In People v. Hunt, 59 Cal. 430, the facts upon which the jury convicted the defendant of murder in the first degree were as follows: The defendant entered a certain bar-room with one T., and began to shove T. backwards and forwards against the bar. G. (the deceased) stepped up to the defendant, and told him not to strike T. any more. Defendant turned partly around, and said: What have you to do with this?" G. answered that he was a peaceofficer. The defendant then struck G., who turned and moved away; whereupon defendant drew his revolver and shot and killed G. The supreme court affirmed the order denying a new trial. It must be remembered that the killing was done without any provocation sufficient to reduce the crime to manslaughter; in fact that counsel for defendant admit that the evidence would sustain a verdict of murder in the second degree. form the surer test; and, if a recitation | indicted for the last killing, and was conthereof compels the mind of the listener to victed of murder in the first degree, and the the conclusion that the assault was made conviction was sustained by the court of with the willful and premeditated intent to appeals. kill, then he may conclude that the killing was murder in the first degree. To such a conclusion the jury was forced in this case. To such a conclusion are the members of this court forced. The defendant arms himself with a revolver. He declares that trouble is awaiting him; that he is indifferent to it; and that his life or the life of some one else will pay the forfeit. Thereupon, bent upon mischief, or inclined thereto, he enters a saloon, and, as he says, interests himself in Hakan's quarrel, which is of no interest to him, but, as others say, finds Hakan, and tries to force a quarrel upon him, and fails. Near by another altercation is in progress, so slight that those standing there pay no attention to it, but keep passing to and fro, as usual. Into this altercation the defendant forces himself, is told to mind his own business, and is pushed by the deceased, who is so recently aroused from the stupor of intoxication that he staggers backward as a result of his own act. The defendant then walks a few steps away, takes from his pocket the pistol which he placed there with the remark that "some one might get killed," directs the pistol at the stomach of the deceased, and shoots him. That is not all he stands there with the pistol in his hand, and pointed at the deceased, until the latter falls. Then he departs. We are forced to the conclusion that the defendant was seeking the occasion to which he referred in Wiegrun's saloon when he displayed his pistol; that he tried in vain to force a quarrel upon Hakan; that finding a quarrel elsewhere he forced himself into that, and there found the occasion to satisfy the remark he made when he placed the pistol in his pocket; that he shot in the furtherance of that remark; and that when he stood, pistol in hand, he waited to see if he had accomplished his purpose. The cases cited by appellant do not present facts similar to those in this case. In some of them there was no weapon of a deadly nature used; in some there was great provocation; and in some there was a question of self-defense. Of the cases cited, counsel seem to place most reliance upon those found in Parker's Criminal Cases. In the latest reports in the court of appeals of the same state will be found an authority, cited below, which, we think, is more closely analogous to the case under review. In the case of People v. Majone, 91 N. Y. 211, the testimony for the prosecution was to the effect that the defendant was living with his wife, and with her parents; that he had not lived peacefully with them; that upon the day of the killing he entered the room in which his wife, his mother-in-law, and a friend were sitting, and asked his wife to procure for him a paper from an adjoining bedroom; that she replied that she was busy; that he thereupon seized her by the arm, and led her to the bedroom, saying, "Will you go, or will I go?" and immediately shot her. He came back at once, and shot and killed his mother-in-law. It was further shown that the defendant had had the pistol for some time. The defendant was Whether a murder is in the first or in the second degree is for the jury to decide from the facts under careful instruction upon the law by the court. People v. Beckwith, 103 N. Y. 360–369, 8 N. E. Rep. 662; People v. Goslaw, 73 Cal. 323, 324, 14 Pac. Rep. 788; Territory v. Stears, 2 Mont. 324. By this it is not meant that the jury may declare every unlawful and malicious killing to be murder in the first degree, without any evidence of fact to justify them; but what is meant is this, that where there is evidence tending to show that an unlawful and malicious killing was committed willfully, deliberately, and premeditately, the verdiet of the jury will not be disturbed by this court. In this case the conduct of the defendant before the killing, his declaration before referred to, his arming himself with a deadly weapon at that time, his forcing himself into quarrels, the use of the deadly weapon, the shooting the deceased in such a part of the body as would tend to make the wound fatal, the absence of provocation, the defendant waiting until his victim had fallen, his rapid flight, and change of name, are evidence from which the jury, under instruction upon the law of the case, might well conclude that there was willfulness, deliberation, and premeditation. See the authorities cited. See, also, Whart. Hom. § 181, and cases there cited. It is urged that the court below erred in giving instruction No. 7, which is the ver batim copy of section 21, division 4, Comp. St., defining murder in the first and second degrees. The concluding words of the instruction, as well as of the statute, are as follows: "And the jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, designate by their verdict whether it be murder in the first or second degree." The purpose of this instruction is apparent. The court told the jury that it was the duty of the jury, and not of the court, to fix, by their verdict, the degree of murder, provided the jury found the defendant guilty of murder. The case does not fall within the rule cited by counsel, that, where a special instruction is given erroneously, the error (42 Kan. 54, 120) STATE ex rel. BRADFORD, Atty. Gen., v. (Supreme Court of Kansas. June 7, 1889.) COUNTY-SEATS-ELECTION-FRAUD. 1. The refusal of an election board, composed exclusively of the partisans of one town, in a countyseat election, to permit representatives of the opposing town to be present in the polling-room during the reception of the vote, is evidence of a corrupt and dishonest purpose in the conduct and re will not be cured by a general instruction 2. The failure of the judges and clerks of an election, for the location of a county-seat, immediately after the close of the vote, to make certificates of the number of votes polled, and post one on the outside of the polling place, and forward the other, under cover, to the county clerk, is evidence of a fraudulent purpose. clerks of an election to make any public statement, 3. The neglect or refusal of the judges and or to answer repeated inquiries as to the number of votes polled in the township or precinct in which they acted, is evidence of a dishonest purpose. 4. When the judges and clerks of an election so place the ballot-box that a voter cannot see or It is urged that the court below erred in determine that the identical ballot he gave to the officer is deposited in the ballot-box; and when the refusing to give the following instruction, member of an election board, whose duty it is to as to character, requested by defendant: receive the ballot from a voter, so conceals the "In determining whether or not the defend-box from a voter, by a movement of his body, ant acted upon a sudden heat of passion, that the voter cannot see or determine that the caused by a provocation apparently suffi- identical ticket he gave the officer was deposited cient to make the passion irresistible, as de- in the box; and when the member of an election fined to you by the court, and without mal- board, whose duty it is to receive the ballot from a ice or deliberation, you must take into con- from the view of the voter, and is requested by the voter, stands in front of the box, and conceals it sideration all the circumstances existing at voter to stand aside, so that he can see that his and about the time of the shooting; ballot is deposited in the box, and the officer whether or not the deceased was making refuses to do so,-all such acts are evidence of a an attack upon the defendant; the nature dishonest purpose. of the attack, if any; the relative size and strength of the parties; and the character of the deceased for violence." 5. The prima facie character of the declaration of the county board of canvassers is at once destroyed when it appears that the party in whose favor the declaration is made destroys, suppresses, or steals the returns upon which it was based. 6. The returns of an election held in a certain township for the permanent location of a countyseat must be entirely ignored when it is shown that the board of election would not permit any ing-room during the reception of the vote; that one of the opposing party to be present in the pollthe board failed or neglected to make the certificate required by law as to the number of votes that were polled, and to post it on the outside of the polling-room; that the board refused to state or proclaim the number of votes polled; that by the fraud of the judges and clerks, assisted by outsiders, a greater number of votes were returned these fraudulent votes were so mixed up with the than there were voters in the township; and that honest vote that it could not be determined how many were honest and how many fraudulent, and no evidence was offered tending to show the result by the votes of the electors possessing the necessary qualifications. We might assign several reasons for sustaining the action of the court below in refusing this request. There was no evidence of any provocation which was apparently sufficient to arouse an irresistible passion, and this the counsel admit, when they abandon their claim that the gravest crime shown was manslaughter; therefore it might be claimed that the court properly refused the instruction for that reason, even though the request may have been proper if confined to the question of deliberation alone. Again it might be urged that the instruction was elsewhere given, but we pre fer to base our conclusion that the request to instruct was properly refused, upon the following ground, viz.: The request assumes that the character of the deceased for violence had been proved; at most, the defendant was entitled only to an instruction tain township must be entirely ignored when it is calling the attention of the jury to the evi- shown that the election board is composed of memdence upon this point. In this case the as-bers of a secret and oath-bound society, banded sumption of the bad character of the de- together for the purpose of selling their votes to ceased was particularly faulty, because that town for the permanent county-seat of the there was very slight legal evidence tending county that would pay them the most money; that to such a conclusion, as most of the wit- they had a promise of a large sum of money from nesses gave their opinions, and not the rep-sum of $100, to be divided between them; that one one of the towns; that they were promised the utation of the defendant. 7. The returns of an election held in a cer of the judges changed ballots, substituting for them ballots in favor of the town that had made such promises; that a large number of the members of the society voted, on the strength of this promise, for the town making the promise; that the board would permit no one of the opposing party to be grant-present during the reception of the vote. The judgment and order appealed from are affirmed, and it is hereby ordered that the judgment of the court below be carried into execution upon the 9th day of August, A. D. 1889, in accordance with the terms thereof, as modified by the reprieve ed by the governor of Montana. BLAKE, C. J., and LIDDELL, J., concur. 8. In an election for the permanent location of a county-seat the votes of members of a secret society, who pledged themselves by signature and oath to vote for that town for county-seat that would pay the most money, and who voted for the | oath-bound society, with an agreement location of the county-seat for a town whose rep- that the members thereof would cast their resentative men had promised them a large sum of votes for the permanent location of the money to so vote, must be rejected, and not count-county-seat for the town that would pay ed in favor of such town. VALENTINE and JOHNSTON, JJ., concurring. HORTON, C. J., agrees to all the points decided in the foregoing syllabus, but further decides that in his opinion the testimony in the case discloses so much fraud, corruption, and bribery that the election was a travesty upon justice, and therefore wholly void. (Syllabus by Simpson, C.) ON REHEARING. In an action involving the question of the result of a county-seat election, in which election gross frauds and irregularities occurred, but where it can be ascertained from the evidence that a particular place received a majority of all the votes actually cast, a majority of all the votes cast by legal voters, and a majority of all the votes cast by honest voters, such place should be held to be the county-seat. And this is especially true where the principal frauds and irregularities were committed by the friends of the other place. JOHNSTON, J., concurring. HORTON, C. J. I do not concur in the conclusions of fact found by the court; nor in the conclusions of law, as applied to the particular facts of this them the largest amount of money for their Votes; that this conspiracy consisted of about 72 resident electors of these two townships: that immediately preceding the election the members of this society were informed by their agents that the society had received a bond in the sum of $10,000, signed by prominent and responsible citizens of the town of Cimarron, conditioned that the sum of money mentioned therein was to be paid to the members of the society if they cast their votes for the town of Cimarron for permanent county-seat; and that, acting under the belief that the bond was a valid one, and that the money would be paid according to its terms, 48 members of the society residing in Foote township, and 24 members residing in Logan township, each voted for Cimarron for county-seat. The answer also alleges that the judge of the election, whose duty it was to receive the ballots from the voters, in Foote township, changed at least 10 ballots that were for Ingalls, and deposited in lieu thereof the same number of ballots for Cimarron; and that the members of the election board in that township were all members of the seApplication by the state of Kansas, upon cret society, and that they all had knowlthe relation of S. B. Bradford, the attor- edge of, connived at, and permitted the alney general of the state of Kansas, for a leged fraudulent substitution of the ballots; writ of mandamus to A. F. Malo, as sher- and that the true results were different from iff of Gray county, Kansas; J. L. Cailey, as the returns. The vote as returned from clerk of the district court; George B. An- Foote township was 117 for Cimarron, and trim, as county clerk J. H. Williams, as 25 for Ingalls. In Logan township there county treasurer; E. J. Clark, as register was returned for Ingalls, 69, and for Cimarof deeds; F. P. Hammer, as superintendent ron, 35. With respect to Cimarron townof public instruction; J. R. Brady, as pro-ship, the allegations of the answer are that, bate judge; J. L. Bower, as county survey- while there was returned by the election or, and George W. Dunn, as county attor- board 494 votes for Cimarron, and 45 for ney, of said county of Gray. Ingalls, in fact only 438 votes were polled, and of these Ingalls received at least 100, leaving only 338 for Cimarron; that the board of election in that, township know case. (Syllabus by the Court.) Commissioner's decision. Original proceeding in mandamus. L. B. Kellogg, Atty. Gen., Ed. A. Austin, Johnson, Martin & Keeler, Waters, Chase & Tillotson, and A. J. Bryant, for relator. C. N. Sterry, George W. Dunn, J. T. White-ingly and fraudulently permitted the ballaw, and M. W. Sutton, for respondents. SIMPSON, C., (after stating the facts.) This is an original action in this court, commenced by the attorney general in the name of the state, to compel the defendants, who are county officers of Gray county, to remove their offices from the town of Ingalls to the town of Cimarron, alleging the latter place to be the permanent county seat of the county. The material allegations in the writ of mandamus are that at an election held in Gray county on the 31st day of October, 1887, for the permanent location of the county-seat, the town of Cimarron received 753 votes, and the town of Ingalls, 713 votes; that the returns of said election were duly canvassed by the board of county commissioners, and Cimarron declared the permanent county-seat of said county; that notwithstanding that official declaration the defendants named in the writ persist in keeping their offices at the town of Ingalls. To avoid the result as shown by the returns the answer of the defendants to the alternative writ alleges that the returns from Foote and Logan townships are false and fraudulent; that in these townships there existed a secret, lot-box to be stuffed with seven or eight hundred fraudulent ballots for Cimarron; that they consumed unnecessary time in the count, waiting until they had learned the result of the other townships in the county, withholding all knowledge or declaration of the number of votes polled at that precinct, and then counted enough of the fraudulent ballots in the box to give a majority for Cimarron. The votes in controversy, then, are those from Foote, Logan, and Cimarron townships. It is claimed by the relator that in Cimarron township the agents of Ingalls were present all day at the polls, or about the town, buying votes for Ingalls for the county-seat, and the evidence details circumstantially instances of voters that were bribed to vote for Ingalls. These are the principal questions for investigation and determination. The evidence is unusually voluminous, even for a county-seat case, aggregating over 3,000 pages of printed matter. We have waded through the scum, filth, and mercenary degradation of this record, and find but little to commend in the action of either party. We must conclude as a matter of legal inference, from want of attack more probably than from any other one circumstance, that there were some hon- sons friendly to Cimarron were permitted est votes cast at that election. There is to be in the polling-room during the entire nothing left for us to do but to endeavor time of receiving votes, counting them, and to give expression to the declarations of an making returns. In the township of Inhonest majority. We hope and trust that galls one of the judges of election was a we have found it rightfully. Gray county Cimarron man, and voted for that town, was organized by proclamation of the gov- and he states that he was put on the elecernor on the day of July, 1887. At tion board because he was a Cimarron the date of the filing of the memorial for man. In Logan township this matter was organization of thecounty, there were 1,355 discussed at the time of the selection of voters returned by the census taker. The judges and clerks of election, and it was vote for the temporary location of the agreed that one R. S. Moudy, who was county-seat was as follows: For Cimar-known to be a supporter of Cimarron, ron, 705; for Montezuma, 560; for Ingalls, should be one of the judges of election. He SS; and for the center of Gray county, 1. was chosen, acted as such, and voted for The temporary board of county commis- Cimarron. In Hess township, R. J. Maxsioners divided the county into townships field was elected as a member of the election named Cimarron, Montezuma, Ingalls, board. He was a friend of Cimarron, and Hess, Foote, and Logan. Logan lies north of Ingalls, and Montezuma south; Foote lies north of Cimarron, and Hess south. The declared result of the election of October 31, 1887, by townships, is as follows. Ingalls. Cimarron, voted for that town. He testifies that it was general talk among the people who assembled to elect the board in the morning that both sides should be represented on the board, and that he was elected because he was a Cimarron man. In Montezuma township a number of persons who supported Cimarron for the county-seat were in and out of the polling-room during the entire day, coming and going at their pleasure. They were permitted to be where they could see the ballots cast during all the time, and see every voter that offered a ballot, and the votes counted, and were also permitted to have two challengers on the outside. In the townships of Logan, Ingalls, Montezuma, and Hess the Ingalls men were in the large majority, and had full and complete control of the polls, and the selection of the election board. In the townships of Cimarron and Foote the friends of Cimarron were largely in the majority, and had control of the election, and the friends of Ingalls were not permitted to have either a judge or clerk of the election friendly to that town, nor was any one representing Ingalls or the candidates for county offices on the Ingalls ticket permitted to have access to the room in which the election was held during the day. It seems to be clearly established by these facts that the proposition made by representatives of Ingalls to the Cimarron people preceding the election was made in good faith, and faithfully ad 1. For some time preceding the election, the people of Ingalls endeavored to make an agreement, and perfect such an arrangement with the people of Cimarron, as would have resulted either in an honest election, or in furnishing undoubted evidence of a fraudulent one, if the negotiation had been successful. The proposition submitted by the representatives of Ingalls to those of Cimarron was this: They pro-hered to by the Ingalls men on the day of posed to permit the citizens of Cimarron to select two reputable men to be present at the election and count in all the precincts of the county which were known to be favorable to the town of Ingalls for countyseat, and in return asked to have two representatives present at the election and count in all the precincts known to be favorable to Cimarron for the county-seat. These representatives of the respective towns were to be in the room in which the election was to be held in each of the precincts; to witness the reception of the ballots, the count, the sealing of the ballots in the boxes. They were to be permitted to inspect the poll-books before the same were sealed up and transmitted to the county clerk. This proposition was refused by the representatives of Cimarron. On the day of election, in all the precincts controlled by the partisans of Ingalls, a representative Cimarron adherent was chosen as a member of the election board, except in Montezuma township; but in that township per election, notwithstanding the refusal of the Cimarron people to accede to their request. It seems clearly established, also, that the refusal of the Cimarron people to allow Ingalls, and the candidates for county offices on the Ingalls ticket, to have representative friends in the polling-rooms of Foote and Cimarron precincts, was because they intended to conduct the election in these townships in a corrupt and fraudulent manner. They denied to all those interested in Ingalls, and to all others who thought that for any reason the permanent county-seat of Gray county ought to be located in that town, and to all those persons who were candidates for office on what was known as the "Ingalls Ticket,” a right clearly given them by the statutes of this state. We consider this denial as a strong circumstance clearly indicating a fraudulent intent on the part of the Cimarron managers to dishonestly and corruptly conduct the election. And if there were no other facts pointing in the same direction, and this fact stood alone, we should require | only tend to more strongly impress our a strong showing to relieve it of that irre- minds with the conviction that there was sistible inference of bad faith and dishonest an evident purpose and predetermined deconduct that is inseparable from a refusal sign on the part of the Cimarron people to to let all see what was going on in the poll- commit frauds in these two townships. ing-room. If an honest election was in- There are many other circumstances that tended, the adverse party would be invited strengthen this conviction, and among the to inspect every act. It is an unmistakable principal ones is the action of the county badge of fraud, and stamps every election clerk in making the supplemental registraboard that refuse inspection with a flagrant tion. Section 4, c. 128, Laws 1887, requires violation of the law at the threshold of a supplemental registration to be taken by their duty, and I believe ought of itself to the county clerk daily from the time of his be sufficient to cause the rejection of the re- qualification until five days prior to the turns of any township whose board of elec- time fixed for the first election. The mantion pay no regard to the mandates of a ner of making this supplemental registralaw framed and passed for the express pur- tion list is prescribed by the act, and a form pose of preventing and exposing dishonest is prescribed, showing the date of the regispractices at an election. Section 18 of the tration, the age and nativity of the voter, general election law provides "that the his place of residence, and requiring a dejudges of election shall, if requested, permit scription of his land, or the number of his the respective candidates, or one or more, town lots, and various other things that not exceeding three, of their friends to be would make his qualifications certain, and present in the room where the judges are, his identity reasonably sure. The polling during the time of receiving and counting list is prepared from the duplicate census the votes." It is doubtless true that under schedule and the supplemental registration some circumstances the mere refusal of the lists. In this case it is admitted that the election board to permit candidates or their county clerk, who was in the interest of friends to be present in the room during the Cimarron, made the supplemental registracontinuance of the election, when such re- tion lists in the following manner: He took fusal is unaccompanied by evidence of other the blank polling-lists, and proceeded to fraudulent acts, is but such an irregularity put on them the names of persons having as will not vitiate the returns. Gilleland v. the qualification of electors, whose name Schuyler, 9 Kan. 569. But in cases where appeared on the enumerator's census, and there is direct and positive evidence estab- as a voter came in to register supplementlishing the fact that there was perpetrated ally he would register them on the several a gross and corrupt fraud, either by stuffing polling-lists, and these polling-lists, when the ballot-box, by repeating, or by the complete, were sent to the election officers manufacture of false and fraudulent poll- of the several election precincts, leaving books and tally-sheets, then such a refusal on file in his office the enumerator's cenbecomes very important as sustaining the sus, but no record of the supplemental regdirect or circumstantial proof of the crime, istration until the polling-lists should be by showing the preparation and opportu- returned after the election. This is not nity for its commission. The construction the manner of making out the supplesought to be given this statute by the elec- mental registrations pointed out by the tion board of Cimarron township, that they statute, as by it there is no record of had the right to say what persons among such registration left in the county clerk's the opposition should be admitted, is a vil-office for public inspection. We have no lainous one, and totally nullifies its provis-doubt but that in this particular instance ions. The candidates have the sole andex- the manner employed was a deliberate declusive right to designate the persons who are to represent them in the polling-room, and the election board that suggests or expresses a preference for others should be regarded with suspicior. If this statute is obeyed, and its provisions observed, the frauds that have become an integral part of every county-seat election would cease to exist. It seems to me that this is the most important and effective provision that is made by the legislature to secure an honest election; that it is a matter of substance more directly affecting the conduct of the election than any other section of the statute regulating elections; that if it is faithfully observed, one of two things imperatively follow, and these are that either there is a fair election, or the evidence of fraud is primary and convincing. We have neither the time nor inclination to reproduce here the repeated efforts of the Ingalls party to be allowed to have representatives of that town in the rooms in which the elections were held in Cimarron and Foote townships, and the persistent refusals of the adverse party to allow it. Suffice it to say that they made an honest effort to do so, and their repeated failures sign, and for a definite purpose. Repeated efforts were made to inspect the supplemental registration lists before the election, and copies were demanded, and fees tendered for that purpose, but the clerk faile 1 either to furnish copies or permit an inspection. One demand was enough to make of a public officer for an inspection of a public record. Any citizen of Gray county had the unquestionable legal right to inspect these supplemental registration lists, and take copies of them, if he so desired, and it was the duty of the county clerk to furnish, on demand, the fees being tendered, a certified copy of the same. His refusal to do so was a gross abuse of an official trust, and is accumulated evidence of a dishonest purpose. It happens in this particular case that the polling-list, the poll-book, and tally-sheet of the election held in Cimarron township on the 31st day of October, 1887, for the permanent location of the countyseat of Gray county, and for the election of county officers, have all mysteriously disappeared, and, there being no original supplemental lists on file in the county clerk's office, by reason of his non-compliance with the plain requirements of the statute in |