Sacramento daily record-union., 1881-11-14
rHE aurLER CASE.
Efforts to Set Aside the Finding OF the
jury

The casa of Ellen M. Butler 9s. o. ." :
P,+Ier for divorce and division Of property,
came up before Judge benson in the superior
Court on Saturday afternoon. When the
c,sa Was esIled. counsel fer the plaintiff Of
fered evidence TO show the property belong
;rp to the defendant, which the Court was
asked 10 pass upon for division. Counsel for
defense here interposed exceptions to the
findings of the jury, and desired the same set
aside upon the grounds, first, that one of the
Jurors was disqualified from serving upon g
| jury by reason of not being q taxpayer Sec
ond that there had been misconduct upon the
part of the jury and third, that the verdict
was not that of the jury, as the requisite
number, which is three-fourths, did not vote
| for the findings as entered of record in the
Court.
In support of the first, the statement of
the County Auditor was presented, certifying
that the name of George H. Carlton Tor
George Carltcn). one of the jurymen, does
not appear upon the county assessment roll.
In support of the other proposition, an affi-
daTit signed by H. Winters, c. Schurr, +.
! Gehring and NJ. Dwyer, four of the jurors,
was submitted, in which they say that they
each "voted in favor of the defendant in the
jury-room on both issues, and so intended to
retUrn Inelf verdict.
In addition to this, verbal testimony was
given, to the effect that on the forenoon fol-
lowing the verdict, Mr. Butler and Gus Wei
man met in the Court house hall, and con-
cluded to see if the ballots used were still in
| the iury-room, and if SO, to reeanvass the
count. They visited the juryroom, attended
| By L. Il. Berkey and n. A. Kidder; found
| in waste-basket sixteen ballots marked
Yes" eight marked "No." and three or
| four blanks. These were put into an en-
yelope, sealed up then and there, the sign
manual of three of those present written
across it for the purpose of Identification, and
then it was placed in the Auditors safe and
there kept until brought into Court. The
envelope was presented in evidence, when it
| was opened and its contents found as above
stated.
To sustain the findings of the jury, the
counsel for Mrs. Butler subpenaed all the
jurors in the case and placed them upon the
stand The foreman, l.. S. Kilgore, testified
that B. Trap and G.. II. Carlton acted as
tally clerks, and 2. Newman and II. Winters
as tellers that he appointed Mr.. Winters as
one of the tellers, because he believed him to
be friendly with the defendant; that MIR.
Newman opened and called off the ballots
that several OF the jurors watched and saw
every ballot as ne did so, and that there were
nine written "yes" in answer the question
of whether defendant was guilty of adultery,
and three "noes." In answer to the question
of whether he was guilty of cruelty. the vote
was the same.
OF the other jurors P. Newman, L. Hurts,
G.. Fl. Gullion, S. Morris, G. II. Carlton and
j. Baumley testified to the same effect-that
they witnessed the counting saw each ballot
as it was opened and read, and were positive
that the correct count upon each question
was nine "yeas" and three "noes." II,
Winters testified that he voted no, in favor
of Mr.. Butler, upon both questions that he
was one of the tellers, and was very particu-
lar to see that the vote was counted cor
rectly; that when Mr.. Newman took up
the ballots from the jurors he first
turned the hat = which was used for
ballot-box-oyer upon the table, and
the ballots were counted carefully to see
if there were just twelve, and there were
that number and no more, each time. That
Mr.. Newman then took up each ballot
separately and announced it and then handed
it to him Winters, who carefully examined
each one, and he was positive that they were
read off correctly and that the vote stood
upon each nine "yes" and three mo" as
reported to the Court by verdict Immediately
afterwards.
The jurors testified also, that when they
had voted upon the first question, and were
about to vote upon the second, it was pro-
posed by one of the number that they could
use the former ballots, but MIR. Winters OBJ
jected, and his objection being concurred in,
be took up the ballots which had been once
used, crumpled them together in his hand
and threw them in the waste basket.
Mr.. Carlton testified that when the
proposition was made to use the former
ballots he had taken one of them up to use.
and when the objection WAS made to using
than IA fOre III inf two nr nd
threw it upon the floor. He was questioned
closely about this by counsel, but stated that
he was positive and remembered doing SO dis
tinctly. Counsel for plaintiff called attention
of the Court to the fact that this would leave
but twenty three whole ballots, whereas coun.
sci for defendants have twenty-four.
During the examination of the several ju-
rors Mr.. Jones asked them to pick out their
ballots, as they testified that each wrote their
own, except MIR. Dwyer. Some of them
identified both of their ballots, others found
but one cast by them, and were
positive that the other was not among
the number. Mr.. Winters, in look
ing for his ballots, found one, and then
remarked that the other was not there. This
he said he was positive about as he voted
''No" both times, and the last time he
spelled the "No," Know" as a joke.
There was no such ballot in the twenty-four
therefore could not be mistaken when he said
that the second ballot he cast was not among
the eight negative votes, which it was claimed
are the ones cast by the jury ct that time
Mr.. Dwyer testified that he could neither
read nor write, and that Mr. Gullion by re-
quest wrote both his ballots that while he
could not read, he could swear positively
that there were but two letters upon
each ballot. In this connection Mr..
(Nullinn fa5tIf; aA hot fba hall
requested for Mr.. Dwyer, and before seeing
the ballots then in the hands of the Court,
said he could pick out the ones he wrote for
him; that he wrote large g n, and wrote
the so" disconnected upon each. The bal.
| lots were examined in the presence of the
| Court and the two found written as described.
Mr.. Jones, of counsel for plaintiff, asked
each juror as they testified as to the kind of
pencil used by them in writing the ballots,
and the answer cf each one was that they
used common lead pencils, and several of
them showed the ones they had upon the
| occasion. One of the ballots upon which is
written "No," was written with an indelible
| pencil of violet-colored lead, and in q bold,
| flowing handwriting. This ballot was
shown to each juror as they were testifying,
and each one testified that it was not written
| by him; that they had no such pencil and
each one of the four who voted "no," said
Gucy Dau never seen DtllOG USiOF6s
Evidence was given tending to showthat Mr..
| Schurr voted yes" instead of "no," and
that he stated, after the verdict was rem
! dered, that he did so. Messrs. Trap, Morris
and Carlton testified that they kept
careful tally lists of the ballots
as they were called off at the time the jury
agreed upon its verdict; that they left their
tally-sheets upon the desk on the jury-room
table that after they heard of the effort to
impeach the verdict, they went to the jury
room, in company with Deputy Sheriff Orn,
and found the three tally-sheets still upon
the table. These were presented in Court at
this point by counsel for the plaintiff, aud
identified by the jurors who kept them.
They esch show nine votes "yes upon each
question, and three ''noes," in accordance
with the verdict rendered at the time to the
Court.
This concluded the testimony, and the case
was continued till the 21st for argument.
BAND OF HoPE.-A meeting of members
of the temperance organizations in this city
was held yesterday afternoon at Fireman's
Hall. A new Band Of Hope was organized,
and the following officers were elected: S.
Kstzsnstein, President Chas. Kemp, Vice
President; Mrs. A. A. Catlin. Superintend-
ent A lice Niynp Assistant Superintendent |: