State v. Taylor

• Decision Date: 22 May 1909
• Citation: 119 S.W. 373,220 Mo. 618
• Parties: STATE ex rel. VON STADE v. TAYLOR et al.
• Court: Missouri Supreme Court

119 S.W. 373

220 Mo. 618

STATE ex rel. VON STADE v. TAYLOR et al.

Supreme Court of Missouri.

May 22, 1909.

1. ELECTIONS (§ 314)—PRIMARY ELECTION — "ELECTION AUTHORIZED BY LAW" — FRAUDULENT RETURNS.

A general primary election held under Primary Election Law March 18, 1907 (Laws 1907, p. 263), providing for party nominations by direct vote, and declaring that the statutes in relation to the holding of elections shall apply to all primaries, is an election authorized by law within Rev. St. 1899, § 2116 (Ann. St. 1906, p. 1369), punishing the making of fraudulent returns of ballots cast at any election authorized by law.

2. ELECTIONS (§ 28)—PRIMARY ELECTIONS— LEGISLATIVE CONTROL — SECRECY OF BALLOT.

In the absence of any constitutional prohibition, the Legislature has plenary power to provide for the secrecy of the ballot at primary elections, and needs no express authority in the Constitution to enable it to do so.

3. ELECTIONS (§ 329)—PRIMARY ELECTIONS— CONSTITUTIONAL PROVISIONS — CRIMINAL PROSECUTION — PRODUCTION OF BALLOTS.

Under Const. art. 8, § 3 (Ann. St. 1906, p. 253), providing that all elections by the people shall be by ballot, that election officers shall be sworn not to disclose how any voter shall have voted, unless required to do so as a witness in a judicial proceeding, and that in all cases of contested elections the ballot cast may be counted, etc., ballots cast at a primary election held under Primary Election Law March 18, 1907 (Laws 1907, p. 263), cannot be opened and inspected except in case of contested election, and a court exercising criminal jurisdiction cannot order the production of such ballots on a trial for a violation of Rev. St. 1899, § 2116 (Ann. St. 1906, p. 1369), punishing the making of false returns of ballots cast at an election authorized by law.

In Banc. Prohibition by the State of Missouri, at the relation of Emil Von Stade, against Wilson S. Taylor and others. Provisional writ made permanent.

C. Orrick Bishop and Hugh Brady, for relator. A. N. Sager and F. W. Lehmann, for respondents.

GANTT, J.

Falkenhainer, assistant prosecuting attorney of the St. Louis Court of Criminal Correction, filed with the clerk of the St. Louis court of criminal correction an information signed and verified by himself, wherein he charged that the relator and others were on the 4th day of August, 1908, the duly appointed and qualified judges at the Second election precinct of the Third ward, at No. 1622 North Broadway, in the city of St. Louis, of the general primary election had and held on that day pursuant to the laws of this state for the choice and nomination of candidates for the offices of Governor, Lieutenant Governor, Secretary of State, State Auditor, Attorney General, Judge of the Supreme Court, and other state officers, to be filled at the general election in November, 1908; and that on said 4th day of August, 1908, relator and said other persons selected and appointed as judges for said precinct in said city appeared at said precinct polling place, No. 1622 North Broadway, and were duly sworn and entered upon their several duties as judges as aforesaid, and acted as such in the conduct of said primary for said election precinct, and that relator, E. Von Stade, and the said other judges, unlawfully and fraudulently, did wrongfully count the ballots cast at said general primary in the said Second election precinct of the Third ward on said 4th day of August, 1908, and did feloniously and fraudulently make a false return of the ballots then and there cast at said primary by then and there failing and refusing to count the ballots cast at said general primary on said date for certain candidates for the nomination of Governor of Missouri on the Democratic ticket, etc. The information then specifically named certain electors whose ballots were wrongfully and falsely counted and returned by relator and his associate judges as not having been cast for the candidates for whom they were voted.

Warrants were issued by the clerk of the St. Louis court of criminal correction upon said information, under which relator and his codefendants were arrested; each defendant gave bond before the judge of the said court, and were all arraigned and entered a plea of not guilty, and the same was set for hearing before Honorable Wilson A. Taylor, the judge of the said court, as an examining magistrate. On the 27th of August, 1908, an application was filed with the clerk of the said court on behalf of the state, signed by the said assistant prosecuting attorney and the circuit attorney of the city of St. Louis, in which it was stated, in substance, that: "The following evidence, documents, and papers will become and be material evidence at said hearing and trial, to wit: First, the ballot box and key to the same used in the Second precinct of the Third ward at the primary held August 4, 1908, and the contents thereof, to wit, the ballots therein cast at said primary, the said ballot box and key being the same delivered to the defendants as officers of election in said precinct and ward by the board of election commissioners, and to the said board returned by the defendants on the night of August 4, 1908, with the ballots cast or alleged to have been cast at said primary on said date. Second, the final returns and statements made by the judges and clerks of said election precinct, showing the result of the count of the ballots made by said judges and clerks as the same were cast or were presumed to be cast at the primary held in said precinct on the 4th day of August, 1908. That James L. Carlisle, Benjamin Schnurmacher, and Thomas K. Skinker comprised the board of election commissioners of the city of St. Louis, and John P. Ellsperman is the secretary of said board of election commissioners. That the aforesaid evidence, documents, and papers are in the official care, custody, and possession of said board of election commissioners and said Ellsperman, secretary as aforesaid, and that the facts to be proven by said evidence, documents, and papers cannot be established by any other evidence, and said evidence, documents, and papers are material and necessary as evidence in this cause. That the purpose for which this evidence is material and necessary is to establish the correctness or falsity of the count and return made by the defendants herein of the ballots cast at said primary in said precinct, etc., and that the same is sought for this purpose and no other. That it is the desire of the state to offer in evidence the face of the ballots found in said box, and not any of the indorsements which may be found on the back of the same." And the assistant attorney prayed for a subpœna duces tecum commanding the election commissioners to produce the said ballot box, key, and ballots before Judge Taylor. On the 28th of August, 1908, the court granted the application, and the subpœna duces tecum was ordered issued, and the cause continued until September 4, 1908. The relator and his codefendants filed their motion in said court to revoke the said order and to recall the said subpœna on the ground that the judge had no power, authority, or jurisdiction to require the reproduction before him of the said ballot box, key, and ballots, which motion was overruled. Thereupon, on the 3d day of September, 1908, the relator, Emil Von Stade, presented his application to the Chief Justice of this court in vacation for a writ of prohibition directed to Judge Taylor and the election commissioners prohibiting them from causing said ballot box to be opened and the ballots therein from being exposed, and from the further enforcing of the said subpœna duces tecum, and thereupon a provisional writ of prohibition was issued commanding the said judge of the court of criminal correction and the election commissioners to desist and refrain from exercising any jurisdiction or authority to cause said box to be opened and the ballots therein exposed, and commanded them to be and appear before this court in banc on the 13th of October, 1908, to show cause why a final writ of prohibition should not be entered against them as prayed in the application, and that in the meantime no further action in enforcing said subpœna duces tecum should be had. At the return day of the writ the election commissioners made return that they had complied with the order made on the 3d day of September, 1908, and had refrained from taking or permitting the ballot box to be opened and the contents exposed. Judge Taylor made a separate return, in which he stated that he had in all respects obeyed the writ of September 3, 1908, and had refrained from exercising any jurisdiction to cause said ballot box to be opened and the ballots therein exposed. For a further return he stated that the application for the issuance of the court's writ herein did not set forth facts showing that he, as judge of the St. Louis court of criminal correction, had exceeded his lawful jurisdiction in making the order for the issuance of the subpœna duces tecum commanding the board of election commissioners to appear with the ballot box and key used in the said election precinct at the primary on August 4, 1908, and the contents thereof, the votes or ballots cast at said primary; and that he had full authority and jurisdiction to make the order for the issuance of the said subpœna duces tecum to the board of election commissioners requiring them to bring said ballot box and to produce in evidence the ballots contained therein and purporting to have been cast at said primary. For a further return, Judge Taylor stated that in the action pending before him as judge of the said court of criminal correction, in which the judges and clerks of the said precinct and ward were charged with frauds and felonies in the conduct of said primary on August 4, 1908, the ballots contained in the ballot box constituted the best evidence of whether the votes cast at said primary were counted...