(Evidence in contested election cases.)

plaintiff's counsel was, therefore, properly overruled. The judgment of the supreme court should be affirmed.

Judgment affirmed.

EMOTT, ROSEKRANS and BALCOM, JJ., concurred.

DENIO, C. J., and WRIGHT and MARTIN, JJ., dissented.

The principal question decided in People v. Pease, is as well settled as any question can be, both on English and American authorities. See Carpenter v. Ely, ante 258; Reed v. Cosden, 1 Cong. Elect. Cas. 353; Adams v. Wilson, Ibid. 373. So also, it would appear to be well established in England, that the declarations of a voter may be given in evidence to prove his want of the legal qualifications. Tomlins on Evidence in Election Cases 153, 173; 2 Dougl. Elect. Cas. 308-9; 3 Ibid. 12-13; 1 Peckwell 304; 2 Ibid. 395. And this was decided to be the law, in Wisconsin, in the case of State v. Olin, 23 Wis. 310, 319. But see the Case of Dresden, Cush. Elect. Cas. 201.

That the presumption of innocence, where one who is alien-born has voted at an election, will prevail over the counter-presumption that he is still an alien, is also sustained by authority. New Jersey Case, 2 Cong. Elect. Cas. 19. The presumption of innocence is a favorite with the law, and though it may be rebutted by presumptive evidence, even in capital cases, it obtains both in criminal and civil proceedings; thus, in Rex v. Twyning, 2 B. & Ald. 386, it was held, that where a woman married within a year from the time when a preceding husband had been heard of, there was a presumption that the first was dead when she married the second, and that it was incumbent on the other party to give evidence to the contrary. "This is a case of conflicting presumptions," said Mr. Justice Bayley, "and the question is, which is to prevail? the law presumes the continuance of life, but it also presumes against the commission of crime; and that, even in civil cases, until the contrary be proved. The case of Williams v. East India Co., 3 East 192, decided that the onus probandi lay, in such cases, on the other side; for though, in ordinary cases, it would have been the duty of the defendants to have proved the notice, the court held, that inasmuch as the combustible matter would have been a crime in the party

(Evidence in contested election cases.)

delivering it, it became necessary for the plaintiff to prove that no such notice had been given. And in Rex v. Hawkins, 10 East 211, where the objection was, that the defendant had not taken the sacrament within the year, and it was said in answer, non constat, that the other party had not equally omitted to do so, the court held, that the presumption was that he had conformed to the law." Breiden v. S. & R. 430, was a case of the same stamp.

Paff, 12

As in all other cases, the evidence in a contested election must be relevant to the issue; this principle was carried to a great extent in the case of Reed v. Kneass, 1 Phila. 162-8, where the question was, whether or not the election officers had made a fraudulent return against the contestant by giving him but 94 votes, when it was alleged that, in point of fact, he received 150; it was proposed to be shown that, prior to the election, the witness visited the contestant on several occasions; that it was agreed, that the witness should be one of the clerks of the election, the contestant being desirous that some person favorable to himself should be among the officers; that he so acted, and that he received a sum of $50 to favor the claims of Mr. Reed, though not for the purpose of corrupting him as an election officer; the court, however, rejected the evidence as irrelevant. It would seem, that the fact that one of the clerks of the election was the paid agent of the contestant, ought to have had some bearing on that case. But every point was ruled against the respondent, by the majority of the court, from the commencement of the hearing. No case has exercised such a mischievous effect on elections in Pennsylvania as that of Reed v. Kneass.

It is competent for the contestant to prove that a man noted on the poll-list, as voting, did not vote; that certain persons voted more than once, though the names in which they voted were not given; that one who voted was not a qualified elector; that certain persons whose names were unknown voted twice; that certain persons were assessed in a previous year, but were not found when the assessment was made prior to the election contested; that search had been made for persons alleged to have voted illegally, and the result thereof; but what was said at a particular house is not evidence; after search made for the list of taxables in the box, and failure to find it, a witness may be asked, whether he saw the list at the poll, and whether the officers wrote anything in the book, on election day; it is also competent to show whether voters were challenged, were sworn and what they said. Mann v.

(Evidence in contested election cases.)

Cassidy, 1 Brewst. 12. It is also competent to show that an election officer stated, the morning after the election, that there was a discrepancy between the ballots and the return; also, that a person who voted was non compos mentis, without a finding in lunacy; it may be shown for what ticket an unqualified voter asked at the poll; that no scratched tickets were voted, or that a ticket voted by one not qualified had a mark on it by which it could be identified; but it is not competent to show the description of ticket a man voted, by the type or its size; nor what the distributor of tickets said, at the poll, as to the tickets he was handing out; nor what ticket the person was distributing, from whom an unqualified voter obtained his ballot; nor whether all the tickets of a certain party had on them the name of a particular person; nor can an unqualified voter be asked, what ticket he voted? the question should be, for whom did you vote for a certain office? so, a witness called simply to prove the hour in which he voted, cannot be cross-examined as to his qualifications. Thompson v. Ewing, 1 Brewst. 68-9. The fact of the residence of an elector, can be proved by others than the voter himself; but the testimony of persons who searched for and did not find certain voters in the election division, is entitled to but little weight. Weaver v. Given, 1 Brewst. 140.

REED v. KNEASS.

In the Court of Quarter Sessions of Philadelphia.

MARCH SESSIONS 1851.

(UNREPORTED.)

[Evidence-rebutting testimony.]

Rebutting testimony is a thing dependent upon the sound discretion of the court, provided always, that it be relevant to the case.

It does not follow, that because testimony may be admissible in chief, it is not to be received by way of rebuttal.

In an election case, evidence is essentially rebutting, if it tend to explain away circumstances which have been advanced on behalf of the respondent, in order to destroy or affect the testimony which has been adduced by the contestant to sustain the allegations of his complaint.

This was a proceeding to contest the election of Horn R. Kneass, who had been returned as duly elected to the office of district-attorney for the city and county of Philadelphia, at the general election held in October 1850.

It was alleged in the complaint, that the election officers of the Second ward, Moyamensing, had added to the list of voters a large number of names of persons who had not voted at that election. The aggregate of votes returned was 1223. The contestant, to sustain this allegation, proved that a Mr. Landon, who was No. 878 on the polllist, voted about fifteen minutes before the time of closing the polls, and that, at that time, but few persons were voting and there was no press at the polls. To contradict this inference, the respondent proved by the assessor, that John Robbins, whose name was No. 957 on the poll-list, was duly assessed as a resident in Shippen street above Tenth street in that ward. The contestant, in rebuttal, called as a witness one Jeremiah Robbins, who stated that he resided in Tenth street the first door above Shippen street; that no person by the name of John Robbins

(Evidence-rebutting testimony.)

resided there; and that there was no other J. Robbins in the ward but himself. The counsel then proposed to ask Mr. Robbins whether he voted at the last election, which was objected to on the other side.

The question of the admissibility of the testimony was argued by Hirst and J. M. Read, for the respondent; and by St. Geo. T. Campbell for the contestant.

KING, P. J., delivered the opinion of the court. I have given this question much deliberation and reflection, and the conclusions I have arrived at, are the deliberate result thereof. In a court of justice, there are two sorts of testimony, direct and positive, and circumstantial and pre-. sumptive. Direct and positive testimony, as well as cir cumstantial and presumptive, given by a party plaintiff or complainant, may, of course, be rebutted by his opponent; positive testimony he may rebut by positive testimony, or by circumstances outweighing the effect of that positive testimony; and so with presumptive or indirect testimony. Now, in this case, the contestants, in order to sustain their position, allege that, after a certain hour, on the night of the election, a large number of votes were added to the list, of individuals who never, according to the circumstances proved by them, could have bonâ fide given their votes, as set forth in the election papers. To establish this fact, among other things, they brought Mr. Landon, whose name is on the poll-list, No. 878, to prove that he voted between 10 and 20 minutes before ten o'clock; that, at that time, there was no press at the polls; that very few persons were voting; and that he left the polls, and proceeded to his house, in the vicinity, and that on his arrival there, the clock struck ten; from this testimony, the contestants seek to infer, that the return of the officers must be fraudulent, since it is a moral impossibility, if Mr. Landon voted No. 878, at 15 minutes before ten o'clock, for 345 more votes, which are necessary to constitute the