Conrad v. State

• Decision Date: 17 April 1893
• Citation: 12 So. 851,70 Miss. 733
• Court: Mississippi Supreme Court
• Parties: W. J. CONRAD v. THE STATE

12 So. 851

70 Miss. 733

W. J. CONRAD v. THE STATE

Supreme Court of Mississippi

April 17, 1893

March 1893

FROM the circuit court of Yazoo county, HON. J. B. CHRISMAN Judge.

On August 25, 1892, appellant was indicted in the circuit court of Yazoo county, for the unlawful sale of liquor on August 23, 1892, the county having voted against the sale of liquor at an election held under the local option law in August 1888. He was convicted in February, 1893, and sentenced to imprisonment in the county jail for sixty days, and to pay a fine of $ 100.

On the trial, it was shown that the defendant sold liquor in said county in May, 1892. Thereupon the defendant offered to introduce the report of the commissioners made to the board of supervisors in respect to the election held in said county under the local option, August 23, 1888, with a view to showing the insufficiency of the returns upon which the commissioners of election made their report that a majority of votes against the sale of liquor had been cast. No evidence aliunde was offered, but it was proposed to be shown by the statement of the returns contained in the report itself that the result had been improperly declared. The report contained a statement showing the number of votes cast at each of eleven precincts, showing a majority of seven hundred and four against the sale. But it was stated therein that no election was held at one precinct, and that no returns were received from two others. The maximum fine for the first offense, under the act of 1886, is $ 50. The opinion contains a further statement of the case.

Judgment reversed.

J. S Perrin and Barnett & Thompson, for appellant.

1. The offense with which appellant was charged was committed before the code of 1892 had gone into effect, and before the act of 1886 was superseded. Therefore, the penalty was fixed by the act of 1886, and it goes without saying that the fine of $ 100 was excessive. We assume, in any event, the case will be remanded, in accordance with § 4353, code 1892, that appellant may be properly sentenced.

2. In McDonald v. State, 68 Miss. 728, this court said the commissioners' return was made the evidence of the result of the election, and is the only admissible evidence on the subject. Now, the return offered in this case is a partial one. That it is a partial canvass of the votes cast at the election, is affirmatively shown. We are aware of the rule that, in civil contests over offices, and the like, in case of a partial return like this, the return is considered prima facie correct, and that the burden of proving that the omitted votes were sufficient in number to change the result, is thrown on the contestant; but that rule has no application. In the first place, it is not a question where the burden of proof rests, for, under the case above cited, no extraneous proof is admissible. In the next place, if it were a question of the burden of proof, this being a criminal case, the burden would be on the state, from which it never shifts. The argument is, not that the election was void, but that the return was insufficient to show what the result was. The court cannot, as a matter of law, know how many voters there may have been at the three omitted boxes. If it did, the result would be the same, for the return is the only evidence.

It may be said that, inasmuch as the return shows that it was made the day when the managers were directed to deliver the returns to the commissioners, it will be presumed that they waited until the prescribed time, and then did the best they could by making the return upon such reports as had been delivered to them. But this will not meet the difficulty, for the question is not solely as to the duty of the commissioners, but as to the evidential value of their return. The duty of the managers of election to report the votes cast at the boxes which were omitted, was purely ministerial, and they could have been compelled to perform it by mandamus. Myers v. Chalmers, 60 Miss. 772; McCrary on Elections, § 338.

It was necessary that all the votes cast should have been considered by the canvassers and a statement procured by them in some way, before their return could be received as sufficient evidence as to the result of the election.

We submit that no argument can render this return competent, under the statute, for the competency of the return is the same thing as its weight. It must be complete in itself and conclusive in itself.

This is not an attempt to attack the return collaterally by evidence aliunde, or to go behind the return and show it to be untrue. The proposition is to reject the return as evidence, because its value as such is destroyed by its own statements.

The rule against collateral attack should have no application to this case, because no method is provided to contest the result of a local option election by any direct proceeding. Schulherr v. Bordeaux, 64 Miss. 59.

A majority of the commissioners may declare the result. Fullwood v. State, 67 Miss. 554. And that majority may be of the same opinion as to the question to be voted on. Code 1892, § 1611. This leaves the commissioners masters of the situation, amenable to no authority, with no remedy for any wrong they may commit. Under the ruling of the lower court, they, or a majority of them, on any excuse to be expressed in their return, may count only the votes cast at such boxes as they may select, and declare the result from them, and thus defeat the will of the voters with...