(Purging the polls.) of the appellant, that the court erred in thus deducting from Holden's vote. Two of these five votes, so taken from Holden by the court, were deducted from the returns from Sanel precinct, which shows 31 votes for Holden. The ballots at that precinct were introduced in evidence (having been obtained from the clerk's office, where they are required to be kept, at least six months, by the clerk; Stat. 1863, p. 354, § 35), from which it appeared, that 31 democratic tickets were polled at that precinct; Holden's name was upon all of these tickets, except two, from which, as appears on inspection, his name had been torn off. Whether his name was torn off from these ballots, before they were cast by the electors, or afterwards, does not appear; upon that question no evidence was offered by either side, and no explanation attempted; thus, the question as to the number of votes received by Holden, at the precinct in question, had to be determined upon the evidence afforded by the certified returns on the one hand, and the ballots on the other. The court below held that the ballots were the most reliable evidence, and we are of opinion, that its conclusion was not erroneous.* Prior to 1863, there was no rule of law requiring the preservation of ballots cast at an election, for any purpose; on the contrary, the inspector of elections was required to destroy them, after the count and completion of the returns. Wood's Dig. p. 378, § 35. But in 1863, the law inspector to string the was amended, so as to require the ballots on a cord or thread, and return them with the poll-list and tally-paper to the county-clerk, to be kept by him for at least six months. Stat. 1863, p. 354, § 35. And * Here was a question of presumption against presumption; a presumption that the official returns were correct, on the one hand, and a presumption that the ballots had not been tampered with, on the other; by whatever technical reasoning, the court may sustain its position, no sane man, acquainted with "the ways that are dark, and the tricks that are vain," of professional politicians, will hesitate at coming to an opposite conclusion. Mr. Holden was, evidently, counted out. (Purging the polls.) it was further enacted, that any person might appear before the board of canvassers, on the day appointed for opening the returns, and demand a recount of the ballots, if he had any reason to believe that they had not been correctly counted by the officers of the election. The legislature could have had no other design in thus providing for the preservation of the ballots, than to make them evidence of their own contents, and a test of the correctness of the returns made up from them by the officers of the election. They are, in fact, made a part of the returns, for, it is expressly provided, that they shall be sealed up with the poll-list and tally-paper, with the certificates of the officers attached, and endorsed "election returns." Thus, they are recognised by the law, not only as a part of the election returns, and therefore, evidence of what transpired at the election, but as evidence of a higher and more satisfactory grade than the tally-paper. Intrinsically considered, it must be conceded by all, that the ballots themselves are more reliable, and therefore, better evidence than a mere summary made from them; into the latter, errors may find their way, but with the former, this cannot happen. The relation between the two is, at least, that of primary and secondary evidence. This we do not understand the learned counsel as controverting, but he insists, that the use of the ballots as evidence is limited to a test of the correctness of the tallypaper, on the day appointed for the board of canvassers to open the returns, and that, on that day, they become and thereafter remain functus officio. That such was the intent of the legislature, we cannot admit; in no event, can the board of canvassers postpone the opening of the returns, beyond the second Monday after the election. Stat. 1861, p. 529, § 38. If, at that time, it was intended that the ballots should become functus officio, and thereafter cease to be a part of the official returns of the election, why provide that they should be preserved and kept by the clerk for at least six months? Why not direct that they should (Purging the polls.) be destroyed by the board of canvassers, as was done by the inspector, under the law as it stood prior to the amendment of 1863? In the same section requiring the ballots to be preserved, we find also a provision requiring the inspector to retain and preserve, for at least six months, a poll-list and tally-paper with the certificates of the officers attached. This provision was part of the law, prior to the amendment of 1863, requiring the ballots to be preserved, and could have had no other object than to guard against the loss or fraudulent interference with those sent to the clerk's office, and to furnish additional evidence of what transpired at the election. It is, therefore, manifest, that the amendment of 1863, requiring the preservation of the ballots, had a like object, and was enacted for the purpose of further assurance. Being, as we hold, competent, it is clear, that the ballots are primary evidence, and therefore, better evidence of the number of votes cast, and for whom, than the tallylist made from them by the officers of the election. We must presume, that the officers of the election honestly performed their duty in the premises; that they did not mutilate any of the ballots, but on the contrary, strung them, in the condition in which they were found in the ballot-box, on a thread, and sent them, in that condition, to the clerk's office; the same presumption exists in relation to their custody by the clerk. In other words, in the absence of any evidence showing that the ballots in question were mutilated subsequently to their being deposited in the ballot-box, we are bound to presume, that they were in the same condition, when produced on the trial, from the proper office and by the proper officer, in which they were when deposited in the ballot-box; any subsequent alteration or mutilation, by any one entrusted by law with their custody, would be a public crime of great enormity (Wood's Dig. 385, § 105); and the commission of a crime cannot be presumed; United States v. Amedy, 11 Wheat. 408. If they were mutilated while in the clerk's (Purging the polls.) office, it was the duty of the defendant to make proof of that fact; not having been in the custody of the relator, but in that of the proper public functionary, he was not called upon to explain when and how the name of the defendant was torn off. The presumption, as we have already seen, was, that his name was torn off by the voters themselves; upon this presumption the relator could rely, and the labor of overthrowing it rested upon the defendant, who made no effort in that direction. There is no force in the argument that the ballots are liable to become mutilated, and ought, therefore, to be considered of less weight, as evidence, than the tally-list. The officers are required to string them on a cord or thread, and seal them up in a package, and deliver or cause them to be delivered to the county-clerk, whose duty it is, to safely keep them for at least six months; and the presumption is, that he has done so. It is next claimed, that the court below erred in deducting from Holden's tally, the vote of J. M. Neil, cast in Calpella precinct. The court found that Neil voted twice for Holden, and it is sufficient to say, that, in our judgment, the finding is fully sustained by the evidence; according to the poll-list, the fourth vote cast, at Calpella precinct, was cast by J. M. Neil, and the 92d and last vote. was also cast by J. M. Neil; that these two votes were cast by the same person, and not by two persons of the same name, there can be no doubt; Neil himself testified that, to the best of his recollection, he voted in the afternoon, near sundown, for the defendant, Holden; it further appears, from his own testimony and that of Mr. Cooley, one of the judges of the election, that on the evening of the election, he asked to have his name erased, claiming that he was intoxicated, and did not know, at the time, that he had voted before; there was also evidence to show, that there was no other person of that name, in that precinct, and none to the contrary. The first vote was legal, (Purging the polls.) the second was not, and the court did not err in excluding it. We are also of opinion, that the finding of the court as to the evidence of W. R. Robinson, who voted for Holden, at Calpella precinct, was correct. He left Mendocino county with his family, in April 1863, and went to Sonoma county, with the declaration, in effect, that he was going there to reside; and from that time until and on the day of election, his family continued to reside in the latter county. The most that can be said on the side of the defendant, is, that the evidence as to Robinson's residence was conflicting; such being the case, this court will not disturb the finding; the fact of residence being found against him, Robinson's vote was properly rejected. Nor did the court err in rejecting the vote of John Carroll, cast at Gualalla precinct. He came to the county on the 22d of September, and the election was held on the 21st of October following. In order to make thirty days. it would be necessary to count both of those days and the whole of each. The language of the constitution and of the statute is, that the voter must have resided in the county, thirty days next preceding the election; in our judgment, this language means, that he must have resided in the county, thirty days next preceding the election; but conceding that it means, next preceding the event of the election, such event cannot be said to have transpired until sundown on the day of the election, and a residence of thirty days, in Carroll's case, would not, therefore, have been complete, until after the polls were closed. We are satisfied that the foregoing five votes, claimed by the defendant, were properly rejected by the court, and that the finding, that he received only 535 legal votes, was correct. We now come to such of the votes, which were claimed, and counted by the court, for the relator, as are claimed, by the defendant, to have been illegal. It is first claimed, that two votes at Sanel precinct were improperly counted for the relator, by the court. It ap |