The defendant was indicted, with others, at the June term, 1908, of the circuit court of the city of St. Louis, with having, as one of the judges of the election, at the “general primary” held in the city of St. Louis on August 4, 1908, made a false and fraudulent return. A demurrrer to the indictment was overruled and defendant was arraigned and pleaded not guilty. At the October term he was tried and convicted and his punishment assessed at four years'in the penitentiary. His motions for new trial and in arrest were beard and overruled, and from the sentence imposed he has appealed to this court.
The offense for which the State sought a conviction is defined in sections 2116, 2117, Revised Statutes 1899, in these words: “If any judge or clerk of any •election authorized by law . . . shall in any manner illegally, willfully and fraudulently change or at*421tempt to change, or induce any other person to change, the true and lawful result of any election, by any act to be done either before, at the time of or after such election, by a wrong count of the ballots, by changing the true returns or making a false return thereof, or by changing the figures of the returns after they are made up, either before or after the returns are duly made, or in any other manner except in pursuance of law or the order of the court . . . shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding five years, or by a fine,” etc. .
The indictment, after stating there was a general primary held in St. Louis on the 4th day of August, 1908, for the choice of candidates for all political parties within the State of Missouri for state and county offices and that defendant McGrath and William Gamache were selected, appointed and qualified according to law to serve as judges for said primary for the second election precinct of the third ward, and certain others as clerks, all appeared at the polling place on said date and conducted said primary in said precinct and that defendant and said other judges and clerks on said day illegally, fraudulently and feloniously did change and attempt to change the true and lawful result of said general primary, by making a wrong count and false return of the ballots then and there legally and lawfully cast at said general primary and while the same was in progress, for the various candidates for Governor except Mr. Cowherd and for various other candidates for state and city offices for both Democratic and Republican candidates, by then and there illegally, fraudulently, willfully and wrongfully refusing and failing to count said ballots, as aforesaid legally and lawfully cast for said candidates, and by then and there illegally, willfully, fraudulently, feloniously and wrongfully counting and falsely returning the same in the following manner, to-wit, by then and there counting and returning the ballots of (here follow the *422names of some thirty-two different electors, with the number of their residence, with the allegation that they were counted as voting for one candidate for a specified office whereas they voted for other and different candidates), and then concludes: “and that all of said ballots so cast as aforesaid were wrongfully and falsely counted and wrongfully and falsely returned by the said Thomas McGrath, William Gamache, John Sullivan and Walter F. Guilford to the Board of Election Commissioners of the city of St. Louis as not having been cast for the candidates for whom they were voted as aforesaid., against the peace and dignity of the State.”
I. It is the settled law in this State “that in all indictments for felonies the criminal act must be alleged to have been feloniously done.” [State v. Murdock, 9 Mo. 730; State v. Gilbert, 24 Mo. 380; State v. Clayton, 100 Mo. l. c. 519.]
This offense is statutory, and the question arises, is it necessary to use the word feloniously in charging it? Bishop in his New Criminal Procedure, vol. 1, sec. 535, says: “In statutory felony, opinions are not quite uniform as to whether the indictment must have the word ‘feloniously,’ if not in the statute. Reason just as much requires it in the statutory as in the common law indictment. And in the absence of legislative command, the English courts compel it (Reg. v. Gray, 9 Cox C. C. 417, 419; Leigh & C. 365), and so do those of apparently the greater number of our States,” citing State v. Murdock, 9 Mo. 730; State v. Davis, 29 Mo. 391; State v. Williams, 30 Mo. 364; State v. Deffenbacher, 51 Mo. 26; State v. Weldon, 70 Mo. 572. Each of these decisions by this court sustains the learned author’s statement of the law and settles the law in this jurisdiction.
The indictment is challenged as insufficient in that it does not charge that the defendant and his associate *423judge and clerks feloniously and fraudulently, and willfully returned the said ballots as not having been cast for the candidates for whom they were voted, but merely charges they were wrongfully and falsely returned to the Board of Election Commissioners of the city of St. Louis as not having been cast for the candidates for whom they were voted. The offense denounced by the statute is liable to be punished by imprisonment in the penitentiary and thus by force of our statute is a felony. [Sec. 2393, R. S. 1899.]
It remains then to determine whether this indictment measures up to this requirement.
In State v. Krueger, 134 Mo. 262, an indictment for this offense was considered by this court and it was held that an indictment, which did not particularize the ballots alleged to have been fraudulently voted (in this case falsely counted and returned), was insufficient. In this case the pleader evidently sought to avoid that defect by naming the electors whose ballots were wrongfully and falsely counted and does in the general charging clause allege that defendant and his associate judge and clerks unlawfully, intentionally, wrongfully and fraudulently and feloniously did change and attempt to change the true and lawful result of said general primary and in said precinct by making a wrong count and false return of the ballots cast for certain named candidates, and by then and there unlawfully, intentionally, wrongfully, feloniously and fraudulently counting and fraudulently, feloniously, intentionally and unlawfully returning said ballots in the following manner by then and there counting and returning the ballots (here naming the certain electors and the candidates for whom their ballots were wrongfully counted and the candidates for whom they were really cast). After specifying these ballots, the indictment then alleges: “that all of the said ballots were wrongfully and falsely counted and wrongfully and falsely returned by the said Thomas McGrath, William Gamache, John Sulli*424van and Walter F. Guilford to the Board of Election Commissioners of the city of St. Louis as not having been cast for the candidates for whom they were voted as aforesaid.” The gravamen of this charge is the making of a false count and return. It is obvious from the authorities above noted that in order to charge the crime of making a false and fraudulent return it must be charged to have been feloniously, made. [State v. Brown, 8 Nev. 208; 22 Cyc. 333.]
Learned counsel for the State say this last clause in the indictment can be ignored and treated as surplusage and if omitted there is still a valid charge. But what is meant by “making a false return thereof.” Nowhere else in the indictment is there any attempt made to charge a “return” within the meaning of the law. What constitutes the returns in an election in St. Louis is provided ih section 7324, Revised Statutes 1899. They consist, in short, of the certificates of the judges and clerks to the statements required by the statutes, together with the lists of voters and tally sheets, duly enclosed and sealed, in the ballot box which is sealed and the key removed, and these papers and the ballot box are required to be delivered to the Election Commissioners. The pleader having nowhere else in the indictment pleaded the facts showing a return of the election to the election commissioners and having failed to charge that the ballots alleged to have been wrongfully counted and falsely returned were feloniously, illegally, willfully and fraudulently so counted, and the result of the election was so certified by defendant and his associate judge and clerks in their certificates and returned or delivered to the Election Commissioners, we think it falls short of averring facts essential to the charging of a fraudulent and illegal' return. It seems quite obvious that the certificates made to the Election Commissioners, if any, must form an essential part of the State’s ease. As the crime charged is that said return is a fraudulent one and *425is punishable as a felony, it must be alleged to have been feloniously made, certified and returned or delivered to the Board of Commissioners with the intent to change the result of the said election. In our opinion the indictment is insufficient in this essential particular. [State v. Keating, 202 Mo. 204, 205; U. S. v. McCabe, 58 Fed. 557.]
II. Defendant complains of thé refusal of the court to strike out the testimony of certain witnesses; for instance, in the case of the witness Charles Reichenbach, who was alleged to have cast his vote for Hugh I. McSkimming for Congress and Joseph F. Dickmann for Sheriff, but whose vote was recorded for Patrick F. Grill for Congress and Edward J. Morrissey for Sheriff. He was asked: “You are not very positive for whom you voted for Sheriff? A. No, I am not very positive whether I voted for Dickmann, but I think I did. I am not sure. Q. You are not sure? A. No. Q. Are you sure you voted for McSkimming? A. Well, I think I did. Q. Are you sure you did? A. Well, I think I am, I think I did, I do not know. There were so many names on the ticket you could hardly remember what you voted.”
The defendant insisted that the poll books showing the returns of an election made by the officers under their oath import verity and cannot be overthrown by other than positive and affirmative evidence, and requested the court to strike out this witness’s evidence, but the learned trial court ruled that it was a question for the jury. And, in its instruction to the jury, permitted them to find that this witness did vote for Dickmann and McSkimming, notwithstanding his own uncertainty in the premises, and that his vote was fraudulently counted for the other candidates. Unquestionably there are many cases in which a careful and conscientious witness will not state a fact positively, but will state that to the best of his knowledge and in his *426opinion it was true, and often this character of evidence is more convincing to a jury, or the trial court, than the bald and unequivocal statement of a fact, especially where the witness states the concomitant facts and his reasons for his belief. But it seems to us that there is much force in the contention of counsel in the peculiar circumstances of this case. Here the ballot which the witness cast was not in evidence and the defendant was on trial for a serious crime, a crime involving a corrupt administration of a public office, and the only witness by which that offense, in the nature of the case, could be established, merely stated that he thought that he voted for a certain man, but was not positive whether he did or not, was not sure that he did, and did not know because there were so many names on the ticket that he could hardly remember how he voted. We think it would be a dangerous precedent to permit the judge of an election to be sent to the penitentiary for four years upon such testimony as this, and in our opinion the circuit judge should have sustained the motion to strike out this testimony as wholly insufficient to overthrow the presumption in favor of right action on the part of the judge of the eleo tion. It must be remembered- that this is a charge of felony and the law requires it to be established beyond a reasonable doubt.
III. It is earnestly insisted that the State utterly failed to establish the charge in the indictment that either or any of the ballots alleged to have been cast for any one candidate was counted for another candidate as charged in the indictment.
Thus it is charged that William J. Robinson voted for William Wallace, but his ballot was fraudulently and feloniously counted for William S. Cowherd. The State to maintain this allegation did show there was no ballot or votes certified and returned as voted for Judge Wallace, but the only evidence that this ballot *427was counted for Cowherd is an inference which the Attorney-General draws from, the fact that Cowherd was.credited with the same number of ballots that were certified to Democratic candidates who had no opposition, therefore it is argued he must have received credit for Robinson’s ballot. This is a non sequitur. There is absolutely nothing to show that the judges counted this particular ballot for Cowherd and not for Hadley. It may be that Republican votes were counted for Cowherd and Democratic ballots for Hadley. While it may be argued that it is improbable that these 'defendants would have counted Republican ballots for the Democratic nominee or vice versa, it can be answered by the fact that if they were corrupt enough to miscount the ballots they were corrupt enough to fraudulently count any individual ballot for either of the candidates they might desire without regard to partisan bias or affiliation. The proposition after all leads us into a field of speculation, and results not in proof beyond a reasonable doubt, but in a probability, surmise or suspicion, neither of which will satisfy the demand of the law that defendant’s guilt must be established beyond a reasonable doubt. Can the charge that Robinson’s ballot was counted for Cowherd be treated’ as surplus-age? The rule on this point would seem settled. Says Bishop in his New Criminal Procedure, section 485 : “If a necessary allegation is made unnecessarily minute in description, the proof must satisfy the descriptive as well as the main part, since the one is essential to the identity of the other.” This doctrine is illustrated by State v. Samuels, 144 Mo. 68, in which the indictment charged that a certain order was uttered “to one Walter Robinson with intent him, the said Walter Robinson, then and thereby to injure and defraud.” The statute then (and now) in force provided that “it shall be sufficient in any indictment for any offense where an intent to injure, cheat or defraud shall be necessary to constitute the offense, to allege *428that the defendant did the act with snch intent, without alleging the intent of the defendant to he, to injure, cheat or defraud any particular person,” etc. [R. S. 1889, sec. 3983; R. S. 1899, sec. 2403.] It was held necessary to prove the charge as laid and that the allegation that the altering was done with intent to cheat or defraud Walter Robinson, while unnecessary, yet being alleged, became descriptive and essential to a conviction. [State v. Johnston, 6 Jones Law (N. C.) 485; John v. State, 24 Miss. 569; Com. v. Harley, 7 Met. 506; State v. Copp, 15 N. H. 212; Com. v. Luscomb, 130 Mass. 42; U. S. v. Porter, 3 Day 283.]
It is well to note that the distinction is always made between allegations which are necessary but unnecessarily particular and minute, and allegations neither essential to the charge nor descriptive or limiting that which is essential. [State v. Meyers, 99 Mo. 107; State v. Sakowski, 191 Mo. 635.]
The grand jury having charged not only that Robinson’s vote was cast for Wallace proceeded to charge specifically that it was counted for Cowherd and by so doing made it an essential element of the offense to show it was counted for Cowherd.
IV. Finally counsel for defendant assigns as reversible error misconduct of the circuit attorney in his closing address to the jury in stating to them: “If they [the accused and his counsel] have any doubts about what was in the ballots, let them open them up, let them bring them into court and place them in the hands of this jury and let it be conclusively determined.” To this statement counsel for defendant at the time objected and saved his exceptions and asked that the circuit attorney be rebuked. Thereupon the court remarked to the circuit attorney (Mr. Sager): “You know that nobody can bring those ballots here under the present condition of affairs and you ought not to hold defendant responsible for what he cannot do. Pro*429ceed with the argument of the ease under the instructions and evidence before the court.” By Mr. Sager: “It has been stated here that in this case an application for a writ of prohibition was filed.” By Mr. Bishop: “This defendant had no more to do with it and Mr. Sager knows it, than your honor.” The Court: “I have instructed Mr. Sager to proceed with the argument of this case on the evidence and instructions and not outside matters.” The defendant was thus charged before the jury in a closing argument by the State, with the duty of producing the ballots and exhibiting them to the jury and also with having obtained a prohibition against the production of the ballots, although there was no evidence that he had anything to do with obtaining the prohibition. That the circuit attorney in calling upon the defendant and his counsel to produce the ballots was guilty of a grave breach of the proprieties, there can be no doubt in our opinion. It was not the defendant’s duty to produce the ballots, neither had he any power, as counsel well knew, to produce them. Moreover, defendant had taken no action to prevent the State from endeavoring to produce them. Such a demand upon the defendant in the circumstances was most hurtful. Although counsel for defendant protested and objected to this statement, the court did not instruct the jury to disregard it, but simply told the circuit attorney that he knew nobody could bring the ballots and he ought not to hold defendant responsible for what he could not do. A defendant on trial for his liberty is entitled to the full protection of the court. The conduct of the circuit attorney called for a stern rebuke and the jury at least should have been warned to not regard the statement.
The defendant was not required to prove his innocence. It devolved upon the State to establish his guilt of the crime charged beyond a reasonable doubt. By the law of this State the defendant in a criminal cause may decline to testify in his own behalf and counsel *430for the State are forbidden by express statute to refer to or comment upon his failure to testify or to draw any unfavorable inference from his failure to testify. [B. S. 1899, sec. 2638.] In State v. Moxley, 102 Mo. l. c. 393, counsel for the State in his argument said: “They have offered not a word to explain or show how that woman came to her death. Not a neighbor was put upon that stand, if I am right, man, woman or child, kinsman or stranger, to show what he said had caused her death. ... We say that common honesty, common decency, requires at the hands of that man, when he sees his neighbors,.to tell how she came to her death!” This court said in regard to the con-duct of the prosecuting counsel: “This language of which complaint is made was simply an adroit and insinuating attempt, indirectly to accomplish what could not have been accomplished by a direct statement. The statute does not permit such evasions of its manifest purpose. Besides, the language used was not the law. ’ ’ Now, what difference in principle is there between a statement by counsel that the defendant had not produced any of his neighbors to testify as to what he had said was the cause of his wife’s death, and the statement of the circuit attorney in this case, that, if the accused “had any doubt about what was in the ballots, let him open them up, let him bring them into court and place them in the hands of the jury?” It was a demand upon the defendant to produce testimony to establish his innocence, and a demand with which counsel knew defendant could not comply. In what does it differ from a demand by the prosecuting attorney that defendant take the stand and give the jury his testimony, if he desires to be acquitted, in a case in which he has not offered himself as a witness, and if he does not, rest under the imputation that he is blocking the administration of justice? Charged as the defendant was with miscounting and with a fraudulent return of these ballots, what more hurtful reference *431could have been made to his failure to produce them, and how could the jury have been more forcibly impressed with the idea that if defendant was not guilty as charged, he would have produced the ballots? And yet, counsel knew the defendant not only could not do so but was under no legal obligation to do so. Loath as this .court is to reverse a judgment upon argument of counsel, as much as we are disposed to allow full liberty of argument, we have always held that statements of facts not in evidence are inexcusable, and if prejudicial constitute reversible error, and particularly misstatements of the law. Here the statement was not the law, and counsel was not rebuked nor the jury instructed to disregard his said statement. In our opinion the wrong done was not cured by the colloquy between the circuit court and counsel, but the poison was left in the minds of the jury and this conduct of the circuit attorney was reversible error. [Evans v. Trenton, 112 Mo. 390; State v. Weaver, 165 Mo. 1; State v. Bobbst, 131 Mo. l. c. 338, 339; State v. Mitchum, 11 Ga. l. c. 634; Tucker v. Henniker, 41 N. H. 317.]
For the errors above noted the judgment is reversed and the cause remanded for a new trial in accordance with the views herein expressed.
All concur.