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pose of the local option law.” But this court contended that the bet was not made in has held that this enabling statute is not Kentucky, but was made in Tennessee; the necessary to enable the courts to go behind case being somewhat similar in its facts to any device, trick, or subterfuge to sustain a the case at bar. But in overruling defendconviction of a person who was really guilty. ant's contention the court said:

It was so held in Commonwealth v. Adair, "It is very earnestly insisted for appellant 121 Ky. 689, 89 S. W. 1130, 28 Ky. Law Rep. that the bet was not made in the state of Ken657, where this court said:

tucky, or Graves county. The evidence con

duces to show that the bet was in fact made in “Indeed, section 2570, supra, was not needed Graves county, and that Brand placed his monto enable the courts to go behind subterfuges ey in the hands of Ben Hunt, and Matthews and evasions in such matters. The law is gen-placed his in the hands of Frank Gillman, and erally elastic enough to defeat tricks, without they put the money in the hands of one Mcenabling statutes for the purpose. Where an Guire to send to Jim Si. Cavender to hold. act is made up of a series of events, and is Cavender, it seems, did business in Tennessee,

, , criminal in its result, all the occurrences leading and lived in Graves county, Ky. The evidence up to the consequence need not be done, even also tends to show that this arrangement was within the jurisdiction where it is sought to be made for the express purpose of avoiding the punished. It is enough if the result of that Kentucky statute in regard to betting.” negotiation constitutes an offense."

In our opinion, these decisions are not only So it will be seen that section 2570 of the sound in their interpretation of the law, but Statutes really gives no additional power to are conclusive of the case at bar. If the the courts in this respect; they may go behind statute can be evaded by so simple a device tricks, subterfuges, and devices in the enforce- as that here attempted, it means nothing; ment of liquor laws and betting laws alike. and betting can easily be conducted and In the Adair Case, supra, Adair conducted a without any danger of prosecution in all of brewery outside the corporate limits of May- the 48 border counties of Kentucky by merely field. The city was "dry” territory; the going across the line into Ohio, Indiana, Illicounty outside the city was "wet." The nois, Missouri, Tennessee, or West Virginia, prosecuting witness ordered from Adair, by and there putting up the money pursuant telephone, a case of beer to be delivered in to an agreement which had already been the city. The driver, who was authorized to made in Kentucky. The courts will not counaccept the price of the beer, refused to accept tenance such an evasion of the law. it in the city, but went with the purchaser Judgment reversed for a new trial. over the line of the city limits, where the payment was made. This court held that

(180 Ky. 835) Adair was guilty of selling liquor in the city

SCHOONMAKER V. DUNLAP. of Mayfield.

In Lemore v. Commonwealth, 127 Ky. 480, (Court of Appeals of Kentucky. June 4, 1918.) 105 S. W. 930, 32 Ky. Law Rep. 387, the de- ELECTIONS Om 232 - CONTEST FRAUD fendant was operating a gasoline boat on

THROWING OUT PRESINCT, the Mississippi river. The prosecuting wit- izing the adjudging, in an election contest, of

Under Ky. St. $ 1596a, subsec. 12, authorness, to whom the liquor was sold, boarded no election, if it appears that there has been Lemore's boat on the Kentucky side, and such fraud in the conduct of the election that after it had gone over to the Missouri side neither candidate can be adjudged to have of the river he informed Lemore that he de- was such fraud may be thrown out, and the

been fairly elected, a precinct in which there sired to buy a quart of whisky, and the sale election awarded on the other precincts; and was made. The boat returned to the Ken- this, though the candidate so defeated did not tucky side and landed a short distance from particúpate in the fraud. where it started. In that case, as in this,

Appeal from Circuit Court, Fayette not a word was spoken in Kentucky, where County. the sale was charged to have been made; but

Election contest by Wood G. Dunlap the circuit court found Lemore guilty, and against H. M. Schoonmaker. Judgment for the judgment of conviction was affirmed by plaintiff, and defendant appeals. Affirmed. this court. In that opinion the court said: James G. Denny, R. J. Colbert, and Miller

"But when he took the proposed purchaser out & Miller, all of Lexington, for appellant. beyond the thread of the stream to sell him Maury Kemper, George C. Morgan, Joe S. whisky, and then brought him back to the Kentucky shore, the whole transaction will be look- Botts, and George W. Vaughn, all of Lexinged at, and the sale will be regarded as made ton, for appellee. not at the point at which the whisky was delivered and the money paid, but on the Ken- THOMAS, J. This suit is a contest over tucky shore, where it was begun, and where it the election for the office of commissioner was consummated."

for the city of Lexington brought by plainSee, also, Merritt v. Commonwealth, 122 tiff, the appellee, against the defendant, the Ky. 669, 92 S. W. 611, 29 Ky. Law Rep. 184. appellant. The litigants were , rival candi

.

, Brand v. Commonwealth, 110 Ky. 980, 63 dates for the office at the regular November, S. W. 31, 23 Ky. Law Rep. 416, was a prose 1917, election, and according to the returns cution under the gambling statute in the as certified by the election officers for the Graves circuit court, wherein the defendant 39 precincts in the city the plaintiff receiv

en For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ed 3,123 votes and the defendant 3,218 votes,, which plaintiff received at the 38 precincts giving to the latter on the face of the re-was valid and legal, and the same is admitturns a majority of 95 votes.

ted with reference to the 35 votes which he Within the required time after the can received at the Deweese precinct. So that vassing of the returns this contest was filed the only question upon the merits of the in which it is charged that in the 38 pre- case is to what extent are the allegations of cincts within the city, not including Deweese the petition sustained with reference to the Street No. 2 precinct, plaintiff received a votes which defendant received in the conmajority of 37 of all of the votes cast, and tested precinct, and whether

was that in the Deweese precinct referred to shown to have been such fraud in the conthe election officers who held the election duct of the registration and the election conspired among themselves and with oth- there as to authorize the court under the ers unknown to plaintiff to elect the defend-provisions of subdivision 12 of section 1596a ant and to defeat the plaintiff, and that such of the Kentucky Statutes to throw out the conspiracy was formed before the registra- entire vote cast at the contested precinct. tion day in October, 1917, and in pursuance An insistence stoutly urged before us for thereof "by illegal methods and practices a reversal is that the court erred in overruland flagrant violations of the laws of this ing the motion to make the petition more commonwealth" the said election officers specific, and in support of this contention permitted to register on the registration we are referred to the cases of Edwards v. day and to vote at the regular election a Logan, 69 S. W. 800, 24 Ky. Law Rep. 678, great number of persons whose names were Weller v. Muenninghoff, 155 Ky. 77, 159 S. purely fictitious, and others who did not W. 632; Butler v. Roberson, 158 Ky. 101, 164

; , reside in the precinct, and others who were s. W. 340, and cases referred to in those not present on the day of the election, some opinions. of whom were in the asylum and others Since rendering the opinion in the case of in the penitentiary; that they permitted Butler v. Roberson, the last case cited by numbers of voters to vote an open ballot counsel, this court again upheld the rule for contrary to the provisions of the statute per- which he contends in the two cases of Franmitting votes to be cast in that manner; cis v. Sturgill, 163 Ky. 650, 174 S. W. 753, and that numerous ballots were fraudulently Thompson v. Stone, 164 Ky. 18, 174 S. W. tampered with, and showed that they had 763. In each of the cases relied upon it is been marked by others than the voter; that substantially held that in an election conpersons friendly to the defendant and op- test upon the ground that there were illegal posed to the plaintiff were permitted to be and fraudulent votes cast for the contestee present at the voting precinct while the elec- sufficient to reduce his total vote below that tion was going on and who had no connec- of the contestant it is necessary that the petion therewith; that the officers of the elec- tition of the latter allege the names of the tion on that day, as well as on the day of persons so illegally or fraudulently voting, registration, had whisky in the booth, and and when it fails to do so, and there is a became intoxicated and engaged in other motion for it to be made more specific, it fraudulent practices, all of which evidenced should be sustained, and that in such case "such fraud, intimidation, bribery, or vio- the contestant can neither rely upon nor inlence in the conduct of the election that vestigate any votes other than those which neither contestant nor contestee can be ad- he might name in his pleading. The purpose judged to have been fairly elected.” It was of this is that the pleading should be made further alleged in substance that the plain- so specific and direct as to give the other tiff received at said precinct 35 legal votes, party information of the ground on which and that the defendant did not receive a the contest is based, so that he may be presufficient number of legal votes in that pre-pared to make defense. The petition in this cinct to overcome plaintiff's majority at the case enumerated the names of S6 voters in other 38 precincts, plus the 35 votes which the Deweese precinct as having illegally for he obtained at the Deweese precinct.

one cause or another cast their votes in the A demurrer to the petition was overruled, election complained of. The names of those followed by a motion to make it more spe- who are fictitious, and who did not reside cific, which was also overruled, after which in the district, and who were illegally regan answer consisting of a denial only was istered, and who were absent on the day of filed, and upon trial the court sustained the the election, were set out, but there was a allegations of the petition, and adjudged statement made that there were other illegal that the plaintiff was duly elected to the of- votes cast by persons whose names were unfice, and to reverse that judgment the de- known to the plaintiff, as well as the number fendant prosecutes this appeal.

of such unknown votes, and if the determinaIt will be noticed that only one precincttion of the case depended upon the illegal is involved in this case, and the testimony, votes cast by those who are unnamed in the although voluminous, has been directed ex- petition, it is manifest that the judgment clusively to what transpired there on the would have to be reversed because of the day of the registration and the day of the error in failing to sustain the motion to re

specific by giving the names of the persons, filled out ahead of the unvoted ballots;. that who cast the alleged illegal votes. But in he asked what this meant, and was told it had this case the judgment is not rested upon the lines along the edge of the ballot book as

been done by mistake; that he noticed dark fact that plaintiff received a majority of the though ballots were out, and the end of the legal votes cast, including any polled at the book opposite the end where the book was Deweese precinct, for the court concluded un

bound seemed much thinner than the end where der the testimony that the election attempt through the top'half of the ballot book; that

the stubs were; that these dark lines ran ed to be held in that precinct was so fraudu- he saw Emmitt Martin take supplementary ballent that it was impossible to determine the lot stubs from his pockets and put them in number of legal votes cast therein, or for numerical order on the stub file; that in doing

this he seemed to use both side pockets of his whom they were cast, and that it was au- coat, getting the stub of the large ballot [evithorized under subsection 12 of section 1596a dently the county ballot] from one pocket, and of the Kentucky Statutes to throw out and the small ballot [the city ballot] from another disregard that precinct altogether, and to ad-pocket; that he saw nothing in his hand when

he put it in his pocket, but saw the stubs in judge the election to the candidate receiving his hand when he withdrew his hand from his the highest number of legal votes cast in the pocket; that he saw that he arranged them on other precincts of the city, and it was upon in the afternoon heard Martin ask Delph. if

the stub in numerical order, and about 2:30 this theory that the case was chiefly prac- they (the stubs, evidently] were all in, to which ticed and tried and upon which it was de- Martin made answer that they were, and that cided in the lower court.

this conversation occurred just outside of the

booth. As stated, a large volume of testimony

"He further says that on the way to the was taken and read upon the trial, all of clerk's office, after the polls had closed, when which has received our close investigation, they were making return of the vote, Delph but it would make this opinion too long to told the witness, Vanaman, in response to a undertake to set it out in detail. It is suf- question from him (Vanaman), that they had

put 73 ballots in the box. This is the subficient to say that defendant's counsel con- stance of the testimony of this witness bearcedes that at least as many as 63 illegal votes ing upon the conduct of the officers. were cast at the precinct in contest on the “It appears from the testimony, and from day of the election, and that a large number that 109 were signed by Delph as clerk, when

the ballots themselves, which are in evidence, of names were wrongfully and illegally plac- he was judge, and 63 by Martin, and that 12 ed upon the registration book; and, further, were not signed at all, which accounts for the that every illegal vote cast in that precinct 184 ballots returned. Among these ballots there was voted for the defendant. They implied- fore, have been voted as open ballots; all of

are 16 that were not folded, and must, therely concede that all of the votes which defend these were voted for the contestee and none for ant received at that precinct except 77 were the contestant. Of the 12 ballots that were not illegal because they attempted to establish indorsed 4 were cast for the contestant, -and 11

for the contestee. It further appears from the by those 77 voters that they each voted for testimony, and from the ballots themselves, that the defendant. The purpose in that was that two different colored inks were used in stampit took 77 votes for the defendant to over-ing the ballots. A careful examination of the come the majority which he had over the ballots thus stamped would lead to the conclu

sion that the county clerk had inadvertently plaintiff, including the 35 he received in the placed a purple colored pad in the booth. This contested precinct. The court sustained ex- of itself would in no way influence the vote ceptions to that proof, and of that ruling where the entire ballot is marked in the same no complaint is made on this appeal, for the color, but an examination of the ballots reveal

ed the rather startling fact that some of the all-sufficient reason that the exceptions were ballots are marked in different colored ink. As sustained upon the ground that to permit a for instance: The ballot marked 151 is voted legal voter to thus testify would violate the for Bradley, Land, McCorkle, and Schoonmaker, law in regard to the secrecy of the ballot ored ink from the one placed after the name of

with a stencil mark that bears a different colsystem. The trial court rendered an opinion Bradley. In the one instance the stencil is a in the case, which is clear and convincing, different shape, a different size, and makes a and evinces a thorough knowledge of the rec- after the name of Riley, while the difference in

much heavier mark from the one that appears ord. After stating the grounds of contest the color of the ink is unmistakable. Ballot and the points presented by the testimony, 82 is even more suggestive. It is voted for the court, in arriving at his conclusions of Johnston, McCorkle, and Darnaby with one pad, fact as established by the testimony, said: time voted for Riley, Schoonmaker, and Land

, "Some features of the testimony may be con- in a different shaped stencil and a different colsidered. It is clear that whisky was drunk by ored ink. Johnston and Riley being candidates some of the officers, to such an extent that one, for police judge and the voter being entitled to at least, was incapacitated. Six empty half-| vote for but one, the fact thąt each is voted pint bottles were found in the booth at the for in different colored ink pads and different close of the polls. It may fairly be concluded shaped stencils leads to the inevitable concluthat the polls were opened before 6 o'clock. sion that more than one person participated in Vanaman, one of the officers, did not arrive un- the marking of that ballot. Ballot 158 is voted til nearly 6:30, at which time 14 ballots had for George Land in one colored ink, and for already been cast. The substance of Vanaman's Riley, Bradley, and Schoonmaker in a different testimony is that he saw Delph signing his color. Ballot 76 is voted for Riley, Schoonname on the back of the ballots as clerk, when maker, Freckman, and McCorkle in one color Delph was judge and Martin clerk; that he and for Land in another. Ballot 65 is voted picked up a ballot to see how far ahead Delph for Riley, Schoonmaker, and Land in one color, had signed them, and that the ballots slipped and for Bradley in another. Ballot 149 is votas he did so, exposing a stub that had been ed for Riley, Bradley, Darnaby, in one color, and for Schoonmaker and Land in another. were voted without being indorsed by any. Ballot 180 is voted for Schoonmaker, Bradley, body as clerk of the election, and the duties Freckman, and Land in one color, and for of that office, when exercised at all, were perRiley in another. Ballot 113 is voted for Riley, Bradley, Dunlap, and McCorkle in one color, formed by any one who saw proper to do so. and Land in another. Ballot 115 is voted for Many of the cases, supra, especially that of Schoonmaker, Dunlap, and McCorkle in one Banks v. Sergent, permit the votes of a precolor, and for Riley and Land in another.

' Ballot 117 is voted for McCorkle, Bradley, cinct to be thrown out and election awarded Darnaby, and Freckman in one color, and for to the one receiving a legal majority of the Riley in another. It will be observed that there votes cast in all the other precincts, and we are ten of these ballots. There are several ballots that are marked entirely in purple ink, but are clearly of the opinion that the court was in practically every instance it will be noted amply justified in taking that course in this that the purple stencil is wholly unlike the case, and in awarding the election to the other stencils, in shape, size, and character of plaintiff. impression.

We feel it due to the appellant to say, as "It is further claimed by the contestant that 78 fictitious names were placed upon the regis- was done by the trial court in his opinion, tration books by Delph at the registration, and that the record is entirely void of any evithat these were voted at the election; and that dence casting any suspicion upon him. This 25 or more persons were permitted to vote who, fact, however, although one to his everlasting for one reason or another, had no right to vote in that precinct."

credit, will not authorize us to award to him

the certificate of election, since the votes cast Further along the court enumerates the in that precinct were so tainted with fraud names of 59 voters who were illegally add- as to require their elimination, and without ed to the registration book of that precinct, them the defendant has no sort of claim to and some twenty-odd ballots were voted, the office. with the names of the candidates for commis- Wherefore the judgment is affirmed. sioner marked with one character of stencil and kind of ink, and the names of candidates for other offices were voted for with different

(180 Ky, 790) characters of stencil and ink, showing that at

HAYS v. HAYS. least a suspicion existed that the conspiracy (Court of Appeals of Kentucky. May 31, 1918.) charged did exist, and that the ballots so voted had been stamped for the office of com- 1. JUDGMENT 589(1)-RES ADJUDICATA. missioner by some one other than the voter, court orders a sale of real estate and division

Where, in suit for settlement of estate, the Numerous other facts are testified to and of the proceeds, a party thereto who does not found by the court which show indisputably appeal from such order is precluded from bringthat the election attempted to be held in the ing action in partition for a division of the

land. Deweese precinct was a mere farce, and that

2. PARTITION Om 63(3) AGREEMENT TO DIit was nothing but a fraudulent and illegal

VIDE-PROOF. performance instituted and conducted by the In action for partition of land, evidence election officers and others for the purpose of held to support finding that distributee who carrying out wholly fraudulent, vicious, and purchased the land did not agree to give plain

tiff a share in the land instead of a share in corrupt practices.

If subsection 12 of section 1596a of the Statutes, as applied in the cases of School v.

Appeal from Circuit Court, Lawrence

County.
Bell, 125 Ky. 750, 102 S. W. 248, 31 Ky. Law
Rep. 335, Harrison v. Stroud, 129 Ky. 193,

Action in partition by Laura Hays against 110 S. W. 828, 33 Ky. Law Rep. 653, 16 Ann. Major Hays. Judgment for defendant, and Cas. 1050, 1050, Banks V. Sergent, 104 Ky.

Afirmed.

plaintiff appeals. 843, 48 S. W. 149, 20 Ky. Law Rep. 1024, Orr M. S. Burns, of Louisa, for appellant. W. v. Kevil, 124 Ky. 720, 100 S. W. 314, 30 Ky. D. O'Neal, T. S. Thompson, W. T. Cain, and Law Rep. 761, 946, Ford v. Hopkins, 141 Cain & Thompson, all of Louisa, for appellee. Ky. 181, 132 S. W. 542, Butler v. Roberson, 158 Ky. 101, 164 S. W. 340, and Johnson v. SAMPSON, J. This action was instituted Little, 176 Ky. 505, 196 S. W. 156, Ann. Cas. by Laura Hays, widow, against Major Hays, 1918A, 70, is to be given any effect at all her uncle, in the Lawrence circuit court for a there can be no doubt but that this case is division of a certain tract of land supposed to one demanding its application, for in addition contain about 80 to 100 acres. The petition to the registration of illegal names and the alleges that the plaintiff, Laura Hays, is casting of 86 such votes, other fraudulent the owner of a one-tenth undivided interest and corrupt acts are clearly shown to have in the said tract of land, and that Major occurred on the day of the election. Ballots Hays owns nine-tenths thereof. It does not were taken out of the book ahead of their se- allege that the tract is susceptible of advanrial number. Different characters of stencils tageous division. By answer Major Hays and ink were used by the voter on the same denies that Laura Hays is the owner of a ballots. Strangers having no connection with one-tenth undivided interest, or any interest the conduct of the election were openly per- whatever, in the tract of land, and asserts mitted to go into the polls. At least 12 ballots Jownership of the entire tract in himself.

the money.

*

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He avers that he is one of ten children of interest laid off to her in kind, while Major John Hays, deceased, who left a considerable Hays says that no such understanding was fortune to his children and grandchildren, of reached, but that after the sale was over whom Laura Hays is one of the grandchil- Laura Hays suggested to him she would dren. John Hays left a will disposing of prefer having a one-tenth interest in the his property. He owned this particular tract land laid off to her instead of a one-tenth of of land and resided upon it. It is alleged the proceeds of the sale. He says he did not that upon this tract is a large nine-room consent to this, but offered to pay her the brick house. By the will this tract, the home $605, which she declined to accept. Several place, was given to the widow during her months after the sale and after all the heirs, life, and then to the children in equal por- except Laura Hays, had executed their deed tion. After the death of the widow a suit to Major Hays for the tract of land now in was instituted to settle the estate of John controversy, Laura Hays instituted this acHays, deceased, to which action both Laura tion in the Lawrence circuit court for a parHays and Major Hays and all the children tition of the land between her and Major of John Hays, deceased, were parties, plain-Hays, asking that she have her one-tenth intiff and defendant. In that action, which terest apportioned to her. No proof was takwas prosecuted to judgment, it was ordered en except the affidavit of Laura Hays for and adjudged:

the plaintiff, and the affidavits of Green

Hays and Major Hays for the defendant. In "That the executors of the estate of John her affidavit Laura Hays states that she is Hays, deceased, distribute among the heirs of informed and believes that the tract of land John Hays, deceased, the sum of $33,400, to contains 150 acres, and that it is worth more be distributed in accordance with the will of than $6,050, and that "she would vastly prethe said John Hays as probated in the county court as follows: To Laura Hays one thou-fer this court to appoint commissioners to sand dollars. * Major

Hays * * lay off to her the one-tenth interest she has thirty-six hundred dollars, that said executors in the place in land,” but she nowhere says shall make said distribution on or before the the land is susceptible of advantageous divi

of the . . * It is ordered and adjudged that the sion. In support of the allegations of the real estate of the said John Hays, deceased, answer that the land could not be divided situated on George's creek, in Lawrence county, without materially impairing its value, the Kentucky, and being the same in which Elizabeth Hays (widow) by the will of John Hays affidavit of Green Hays and Major Hays was given a life estate, shall be sold and the states that "if a tract of land was taken off proceeds of said real estate distributed as fol- the old home place it would greatly impair lows: one-tenth each to Laura Hays, Green its value”; that the tract only contains Hays, W. T. Hays, Lucy Justice, L. C. Hays, Nancy Preston, Major Hays, Sarah Hays and about 75 to 90 acres, and that $6,050 was "a John Hays, and one-tenth to be equally divided good big price for it, and more than it was between Nola Hays, Irma Hays, and Ethel worth on the day that Major Hays bought it. Hays. The above heirs of John Hays, deceased, Affiant says that he was present and heard shall have until the first day of June, 1916, to make private sale of said real estate to one or the plaintiff, Laura Hays, say [at the sale], more of said heirs, or others by mutual agree- 'Let it be sold,' and when it was knocked off ment, but should they fail to agree upon said to Major Hays, she [Laura] seemed contentprivate sale within said time then the mastered and did not object to the sale and concommissioner of this said court, W. M. Savage, shall sell the real estate, on credit of six months, sented and agreed to same.' The plaintiff, taking a bond for same with good personal Laura Hays, did not and does not own any security,” etc.

land adjoining the home place which is now Before the 1st day of June, 1916, the heirs in controversy, but does own a tract of about gathered upon the premises at the home 100 acres, which she received from the estate place for the purpose of publicly selling the of John Hays, deceased, and upon which she tract of land now in controversy, and the now resides. property was offered for sale, and both Ma- [1, 2] She did not appeal from the judgjor Hays and Laura Hays bid for the prop-ment of the Lawrence circuit court, directerty, and Major Hays, offering $6,050, the ing a sale of the home place in the suit for highest price bid, was declared the purchas-settlement of the estate of John Hays, nor er, whereupon he caused a deed to be pre- did she, so far as this record discloses, make pared and signed by each of the heirs, ex- any objection or save any exception to that cept Laura Hays, who refused to sign it, judgment or order. In that suit for settleclaiming that she desired her one-tenth part ment of the estate of John Hays, and in of the land laid off to her instead of one which judgment was entered directing a sale tenth of the proceeds of the land, which un- of the land now in controversy, this plainder the bid of $6,050 would amount to $605; tiff, Laura Hays, should have sought a divior if she could not have her portion of the sion of the property and an assignment of land in kind, then she desired a greater sum her share in kind, if she desired that relief, than $605 for her one-tenth interest. She but, failing to do so; the judgment directing asserts that at the time of the sale she and a sale precludes her from now having a diviMajor Hays had an agreement and undersion in kind. The court in directing the sale standing that she was to have her one-tenth instead of a division necessarily found the

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