this is not the only statute declaratory of such legislative intent.

Going now to the laws particularly applicable to the city of St. Louis, we find section 6228, Revised Statutes 1909, which reads:

“The judges shall fold in two folds and string closely upon a string or wire all ballots counted by them except those marked ‘defective,’ or ‘rejected,’ unite the ends of such string or wire in a firm knot, enclose the ballot so strung in an envelope, on which shall be endorsed, in .writing or print, the number of the precinct, date on which such election was held, and securely seal such envelope,' so that it cannot be opened without breaking the seal, and return said ballots, together with the package containing the ballots marked ‘defective’ or ‘objected’ or ‘rejected,’ in such sealed package or envelope to the election commissioners. Two of said judges of opposite politics shall, immediately after signing the statement of the result of the canvass and tally sheets and the sealing of the ballot box, go together to the office of the election commissioners and deliver said ballot box and the key thereto to said election commissioners, who shall keep the office open until all of said ballot boxes have been received. Immediately upon receiving said ballot boxes said commissioners shall give a receipt therefor to said judges and shall place them properly arranged in the order of precinct numbers in boxes which shall be securely locked. Said boxes shall be placed in a vault having a double lock, and said vault shall be locked and keys retained by commissioners of opposite political parties. Said election commissioners shall securely keep said ballot boxes for twelve months, not opening or inspecting them nor allowing any one else to do so, except upon order of court in case of contested election, or when it shall be necessary to produce them at the trial of any offense committed under this article. At the end of twelve months after said election, said ballots shall be destroyed: Provided, that if any contest of the election of any officer voted for at snch election, or prosecution under this article shall be pending at the expiration of said time, the said ballots shall not be destroyed until such contest or prosecution be finally determined.”

By the preceding section the poll books are required to be put into the ballot boxes. Under section 6228, supra, the commissioners are to securely keep such ballot boxes (contents, ballots and poll books). They are not. to inspect them (meaning the contents, not the mere naked boxes) nor permit anybody to inspect them, “except upon order of court in casé of contested elections, ’ ’ etc. In such excepted cases what are to be inspected? Most certainly the contents of those boxes, and this includes both ballots and poll books. Not only so but the commissioners in other cases are to securely keep them for twelve months, or until such time “when it shall be necessary to produce them (not the naked boxes, but the contents, the ballots and poll books) at the trial of any offense committed under this article.” Now where do these ballots and poll books go ? To a plain ordinary court of justice. For what purpose do they go? That they may be used in evidence on the trial of a cause. Not only so, but by the last clause of the section these ballots and poll books must be kept intact even after the expiration of twelve months providing a contest or prosecution is pending. Kept for what? Certainly not in seclusion and for no purpose as held in the Spencer case and cases following its trend.

But even this is not all. Section 5939, Revised Statutes 1909, reads:

“Either house of the General Assembly, or both houses in joint session, or any court before which any contested election may be pending or the clerk of any such court in vacation, may issue a writ to the clerk of the county court of the county in which the contested election was held, commanding him to open, count, compare with the list of voters and examine the ballots in his office, which were cast at the election in contest, and to certify the result of such count, comparison and examination, so far as the same relates to the office in contest, to the body or court from which the writ is issued.”

This section has long been on the books and is discussed in the Spencer case. That discussion, however, does not meet with our views. In that case the return to be made by the officials under the order of the court must be confined to what is shown by the ballots themselves, and not a return showing the result of an examination of the ballots, and the comparison of those ballots with the poll books. The plain reading of the statute is emasculated by the Spencer and Montgomery cases. The statute commands the clerk (1) to open, count and compare the ballots with the list of voters and examine the ballots, and (2) “to certify the result of such count, comparison and examination, so far as the same relates to the office in.contest, to the body or court from which the writ is issued.” Now, what result shall the clerk certify? The result of an examination of the ballots only, as said in the Spencer case?. We say no. The statute speaks for itself. The statute says ‘ ‘ the result of such count, comparison and examination.”

The Spencer case and those following it eliminated from the statute the result of the comparison of -the ballots with the poll lists, and in this thwarted the clear legislative intent as expressed by the statute.

Going further we find still another section which throws light upon the question. Section 5005', Revised Statutes 1909, in so far as applicable to the point in hand is concerned reads:

“And the ballots, after being counted,. shall be sealed up in a package and delivered to the clerk of the county court or corresponding officer in any city not within a county, who shall deposit them in his office, where they shall be safely preserved for twelve months; and the said officer shall not allow the same to be inspected, unless in case of contested elections, Or the same become necessary to be used in evidence, and then only on the order of the proper court, or a judge thereof in vacation, under such restrictions for their safe-keeping and return as the court or judge making the same may deem necessary; and at the end of twelve months, said officer shall publicly destroy the same by burning, without inspection.”

This section goes to the ballots themselves. It is a part of the general election laws. Section 5911, discussed supra, left one of the poll books open for public inspection. Both sections are in the same article. In the quoted portion of section 5905, supra,, note the language, “or the same become necessary to be used in evidence.” Used in evidence how? “Under such restrictions for their safe-keeping and return as the court or judge making the same may deem necessary. ’ ’

If this section does not disclose a legislative intent to the effect that the ballots themselves can be used in evidence in proper cases, I have misconceived what I take to be unequivocal language. In truth and fact this section contemplates that the ballots upon the order of the court may be taken from the legal custodian and used in evidence. At least it does contemplate that the legal custodian can be called upon to produce them for use in evidence before the court. Of course the court must arrange for the safe-keeping and return of these ballots after they have been used in evidence, but that this is a clear provision for their being used in evidence there can be no doubt.

In determining the legislative intent the whole body of the law must be considered, and not selected portions thereof.. We have, therefore, taken up some sections not discussed in the Spencer case. An examination of this body of laws as applied to the State at large and as applied to the city of St. Louis convinces us that the Legislature never intended to deprive a contestant of his right to show fraud by the best evidence, and never intended to hermetically seal the evidence of fraud in the ballot boxes and poll boohs, as is done by the Spencer and Montgomery eases, supra, and perhaps in a more modified form in some succeeding cases.

We have no doubt that if it becomes necessary in the progress of these cases for this court to inspect certain of the ballots, we would be acting within the Constitution and statutes to send for them, or direct our commissioner, under proper restrictions, to procure for us the needed information.

We shall not go further. Upon the questions discussed herein the Spencer and Montgomery cases, supra, and those following them, are overruled. The charges of fraud are thereby rendered susceptible of proof, if fraud in fact exists, and the question of a prima facie showing of fraud is out of present consideration. This permits the case to be tried as other cases, as a whole, leaving the parties litigant to decide for themselves whether or not the evidence introduced thus far proves fraud. That question we will determine when the case is submitted for our decision.

With these observations upon the law of tbe cases the questions propounded by our commissioner are recertified to him for determination.

Ferriss, J., concurs; Lamm and Woodson, JJ., concur in separate opinions by them filed, in which said separate opinions all concur; Valliant, G. J., dissents in an opinion filed bv him; Kennish and Broion, JJ., not sitting.

CONCURRING OPINION.

LAMM, J.

I concur in all either said or decided in the principal opinion, and add a few observations, dum fervet opus. The cases overruled were by no means intended to make a sanctuary for fraud, but, as pointed out by my brother Graves, they resulted that way. By lifting high the secrecy of the ballot and putting it on a pinnacle as the very be-all and end-all of the law, by so interpreting the law that secrecy became the central and controlling thought in our election laws, the vital matter of the chastity and integrity of the ballot was lowered away and made of mere secondary moment. As if, withal, it was more precious to. a free citizen to have for whom he voted kept secret than to have his vote counted at all or counted as cast. It is a upse precept of the law everywhere allowed as true that the greatest incitement to guilt is the hope of sinning with impunity. That precept it seems to me was ignored in the cases overruled. To do just and right is the chief commandment of the law. That great commandment was laid out of view it seems to me in those eases. "When this court adopted the new view that fraud could worm itself into and find a sanctuary in the ballot box, that the ballot box could be nailed up with its possible abominable secret of fraud safely hid away in its bowels, we thereby unintentionally put a barrier not to be overleaped in the way of proving fraud in elcetion contests. Whereby the law, which abhors fraud, which delights to follow it relentlessly high and low and snatch away its fruits from its doers, which thereunto permits a wide and minute search for it, which is fond of declaring that fraud vitiates everything polluted by its dirty hands, supinely permitted itself to stand baffled, helpless, puzzle-headed and paralyzed before fraud in the ballot box. Messieurs, the assassins of the ballot, might well smile when they awoke to that view of it. Not only so, but to protect the mere secrecy of the ballot an anomalous and dangerous ingenuity of device sprang up. For example, in State ex rel. v. Hough, 193 Mo. l. c. 632-3, we approved an order in a contested election case requiring the election commissioners of St. Louis to exclude not only the parties to the contest and their attorneys, but all other persons from their office, while comparing the nmnbers appearing on the ballot with the numbers appearing on the poll books, etc. What was that but prescribing a secret inquisition strange to the laws of a self-governing people? What was that but a vital step in the dark taken in a law suit in disobedience to the constitutional mandate that courts of justice should be open? In counties outside of St. Louis, with no election commissioners, it became the practice under that construction of the law to make an order in election contests allowing the county clerk to make such comparisons and compile data in secret, away from the eye of witnesses, the court or opposing counsel, and his certification of the result of this secret inquest was allowed deep significance by the trial judge. As if enormous temptations did not dog the footsteps of secret power! As if the trial judge could trust the county clerk with the secrets of the ballot and could not trust himself or the attorneys, officers of his court In one notable case, Hale v. Simpson, 198 Mo. 134, the records in our files will show that the county clerk in his certificate of facts, so secretly got at in the dark, entirely reversed the returns of one precinct, thereby electing his political friend by a majority of two votes. Now, this same county clerk had subscribed $50 to a fund to pay attorneys and costs to aid that very contest. He had retained counsel and the new doctrine permitted him to act as judge in the same case and so act alone, in secret, unchecked by any human eye or agency. It is indeed difficult to use the calm and venerable language of jurisprudence in dealing with a situation of that sort.

When we made the original order in the instant ease permitting attorneys to be present when the election commissioners were making their comparisons and preparing their data for the certificate made by them in this case we practically overruled State ex rel. v. Hough, supra, in that particular. By now overruling State ex rel. v. Spencer, 164 Mo. 23, in the matter discussed by my learned brother Graves, and overruling all cases following it, we put the investigation of fraud in an election case precisely on the foot of any other investigation of fraud so far as we can. Our ruling does not mean that the secrecy of the ballot should be exposed except in so far as it may be absolutely necessary, under the allegation of the pleadings in an elec-' tion contest, to show fraud, if any, and to that extent neither the Constitution nor the statutes protects the secrecy' of the ballot. In such ruling we but return to the practice in vogue for many years before State ex rel. v. Spencer engrafted an unsound and anxious innovation on the law. The opinion of our brother opens the door to a full search for fraud and that is right. It leaves contestants to carry the burden of the charges of fraud they make in their petitions, and that is right, too. It leaves to us to see whether when the proof is all in, the justice of the case is with contestants or contestees and such result is also right.

Ferriss, Wood-son, and Graves, JJ., concur; Kennish and Broivn, JJ., not sitting.

CONCURRING OPINION.

WOODSON, J.

I fully concur in all that is said by my learned associate, Judge Graves, in these cases.

And in addition thereto, I desire to say, in my opinion, his observations apply equally as well to the registration books and all other papers and documents required by law to be made and preserved in those counties and cities where the electors are required to register before voting; and for that reason., I tbink his opinion should embrace those books and papers.

All concur except Valliant, G. J., who dissents, and Brown and Kennish, JJ., who did not sit.

DISSENTING- OPINION.

VALLIANT, C. J.

This court has never decided that the secrecy of the ballot, which the Constitution requires, can be invoked to cover up or protect a ballot that has been cast by a man who had no lawful right to vote.

The decision in the case of State ex rel. v. Spencer, 164 Mo. 23, does not so decide, although it has been so interpreted... What was said in the opinion in that case must be understood as referring to the facts in that case. There the contestant had challenged in his petition the legality of practically all the ballots cast in the city at that election and had filed as an exhibit to his petition as a list of illegal voters a copy of the poll books with only a few names erased. So sweeping was his charge of illegality against the whole voting population of the city that he included even his own name. The order of the circuit court was as broad as the contestant’s demand; it ordered the board of election commissioners “to proceed to open, examine, count and compare with the list of voters in your office all the ballots that were cast at the general election aforesaid for the office of coroner for the term above mentioned. ’ ’ The result of that examination was to be certified to the court and become a’public record and thereby make public how every man in the city voted, whether he was a legal or illegal voter. This court decided that that was an unwarranted order. If it is thought we ought to overrule that case, then in my opinion we ought to wait doing so until a case comes to us involving the same principle.

In tlie majority opinion it is said: ‘ ‘ The framers of onr Constitution in providing for a secret ballot never dreamed that they were erecting’ a bulwark behind which fraud could lurk and propagate, and eventually run rampant through the land.” I concur in that as a proper construction of our Constitution on that point, but if that is intended as announcing a doctrine contrary to the former decisions of this court on that subject it is in my opinion founded on a misconception of what those decisions are and an oversight of what this court has expressly said on that subject. In Montgomery v. Dormer, 181 Mo. 5, the evidence showed that thirteen persons who were non-residents had voted and the judges of election having testified for whom the ballots of those persons were cast, the question was as to the legality of that testimony; on that point this court said: “Our Constitution and statutes (Sec. 3, art. 8, Constitution; Sec. 6995, R. S. 1899) expressly forbid election officers ‘to disclose how any voter shall have voted.’ But the voter there referred to is one who has voted when he had a right to vote, and not one who has voted in violation of the law. There is nothing in our law designed to guard the secrecy of a ballot that has been cast by one who had no right to vote. The law has no protection for a dishonest or illegal voter. Therefore, when it is first shown to the satisfaction of the court that a man has voted when he had no right to do so, it may be shown for whom he voted and his vote will be withdrawn from the candidate to whom it was given. ’’ That is the last utterance of this court on that subject and there is nothing in the reports to the contrary.

In the cases at bar the counsel on both sides have presented to the court an agreed statement of facts showing that certain persons voted at the November, 1910, election concerning whom certain facts appear in the evidence already taken. Counsel agreeing as to the facts, disagree as to the law applicable; counsel for the contestants contending that those facts show that those persons were not legal voters, and therefore the contestants have a right to go to the poll hooks to get the voting numbers of those persons and then go to the ballots to see for whom they were cast. Counsel for contestees contend that those facts do not show that those persons were not legal voters and hence the contestants have no right to know; for whom they voted.

In my opinion it is the duty of this court to consider those points of contention now, and if the court should decide that the facts so shown impeach the legality of the voter it should make an appropriate order to ascertain for whom his ballot was cast, and if the. court should decide that the facts so shown do not impeach the legality of the voter, then it should say so and refuse to make the order and that would end the contests. The court is' as prepared now as it will ever be to decide whether the facts shown in evidence by the contestants is sufficient to impeach the validity of the ballots challenged, and no good can result to either party by delaying.


author: BROWN, C. PER CURIAM.

text:
    O. J. BUTLER, Appellant, v. JACOB IMHOFF.
    Division One,
    December 23, 1911.
    1. EXECUTION: Return: Levy: Sale. The statutes governing the sale of lands under execution do not require an execution to be returned upon the first day of its return term, nor is a levy before the first day of the return term necessary to continue the execution in force during that term. The levy may be made or the execution may be returned at any day during the return term,, and the sale of the lands by the sheriff during that term would be effectual even though nothing had been done under the writ prior to that term.

      2. -: Levy: Recital in Sheriff’s Deed: Effect. The recital of a levy in a sheriff’s deed to lands sold under execution being neither required nor sanctioned by the statute, such recital is mere surplusage and should be rejected in considering the prima facie effect of the deed. Held, in this case, that a sheriff’s deed under an execution returnable to the September term, 1900, of the court is prima facie valid, although it recites that the sheriff “did on the 19th day of November, 1900, levy upon” the land in controversy — this when the September term continued beyond the last mentioned date.
    3. -: Sheriff’s Deed: Necessary Recitals: Levy. The things necessary to the validity of the title are to be recited in and proved by the sheriff’s deed to lands sold under execution. The deed must recite the execution and the matters stated therein, but not such matters as may be entered by the officer upon its back. The deed must show the manner in which the land was sold. This necessarily includes the fact that notice was given. These are the only things the officer is required to do when real estate is "taken” in execution, and they constitute the “taking.” These acts all constitute the “levy,” and any one of them is equivalent to taking the land in execution under the provisions of Sec. 2218, R. S, 1909.
    4. SHERIFF’S DEED: Corrected by Ex-sheriff: Sec. 2237, R. S. 1909. By virtue of the provisions of Sec. 2237, R. S. 1909, a sheriff may make, after his term has expired, a valid corrected deed to real estate sold by him under execution while in office.
    Appeal from Bollinger Circnit Court. — Hon. Charles A. Killian, Judge.
    Reversed and remanded.

      Bussell & Deal for appellant.
    The necessary recitals of sheriffs’ deeds are: First, names of the parties to the execution; second, the date when issued; third, the date of the judgment, order or decree, and other particulars as recited in the execution; and, fourth, description of the property, the time, place, and manner of the sale. R. S. 1909, sec. 2231. The foregoing recitals inform everybody of everything necessary to be known, and all else may be regarded as simply directory. Wilhite v. Wilhite, 53 Mo. 71; Davis v. Kline, 76 Mo. 310. The date of the levy of the execution was not a necessary recital of the sheriff ’s deed and a failure to recite the levy would not have vitiated the deed. Foulk v. Colburn, 48 Mo. 229; Buchannan v. Tracy, 45 Mo. 439. Under the authorities last cited, the first deed executed by the sheriff was sufficient to pass the title notwithstanding the erroneous recital as to the date of the levy, if there was in fact a levy made before the return day of the execution. When the error in the first deed was called to the attention of the sheriff, who in the meantime had retired from office, he had a perfect right, and in fact it was his légal duty to make a new deed for the purpose of correcting the error in his former deed. And in order for him to do this all that was necessary for him to know was that he had made an error in his former deed. This the sheriff did, and the amended deed having the necessary recitals was sufficient to pass the title and should" have been. admitted in evidence. Land & Lumber Co. v. Franks, 156 Mo. 688; 19 Am. and Eng. Ency. Law (1 Ed.), 457.

      Wilson Cramer for respondent.
    (1) A levy before the return day is essential to a valid execution sale. If made after the return day, the levy is void, the execution being functus officio. Lackey v. Lubke, 36 Mo. 115; Bank v. Bray, 37 Mo. 194; McDonald v. Gronefeld, 45 Mo. 28; City of Jefferson v. Curry, 71 Mo. 85; Rover on Jud. Sales (2 Ed.)', sec. 700; Freeman on Ex., sec. 106. (2) Unless otherwise directed by the party in whose favor it is issued, every execution is returnable at the next succeeding term of court. R. S. 1889, sec. 4898; Milhurn v. State to use, 11 Mo. 191. (3) The first day of the term to which an execution is returnable is the return day. Karnes v. Alexander, 92 Mo. 660 ; 3 Black. Com., 278; Bank v. Tome, 2 Spear’s Law (S. C.) 501; State v. Commissioners, 37 N. J. L. 394; Browning v. Jones, 4 Humph. (Tenn.) 69; Cash v. Tozer, 1 W. & S. (Pa.) 526. (4) An execution is presumed to have been returned, i. e., filed with the clerk, on the return day. Marks v. Handy, 86 Mo. 238. (5) The deed recites that the levy was made November 19th, after the return day of the writ, and is therefore void on its face. See authorities under Point 1. (6) Although the statute does not require in express terms that the officer shall state in his deed the date of levy, the recital of a levy, on a particular date, is the official statement of a material fact which must have occurred to authorize the sale, and one which must be shown by the return on the execution. Since both the time when the writ was delivered to the officer, which is directly required by statute, and the return must be indorsed on the execution, these facts should be held to fall within that clause of the statute relating to sheriff’s deeds, which says that they shall set out the date of the judgment, order or decree, “and other, particulars as recited in the execution. ’ ’ The recital of the time of levy is binding on the officer and the purchaser. Jordan v. Surghnor, 107 Mo. 520; Scharff.v. McG-augh, 205 Mo. 357. (7) In the sale of land under execution the sheriff acts in the exercise of a statutory power, which is exhausted when he has executed and delivered a complete and perfect deed to the purchaser. He cannot afterwards make a new deed contradicting the recitals of the first. Ware v. Johnson, 66 Mo. 662; Ilovey v. Wait, 17 Pick. 196; Thornton v. Miskimmon, 48 Mo. 222. The second deed is not an “amended” deed, but a new deed contradicting the recitals of the first, and is void. (8) It is well settled that the right of an officer to amend his return is not absolute, but that the power to allow amendments rests in the court, to be exercised upon such terms as may be just. Feurt v. Caster, 174 Mo. 289; Little Rock Trust Co. v. Railroad, 195 Mo. 669. Such being the law as to returns, how can an officer be permitted without leave of court, without memorandum, and upon his mere recollection, or assumed recollection, to destroy or change a former conveyance by executing another?
   BROWN, C.

This is an appeal from a judgment for the defendant in ejectment brought in the New Madrid Circuit Court, January 25, 1907, to recover a section of land in that county described as section five in township twenty-four of range fifteen, and removed to Bollinger county by change of venue. The plaintiff claims through the defendant," who admits his possession, by two sheriff’s deeds founded upon one sale made under an execution issued upon a judgment of one Depoyster against the defendant in the New Madrid Circuit Court for one hundred and fifty-one dollars and eighty cents, entered at the March term, 1900. The execution was issued July 28, 1900.

The September term, 1900, of the New Madrid Circuit Court adjourned on September 26th, the eighth day of the term, until December 3d, when it again adjourned until December 5th, on which day the land was sold by the sheriff, J. A. P. Willett, to James V. Conran and W. L. Stacy, through whom the. plaintiff deraigns his title. The sheriff’s deed to them was made the same day, and acknowledged at the following March term.

This deed contains all the statutory recitals, stating, among other things, that the sheriff “did on the 19th day of November, 1900, levy upon and seize all the right, title and interest of the said Jacob Imhoff” in the land conveyed, and the facts showing due advertisement of the sale. It purported to convey the section in controversy and section nine in the same township and range. It was acknowledged in open court, and the acknowledgment ordered by the court to be indorsed upon the deed, which was offered in evidence by the plaintiff. The defendant objected to its introduction on the_ground that it is void on its face, because it recites a levy made after the return day of the execution. The court admitted it “subject to. objection,” to which plaintiff excepted.

The plaintiff then offered another deed to the same land to the same grantees, dated December 17, 1906, purporting to be made “for the purpose of correcting the erroneous recital” that “said land was not levied upon until the 14£h day of November, 1900.” It was, in other respects, like the former one, except that it recited that the levy was made on the 17th day of August, 1900. This deed was made and signed by J. A. P. Willett, as “late sheriff of the county of New Madrid and State of Missouri,” and was acknowledged by him as such late sheriff, in open court on the same day, and during the September term of the New Madrid Circuit Court, and the court thereupon ordered the certificate of acknowledgment to be indorsed-by the clerk upon the deed.

The introduction of this deed was objected to by the defendant on the ground that the ex-sheriff had no right to make the amended deed more than five and a half years after the acknowledgment of the other, without an order of the court. This objection was sustained and plaintiff excepted.

Plaintiff then proved that the files in the Depoyster case, including the execution, were either lost or had been destroyed in a fire that burned the New Madrid courthouse in September, 1905, and introduced deeds showing title to whatever interest Conran and Stacy, the execution purchasers, could convey, and offered in evidence a deed of trust from Jacob Imhoff, dated February 16, 1896, conveying the lands to the Alexander County Savings Bank of Illinois, to secure the payment of a note, but without offering to connect himself with it in any way. He also introduced without objection, a proof of publication in the ordinary form of a notice of sale under the same execution of the land in controversy and section nine, in township twenty-four, range eleven, to be held September 19,1900, and evidence tending to show that on the first day of the September term this sale was postponed on account of the mistake in the advertisement describing section nine as being in range eleven instead of range fifteen. This notice was first published on August 18, 1900. One of his witnesses, Mr. Conran, who is a lawyer, and was contemplating purchasing at the sale, came to New Madrid on the first day of the September term. He said in his testimony: “I was shown the publication, shown his execution, and he had levied the same prior to the date of the sale in proper time, and on the proper land, and the printer had made a mistake in the description of one part of it, as I remember, and the land was incumbered, and for that reason that the misdescription had been made on a portion of it, the sale was not had in September. That is my recollection of it.”

At the close of plaintiff’s evidence the defendant demurred to it, the demurrer was sustained by the court, to which plaintiff saved his exception, and the court entered its judgment, and after the overruling of a motion for a new trial, to which plaintiff saved his exception, this appeal was taken.

I. The first question presented in this record and by the briefs of counsel is whether or not the first deed made by the sheriff to effectuate the execution sale under the Depoyster judgment is prima facie valid and effectual to convey the title of defendant. It is attacked solely upon the ground that it recites that the levy was made after the first day of the September term of the New Madrid Circuit Court to which it was returnable, that the law required that it should, on that day, be returned to and filed in the court that issued it, and that it then, whether so filed or not, became functus officio, so that any action taken by its authority would be void.

The whole subject of the appropriation of the lands of a judgment debtor by execution has, in this State, been pretty well covered by statute, to which we must primarily look for information, and it is only the gaps that are left which we must fill by resort to the rules of the common law which are enacted for such purposes. [R. S. 1909, sec. 8047.] The statutes provide (R. S. 1909, sec. 2175) that “every execution issued from any court of record shall be made returnable at the next succeeding term, unless the plaintiff, or person to whose use the suit was brought, shall otherwise direct; then it shall be the duty of the clerk issuing the same to make it returnable to the next succeeding term.” Whatever this may mean, it is, of course, not in the power of either the clerk or court to modify it. These words are simple and direct in their meaning, and neither say nor imply that the execution must be returned on the first day of the term. The Legislature appears to have applied the same interpretation, for, in section 2228, in which it is provided that, “In all cases where an execution is or shall be issued and levied by the proper officer upon real estate, and for any cause a sale of such real estate shall not be made at the next term of the court of the county in which such sale is to be made, the execution and lien created thereby shall remain and continue in force until the end of the second term of the court of the county where the land is situated, and until a term of said court is held, at which said real estate may be sold according to law.” There is no hint here that any mandate of the Legislature is necessary to keep the execution in force during the return term; that is taken for granted. But the needful thing is done. The whole of the next term is made its “return day.” In Lackey v. Lubke, 36 Mo. 115, a case cited by respondent in his brief, and in which an execution sale was in question where the “execution had run for a greater time than that allowed for two executions,” Judge Lovelace, for this court, citing Revised Statutes 1855, p. 748, section 54, which differs from the one we last quoted in containing the words, “without any fault of the officer,” said: “This section evidently goes upon the idea that the execution would be in force at the first term, and then if, without any fault of the officer, no sale is made, the execution is continued in force to the next term.”

The respondent insists, notwithstanding these provisions of the statute, that a “levy” in vacation is necessary to continue the execution in force during the return term. The question, what is a levy upon real estate, considered in the abstract, is one of the pleasantries of the law, but when concretely applied to one’s property rights, it becomes entitled to the most serious consideration. This court has confessed that the law is silent as to what acts are-necessary to constitute a levy. [Duncan v. Matney, 29 Mo. 368; Slattery v. Jones, 96 Mo. 216.] It seems never to have attempted a definition, but in Lackey v. Lubke it assisted us r&aterially in the consideration of this question. Still speaking of the section of our statute last quoted, it said: “If the mere indorsement of a levy on the back of an execution would keep it alive, this section would be unnecessary; for the sheriff could indorse the levy on the back of the execution on the same day it is issued. But what effect has a levy on real estate? or, in other words, the mere indorsement on the execution that the sheriff has levied it on certain real estate ? It is not felt by the defendant — it is, perhaps, not even known by him — until the land is advertised for such sale, and it has not infrequently been held that no levy need be indorsed on the execution at all.” The vague and illusive character of the thing which may present itself to the judicial mind in answer to the call of the “levy” finds an apt illustration in the leading case of Rogers v. Bonner, 45 N. Y. 379. In that case Cronse, on November 26, 1866, commenced suits against Bonner, in which he procured two warrants of attachment. In the afternoon of that day the sheriff went to the house occupied by Bonner to look for the books of account of Bonner and Pelton, which he did not find. While there, without informing Bonner or his wife that he had or should seize the house or lot, he made a pencil memorandum of them on a loose piece of paper, with intent to seise them under the attachment. The next day the judgments of the plaintiff were perfected and docketed. It" does not appear in the published case whether the “loose piece of paper” was ever seen after it had been written upon. The question was directly presented whether or not the attachments or the judgments were the prior lien. The court held in favor of the attachments, on the ground, apparently, that the sheriff,' when he wrote down their description, intended to make a levy, thus making the title depend on the state of mind of the sheriff when he wrote a meaningless memorandum on a piece of paper having no connection with the case. The danger of such a doctrine appears from its statement.

The Legislature has tried consistently to avoid this danger. It was early enacted (R. S. 1835, p. 254, sec. 10) that the clerk of the court shall “keep in his office a well-bound book, and enter therein an abstract of all executions issued out of his office, showing the date, the names of the parties, amount of debt, damages and costs, to what officer directed, the return (if any) and a reference to the book and page wherein the judgment, order or decree whereon such execution issued is entered. And every such clerk shall, moreover, keep a regular index to such abstract of executions, arranged alphabetically, both by the name of the plaintiff and defendant therein,” and that (lb., p. 256, sec. 18), the officer, upon its receipt, shall indorse on the writ the day of the month and year- when he received the same, and that “When real estate be taken in execution by any officer, it shall be his duty to expose the same to sale, at the court house door on some day during the term of the circuit court of the county wheré the same is situated, having previously given twenty days ’ notice of the time and place of sale, and what real estate is to be sold, and where situated, by at least six hand bills, signed by him and put up in public places, in different parts of the county, or by advertisements in some newspaper printed in the county.” [Ib., sec. 38.] The same act (Ib., p. 259, sec. 45) provides that the officer “shall make to the purchaser a deed . . . reciting the names of the parties to the execution, the date when issued, the date of the judgment, order or decree, and other particulars as recited in the execution, also a description of the property, the time, place and manner of sale, which recital shall be received as evidence of the facts therein stated.” This deed is, by an acknowledgment, or proof in open court, to pass under judicial observation, and to be further published upon the records of deeds; and is then ready to be introduced, without further proof of its validity, “in any court of this State,” as evidence of the title which it purports to convey.

All these provisions were continuously in force during the sixty-five years that have intervened between the time they were built into one general scheme for levying a judgment debt against the lands of the debtor by execution, and the making of this deed, and are still in force. We have quoted from them so fully, to show that they are not, in their relation to the older systems which had attempted to apply the nomenclature of the common law to a new use, patches of new cloth sewn into an old garment, thereby making the rents worse, but that they constitute a plan admirable for its simplicity, by which officers are clothed with the power to make land available to a writ which was originally framed for application to personalty only. The things necessary to the validity of the title are to be recited in and proved by the deed. It must recite the execution and the matters stated therein, but not such matters as may be entered by the officer upon its back. The deed must show the manner in which it was sold. This necessarily includes the fact that notice was given. These are the things, and the only things, the officer is required to do when real estate is “taken” in execution, and constitute the “taking.” The words “actual seizure” used in section 2195, Revised Statutes 1909, are equivalent to the word “taking” as its past participle is used in sections 2218 and 2221. In fact the very first definition of the word “take” in Webster’s International Dictionary is “to lay hold of; to grasp; seize;” and the second, “to gain control or possession of in any way.” These acts of the officer all constitute the “levy” under the execution and any one of them is equivalent to taking the land in execution under the provisions of section 2218. The officer has only to follow the statute, and is not required to do something not designated in it, and which this court has, thus far, failed to define. These omissions seem to have been intentional, for, by section 2199, which deals with those cases in which it is necessary to establish the lien of the execution, a method is provided for making a levy which amounts to a public appropriation of the land upon the records of the recorder of deeds.

The recital in the deed of a levy being neither required nor sanctioned by the statute, such recital, as contained in the deed in question, is mere surplusage, and should be rejected in considering its prima facie effect. [Shelton v. Franklin, 224 Mo. 342, 367; Hunter v. Miller, 36 Mo. 143, 147.] For this reason, and for the further reason that the sale of the land by the sheriff during the return term of the execution would be effectual, even though nothing had been done under the writ prior to that term, we hold that the first sheriff’s deed is prima facie valid, and that there is nothing in plaintiff’s evidence tending to impair such force and effect.

We have carefully read all the Missouri authorities cited by respondent and find none of them inconsistent with the foregoing conclusion. It is true that in Karnes v. Alexander, 92 Mo. 660, Norton, C. J., speaking for this court, said that counsel contended, and it might be conceded, that the first day of the term to which a writ of execution is made returnable is the return day, but he proceeded to show that such a doctrine would not control the case in hand because the execution was issued upon a judgment of á justice of the peace enforcing a special taxbill against the land sold: He held explicitly that where the judgment designates the land to be sold, the execution issued thereon continues during the entire return term.

II. 'Had the instrument-we have been considering-been absolutely void so that it would be equivalent to no deed, as is claimed by the respondent and held by the trial court, it was still competent for the sheriff who made the sale, after his term of office expired, to consummate such sale with the deed as was done in this case. [Land & Lumber Co. v. Franks, 156 Mo. 673, 689; Griffin v. Franklin, 224 Mo. 667, 683.]

The admirable scheme of the statute we have been considering- includes this contingency also, and demonstrates the foresight of the Legislature which framed it, and by its terms removes the very objections which are here urged against it in argument.

Section 2237, Revised Statutes 1909, which is also continued from the Act of 1835, provides: “When any officer shall have levied upon any goods and chattels, real estate ór other effects by virtue of any execution, and the term of service of such officer shall expire and be determined before or after the sale thereof, and before the purchasers shall have obtained a deed therefor, duly executed, such officer shall, nevertheless, have power to do and perform all things in relation to such execution and the sale of such property, and in making, acknowledging and executing a deed to the purchaser, in the same manner and like effect, to all intents and purposes, as if his term of office had not expired; and he and his sureties shall be subject to the like penalties, actions, proceedings and judgments for neglect, misconduct or failure therein, as if he still continued in office.”

It will be observed that this section applies only to such officers as have terminated their official relation by the expiration of their term of office, leaving their capacity to act in all other respects unimpaired; and it imposes upon them and their bondsmen responsibility for the completion of important duties undertaken during tljeir terms, many of the details of which would necessarily be preserved in their memories only.

Section 2239, referred to by Judge Burgess in Land & Lumber Co. v. Franks, supra, applies entirely to a different class and is framed upon a different theory. It provides that “when any officer shall die, be removed from office or disqualified, or shall remove from this State, after the sale of any property and before executing a conveyance therefor, as required by law, or after executing a defective conveyance therefor, the purchaser, his grantee, or any one claiming by, through or under the purchaser,” may, by verified petition, apply to the court for a deed, and that if the court is satisfied that the purchase money has been paid, it shall order the sheriff then in office to execute, acknowledge and deliver the same.

These two sections cover the whole ground of the execution of deeds after the sheriff who made the sale had ceased to hold the office; one of them applying to those officers who retain their natural and moral capacity to perform the duties imposed, and the other to those cases in which such capacity has ceased.

For the reasons státed, the judgment of the circuit court will he reversed and the cause remanded for such proceedings as shall be consistent with this opinion.

Bond, G., concurs.

PER CURIAM.

The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All the judges concur.