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(Evidence in contested election cases.)

There was no error in the ruling of the judge, that voters might be asked the question, for whom they voted. The only grounds of the objection appear to have been, that under our system of elections, which allows, indeed requires, the secret ballot (1 Rev. Stat. 426, § 17), it is not proper to compel a voter to disclose for whom he voted; and that where the object is, to show that he voted illegally, and was, therefore, possibly, guilty of a misdemeanor, he should not be required to give evidence tending to establish his guilt. It is a sufficient answer to these objections, that they are available only to the witness, and not to the party; in regard to the last ground, there is the further answer (the witness having admitted that he voted), that an answer to the question, for whom he voted, could have no bearing upon his guilt or innocence. The objections to the order in which the proof of the facts should be introduced, involved the exercise of discretion merely, on the part of the judge, which is not, in such cases, reviewable on appeal.

When a voter refuses to disclose, or fails to remember, for whom he voted, I think it is competent to resort to circumstantial evidence, to raise a presumption in regard to that fact; such is the established rule, in election cases before legislative committees, which assume to be governed by the legal rules of evidence. Cushing Lex Parl. Am. $ 199, 210. And within that rule, it was proper, in connection with the other circumstances stated by the witness, Loftis, to ask him for whom he intended to vote; not, however, on the ground that his intention, as an independent fact, could be material, but on the ground that it was a circumstance tending to raise a presumption for whom he did vote. The refusal to strike out the testimony of Conrad Hoch involved the same principle.

The poll-lists of New Bremen and Croghan were rightfully admitted; the only fact in regard to them which was requisite to be established to authorize their admission as evidence, appears to have been undisputed, viz:

(Evidence in contested election cases.)

that they were the poll-lists of these towns or districts, kept at the election in question. The provisions of the statute relative to such lists must be regarded, mainly, as directory only (14 Barb. 290-1; 8 N. Y. 89); and any failure to comply with such provisions, if lists were actually kept, would not justify their rejection, when offered in evidence. There does not appear, however, to have been any material departure from the directions of the statute, in keeping the lists; neither a heading to show what the paper was, nor the signatures of the inspectors or clerks, was required. 1 Rev. Stat. 432, § 34; 436, § 57. The anterior filing of one of the lists was of no moment, so long as its genuineness was unquestioned. What the lists proved or failed to prove, could not be considered in deciding the question of their admissibility.

There was sufficient evidence offered by the defendant, to justify the refusal of the ruling asked for by the plaintiff's counsel, "that no proof had been given to go to the jury, sufficient to overcome the five majority conceded to the relator," of the votes given. The judge could not be understood as ruling, that the proof was sufficient to overcome the majority, but only that it was sufficient to be submitted to the jury for their consideration as to its effect.

The refusal to allow the examination of the witness, McRea, in reply to the defendant's proof, under the circumstances disclosed in the case, presented only an exercise of discretion on the part of the judge, which ought not to be reviewed here. If there had been no arrangement made on the subject, at the close of the plaintiff's opening testimony, the evidence would have been admissible in reply, as a matter of right, and its rejection would have furnished good ground for a new trial; but the express reservation, with the approbation of the court, of the right to call (at the close of the defendant's testimony, as I understand the arrangement) certain witnesses, who were named, "for the purpose of showing that illegal

(Evidence in contested election cases.)

votes had been cast at said election for the defendant,' might properly be regarded as restricting the plaintiff to those witnesses only, in reply, on that subject, although the facts offered to be proved would have been proper in reply, and might have been proved by any witnesses, if no arrangement had been made. It is apparent, that the course attempted to be pursued by the plaintiff might, if allowed, have operated as a surprise upon the defendant. The judge, in whose presence the arrangement was made, was much better qualified to decide, whether it was likely to do so, than this court can be. The arrangement had the effect to change, what otherwise would have been a question of right, into one of discretion.

The first two exceptions to the charge present only the question, already considered, whether the qualifications of the voters could be inquired into on the trial, and therefore, require no further notice. The charge in relation to the change of residence of Bellinger, was too clearly correct to require comment.* 4 Cow. 516, note 2; Westlake on Private International Law 36. No doubt can arise in regard to the correctness of the charge, that where it was proved that a voter was alien-born, and there was prima facie evidence that he had not become a citizen by naturalization or otherwise, the vote given by him must be rejected, unless proof of his citizenship were produced.

The refusal to charge, in the case of Rivinot, that if the jury found that he was an alien born, then, in the absence of any proof of naturalization, his vote must be disallowed; and the charge that, in such case, the legal presumption was, that he had been naturalized, presents a question of greater difficulty. As a general rule, affirmative facts are not to be presumed, but must be proved by

* The charge in relation to Bellinger's vote was: that if he got married and went to live with his wife in another county, with intent to make that county his residence, that fact constituted a change of residence.

(Evidence in contested election cases.)

the party asserting them; there are, however, some exceptions to this rule, and the question presented by this part of the charge is, whether the case falls within any of those exceptions. I am of opinion that it does, and that the charge was correct. Greenleaf, in his work on Evidence, says, "where the negative allegation involves a charge of criminal neglect of duty, whether official or otherwise, or fraud, or the wrongful violation of actual lawful possession of property, the party making the allegation must prove it; for, in these cases, the presumption of law, which is always in favor of innocence and quiet possession, is in favor of the party charged." 1 Greenl. Evid. § 80. The request to charge in this case involved, on the part of Rivinot, something more than a criminal neglect of duty or fraud; if he voted without naturalization, the act constituted a misdemeanor. 1 Rev. Stat. 449, § 13. The presumption against positive crime, cannot be less strong, than the presumption against fraud or criminal neglect of duty; the negative, therefore, which was involved in the plaintiff's request, could not be presumed, but required to be proved by the party alleging it. Williams v. East India Co., 3 East 192, 199; Rex v. Hawkins, 10 East 216; Powell v. Milbank, 2 W. Bl. 851.

I can perceive no difference between the present case and one where the right to vote depends on residence. In the case of Commonwealth v. Bradford, 9 Met. 268, the defendant was indicted and convicted for voting at the general election in Boston, on the 11th of November 1844, when, as was alleged, he was not a qualified voter, not having resided in Boston the six months next preceding that election. It was proved, that the defendant resided at Kingston, until about the 1st of April 1844, when he went to Boston and entered into partnership there, with the express understanding that he should make that place his residence; that he continued in Boston until the election, with occasional returns to Kingston,

(Evidence in contested election cases.)

where his family remained until a short time before the election, when they removed to Boston; there was conflicting evidence as to his declarations and intentions respecting his domicil. The judge, at the trial, charged the jury that, as "the defendant's domicil was at Kingston, until he acquired one in the city of Boston, the burden of proof was upon him, to satisfy the jury, affirmatively, and beyond a reasonable doubt, that on the 11th day of May 1844, he had changed his domicil from Kingston to Boston, and then dwelt and had his home in that city." Chief Justice Shaw, in delivering the opinion of the supreme court upon this point, said, "the court are of opinion, that this direction was wrong, and that the burden of proof was still on the government, to prove that the defendant had no right to vote, and that he had not been an inhabitant of the city six months; this, it is true, is a negative proposition, difficult to prove, but necessary in order to charge a party with a criminal offence." On that ground, the conviction was set aside.

In such cases, the presumption in favor of innocence overcomes the presumption, which would otherwise arise, of the non-existence of the fact not proved. To rebut such counter and stronger presumption, some positive evidence to establish the negative, is necessary. Calder v. Rutherford, 3 Brod. & Bing. 302; Phillips' Evid. 196. The negative in regard to naturalization would ordinarily be much more difficult to prove, than it would be in regard to residence, but the principle of both causes is the same. Rex v. Rogers, 2 Campb. 654; Rex v. Twyning, 2 B. & Ald. 386; Hicks v. Martin, 9 Mart. (La.) 47; 1 Cow. & Hill's Notes 423, n. 325. Full and conclusive proof, where a party has the burden of proving a negative, is not required; but even vague proof, or such as renders the existence of the negative probable, is, in some cases, sufficient to change the burden to the other party. Calder v. Rutherford, 3 Brod. & Bing. 302. The last request of the

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