BURGESS, J.
— The defendant was convicted in the circuit court of the city of St. Louis, and his punishment fixed at two years imprisonment in the penitentiary under an indictment charging him with having feloniously, falsely and fraudulently personated Wilhelm Mueller, an elector, and feloniously and fraudulently attempting to vote in and on the name of Wilhelm Mueller, an elector, at the election held on April 2, 1901, in said city, for certain municipal officers of said city.
Wilhelm Mueller was born in Germany and came to this country when he was eleven years of age. He registered from No. 1618 South Broadway, in the Eourth precinct of the Seventh ward of the city of St. Louis. Defendant, on April 2, 1901, did not live at 1618 South Broadway, St. Louis.
On April 2, 1901, defendant went to the polling place, No. 1614 South Broadway, in the Eourth precinct of the [583]*583Seventh ward of the city of St. Louis, Missouri, told the' judges and clerks of election that his name was William Mueller, and that he resided at No. 1618 South Broadway, and received from one of the judges an official ballot, and went into one of the booths in the polling place, prepared his ballot, and-handed it to one of the judges of election. His right- to vote was questioned by one of the clerks of election, and he was requested to write his name, and he wrote it “William Miller” and he said he was born in St. Louis.
The court gave the following instructions:
“By the indictment in this case, which was filed May 23, 1901, the defendant, John Hardelein, is charged with falsely personating the name of an elector, and fraudulently attempting to vote in the name of such elector, at an election held in the city of St. Louis, Missouri, for certain municipal officers, on the second day of April 1901. He pleads not guilty, and upon the question of his guilt or innocence the court instructs you as follows:
“1. By the statutes of this State any person who shall falsely personate an elector and attempt or offer to vote in and upon the name of such elector is guilty of an offense against the election laws of this State. Therefore, if you find and believe from the evidence in this case that at a general election, held in the city of St. Louis, Missouri, on April 2, 1901, for certain municipal officers of said city, one Wilhelm Mueller was then and there a duly registered voter and elector at the Fourth precinct of the Seventh ward of said city, and that then and there, on said second day of April, 1901, at the city of St. Louis, Missouri, the defendant, John Hardelien, did appear at the polling precinct aforesaid, before the duly selected and qualified judges and clerks of election within and for said election precinct and ward, and knowing himself not to be the said Wilhelm Mueller, did then and there falsely and fraudulently impersonate the said Wilhelm Mueller, and; did then and there falsely and fraudulently attempt to vote in [584]*584and upon the name of said Wilhehn Mueller, then you will find the defendant guilty as charged in the indictment, and assess his punishment a.t imprisonment in the penitentiary for any number of years, not less than two or for life:
“2. If the jury believe, from the evidence, that the name Wilhelm Mueller-means in English William Miller; or, if you believe, from the evidence, that an attentive ear would find difficulty in distinguishing them when pronounced, then, in law, said names are considered the same.”
The court gave four other instructions: on the presumption of innocence, credibility of witnesses, the indictment as no evidence, and the purpose of the argument of counsel.
The jury found the defendant guilty, and assessed his punishment at'two- years in the penitentiary. In due time he filed his motions in arrest and for a new trial, which, being overruled, he appealed to this court.
The jndictment was drawn under section 7261, Revised Statutes - 1899, which reads as follows: “Any person who shall falsely personate an elector, or other person, and vote, or attempt or offer to yote in or upon the name of such,elector or other person; or shall vote, or attempt to vote, in or upon the name of any other person, living or dead, . shall, upon conviction, be guilty of a felony, and punished for every such offense by imprisonment in the penitentiary not less than two years.”
Section 2, article 8, of the Constitution of this State, and section 7232, Revised Statutes 1899, provide that every male citizen of the United States, and every male person of foreign birth who may have declared his intention to become a citizen of the United States according to law not less than one year nor more than five'years before he offers to vote, who is over the age of twenty-one years, . . . shall be entitled to vote.”
It is said that the State failed to prove- that Wilhelm Mueller was an elector, in that he was of foreign birth, and [585]*585it was not shown that he had ever declared his intention to become a citizen of the United States according to law, not less than one year nor more than five years before the election at which defendant was charged with having personated one Wilhelm Miller, an elector, and in attempting to vote in and upon his name.
The evidence showed that Miller was a native of Germany, that he was twenty-five years of age at the time of the trial on June 7, 1901, and that he came to this county eleven years before that time.
The State introduced in evidence the register of voters for the ward in which Miller resided at the time, which shows, as we understand it, that William Miller resided at 1618 South Broadway, that he was a native of Germany, had resided in the city of St. Louis for ten years, that he was over twenty-one years of age and that he took out his naturalization papers in the circuit court of said city on August 31, 1890.
Aside from what appeared upon the registration book, Miller testified that he liyed at 1618 South Broadway, at the time of his registration, and until about two weeks after the election. It was further shown by the State beyond any doubt that defendant fraudulently obtained a ballot, and in furtherance of a fraudulent purpose attempted to vote in and upon the registration number of and as Wilhelm Mueller, or Miller, as pronounced in German.
The evidence, we think, made out a prima facie case against defendant, or what under our practice means the same thing, that is, a state of facts which entitled the State to have the case go to the jury. Where a defendant pleads not guilty and admits nothing against himself, as in the case at bar, the burden of proof is on the State to first make out a case against him which would entitle it to go to the jury, but this does not change the burden of proof, which remains with the State throughout the trial, and whether or not the evidence is suffi[586]*586eient to overeóme the presumption of innocence of defendant, and to establish his guilt beyond a reasonable doubt, when all of the evidence on both sides including the presumptions, is considered, is for the consideration of the jury. [1 Bishop’s New Criminal Procedure (4 Ed.), sec. 1050; State v. Darrah, 152 Mo. 522.]
In Commonwealth v. Kimball, 24 Pickering 366, it is' said: “Making out a prima facie case does not necessarily or usually change the burden of proof.
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BURGESS, J.
— The defendant was convicted in the circuit court of the city of St. Louis, and his punishment fixed at two years imprisonment in the penitentiary under an indictment charging him with having feloniously, falsely and fraudulently personated Wilhelm Mueller, an elector, and feloniously and fraudulently attempting to vote in and on the name of Wilhelm Mueller, an elector, at the election held on April 2, 1901, in said city, for certain municipal officers of said city.
Wilhelm Mueller was born in Germany and came to this country when he was eleven years of age. He registered from No. 1618 South Broadway, in the Eourth precinct of the Seventh ward of the city of St. Louis. Defendant, on April 2, 1901, did not live at 1618 South Broadway, St. Louis.
On April 2, 1901, defendant went to the polling place, No. 1614 South Broadway, in the Eourth precinct of the [583]*583Seventh ward of the city of St. Louis, Missouri, told the' judges and clerks of election that his name was William Mueller, and that he resided at No. 1618 South Broadway, and received from one of the judges an official ballot, and went into one of the booths in the polling place, prepared his ballot, and-handed it to one of the judges of election. His right- to vote was questioned by one of the clerks of election, and he was requested to write his name, and he wrote it “William Miller” and he said he was born in St. Louis.
The court gave the following instructions:
“By the indictment in this case, which was filed May 23, 1901, the defendant, John Hardelein, is charged with falsely personating the name of an elector, and fraudulently attempting to vote in the name of such elector, at an election held in the city of St. Louis, Missouri, for certain municipal officers, on the second day of April 1901. He pleads not guilty, and upon the question of his guilt or innocence the court instructs you as follows:
“1. By the statutes of this State any person who shall falsely personate an elector and attempt or offer to vote in and upon the name of such elector is guilty of an offense against the election laws of this State. Therefore, if you find and believe from the evidence in this case that at a general election, held in the city of St. Louis, Missouri, on April 2, 1901, for certain municipal officers of said city, one Wilhelm Mueller was then and there a duly registered voter and elector at the Fourth precinct of the Seventh ward of said city, and that then and there, on said second day of April, 1901, at the city of St. Louis, Missouri, the defendant, John Hardelien, did appear at the polling precinct aforesaid, before the duly selected and qualified judges and clerks of election within and for said election precinct and ward, and knowing himself not to be the said Wilhelm Mueller, did then and there falsely and fraudulently impersonate the said Wilhelm Mueller, and; did then and there falsely and fraudulently attempt to vote in [584]*584and upon the name of said Wilhehn Mueller, then you will find the defendant guilty as charged in the indictment, and assess his punishment a.t imprisonment in the penitentiary for any number of years, not less than two or for life:
“2. If the jury believe, from the evidence, that the name Wilhelm Mueller-means in English William Miller; or, if you believe, from the evidence, that an attentive ear would find difficulty in distinguishing them when pronounced, then, in law, said names are considered the same.”
The court gave four other instructions: on the presumption of innocence, credibility of witnesses, the indictment as no evidence, and the purpose of the argument of counsel.
The jury found the defendant guilty, and assessed his punishment at'two- years in the penitentiary. In due time he filed his motions in arrest and for a new trial, which, being overruled, he appealed to this court.
The jndictment was drawn under section 7261, Revised Statutes - 1899, which reads as follows: “Any person who shall falsely personate an elector, or other person, and vote, or attempt or offer to yote in or upon the name of such,elector or other person; or shall vote, or attempt to vote, in or upon the name of any other person, living or dead, . shall, upon conviction, be guilty of a felony, and punished for every such offense by imprisonment in the penitentiary not less than two years.”
Section 2, article 8, of the Constitution of this State, and section 7232, Revised Statutes 1899, provide that every male citizen of the United States, and every male person of foreign birth who may have declared his intention to become a citizen of the United States according to law not less than one year nor more than five'years before he offers to vote, who is over the age of twenty-one years, . . . shall be entitled to vote.”
It is said that the State failed to prove- that Wilhelm Mueller was an elector, in that he was of foreign birth, and [585]*585it was not shown that he had ever declared his intention to become a citizen of the United States according to law, not less than one year nor more than five years before the election at which defendant was charged with having personated one Wilhelm Miller, an elector, and in attempting to vote in and upon his name.
The evidence showed that Miller was a native of Germany, that he was twenty-five years of age at the time of the trial on June 7, 1901, and that he came to this county eleven years before that time.
The State introduced in evidence the register of voters for the ward in which Miller resided at the time, which shows, as we understand it, that William Miller resided at 1618 South Broadway, that he was a native of Germany, had resided in the city of St. Louis for ten years, that he was over twenty-one years of age and that he took out his naturalization papers in the circuit court of said city on August 31, 1890.
Aside from what appeared upon the registration book, Miller testified that he liyed at 1618 South Broadway, at the time of his registration, and until about two weeks after the election. It was further shown by the State beyond any doubt that defendant fraudulently obtained a ballot, and in furtherance of a fraudulent purpose attempted to vote in and upon the registration number of and as Wilhelm Mueller, or Miller, as pronounced in German.
The evidence, we think, made out a prima facie case against defendant, or what under our practice means the same thing, that is, a state of facts which entitled the State to have the case go to the jury. Where a defendant pleads not guilty and admits nothing against himself, as in the case at bar, the burden of proof is on the State to first make out a case against him which would entitle it to go to the jury, but this does not change the burden of proof, which remains with the State throughout the trial, and whether or not the evidence is suffi[586]*586eient to overeóme the presumption of innocence of defendant, and to establish his guilt beyond a reasonable doubt, when all of the evidence on both sides including the presumptions, is considered, is for the consideration of the jury. [1 Bishop’s New Criminal Procedure (4 Ed.), sec. 1050; State v. Darrah, 152 Mo. 522.]
In Commonwealth v. Kimball, 24 Pickering 366, it is' said: “Making out a prima facie case does not necessarily or usually change the burden of proof. A prima facie case is that amount of evidence which would be sufficient to counterbalance the general presumption of innocence, and warrant a conviction, if not encountered and controlled by evidence tending to contradict it, and render it improbable, or to prove other facts inconsistent with it. But the establishment of a prima facie case' does not take away from a defendant the presumption of innocence, though it may, in the opinion of a .jury, be such as to rebut and control it; but that presumption remains, in aid of any other proofs offered by the defendant to rebut the prosecutor’s prima facie case. The court are of opinion that the jury should have been instructed, that the burden of proof was upon the Commonwealth, to prove the guilt of the defendant; that he was to be presumed innocent, unless the whole evidence in the case satisfied them that he was guilty.”
The State’s first instruction is faulty in that it submitted to the jury a question of law, that is, whether or not Wilhelm Mueller was a duly registered “elector” within the meaning of the Constitution and the statute heretofore adverted to. While it was the duty of the court to advise the jury what was meant by that term, it failed to do so; and in so failing, committed error. [Laws 1901, p. 140.]
A final contention is that section 1261, Revised Statutes 1899, is special legislation in violation of sections 53 and 54 of article 9 of the State Constitution, because it inflicts a different and greater punishment for1 impersonating an [587]*587elector in the city of St. Louis than is inflicted in any other part of the State. Whether this position is well taken or not, is, we think, unnecessary to pass upon, for even if well taken, the conviction could well be sustained under section 7178, Revised Statutes 1899, by which the punishment for a similar offense committed anywhere in the State is fixed at not less than two nor more than five years’ imprisonment in the penitentiary, and there can be no question with respect to its constitutionality.
The judgment is reversed and the cause remanded.
All concur.