The defendant was indicted in the circuit court of the city of St. Louis at the October term, 1908, for making a false return in his capacity as a judge of election in the third precinct of the 16th ward of the city of St. Louis, at the general primary for the nomination of candidates for all political parties within the State of Missouri, for certain state and city offices.
The indictment covers twenty pages of closely printed matter and inasmuch as it is a rescript of the indictment in the case of State of Missouri v. McGrath, 228 Mo. 413, it is unnecessary to reproduce it here.
The defendant was duly arraigned and .entered his plea of not guilty and was tried and convicted and his punishment assessed at two years in the pen*58itentiary. After unavailing motion for a new trial lie has appealed to this court.
The evidence on the part of the state tended to show that on August 4, 1908, there was a general primary election in progress in the various precincts of the several wards of the city of St. Louis, and the defendant and his co-indictees were the qualified and acting judges and clerks of the election in the third precinct of the Sixteenth ward on that day. The evidence tended to show that several persons named in the indictment were duly registered and qualified voters and they testified that they voted for the nomination of certain candidates for office at this election, particularly for Henry F. Stapel for the office of Governor on the Democratic ticket, for which candidate the election officers returned no votes at all. Other witnesses testified that they thought they voted, or believed they voted, for certain candidates for whom no votes were returned. Ernest White stated that he had voted for Stapel, and the rest of the Republican ticket. There was no evidence that the votes cast for Stapel were counted in favor of and as having been cast for ■ William S. Cowherd for candidate for nomination for Governor.
I. This indictment in its charging part as to the false return of the result of the electron is in the exact form of the indictment condemned in the case of State v. McGrath, 228 Mo. 413. It was there ruled that the indictment in that case was fatally defective because it failed to charge that the return in said precinct by the defendant and his co-judges and clerks had been feloniously made, certified and returned or delivered to the Board of Election Commissioners, with the intent to change the result of said election. The offense with which the defendant was attempted to be charged is a felony under our law, and it is the settled law of this state that iú all indictments for *59felonies the criminal act must he alleged to have been feloniously done. [State v. Keating, 202 Mo. 204; U. S. v. McCabe, 58 Fed. 557.]
Inasmuch as the indictment will not support the judgment, it is deemed unnecessary to discuss the various propositions advanced by counsel as to the sufficiency of the evidence and instructions.
It is conceded by the Attorney-General that there was an error in the second paragraph of the instructions for the state in that it contained the name of Ernest White as one of the voters, the improper -counting of whose ballot might be made the basis of a verdict of guilty, as White’s ballot could not have been counted for Stapel as a candidate for the Democratic nomination for Governor, as he voted the whole Republican ticket otherwise. [Laws 1907, pp. 266, 267, sec. 18.]
The reference of the prosecuting attorney to the fact that the defendant did not take the stand to testify in this case, was of course entirely improper and has been sufficiently condemned in former opinions of this court.
The judgment of the circuit court is reversed and the cause remanded for the error noted.
Burgess and Kennish, JJ., concur.