Delaware state journal. [volume] (Wilmington, Del.) 1870-1883, 1881-02-17

I rurBenson SAID he was not deserter;
don't remember whether he said this when
he first attempted TO vote, or at the second
attempt; don't know that Mr.. Tyre
expressed any doubt about his right to
refuse the vote, or the justness of his
refusal.
Samuel O. Peirca sworn-Was assistant
inspector at this polling place; Furgersop'a
vote was refused because he was a
deserter my opinion was that he had a
righi to vote as long as he was not proved
to have no such right; was not willing to
refuse the vote on mere rumor that
Furgerson was de5erter; it did not take
them long to decide to refuse the vote.
Court then adjourned until 10 o'clock
Thursday morning.
Court met Thursday at 10 o'clock a. IN.
Martin Leonard was arraiRned for SELL
ing liquor without licence. Upon his
pleading guilty in one case and paying
costs in all three, n0Ne zroSeq,i was
entered as to two.
Charles B. Lore, Esq, appeared for a
continuance of the case of State VS.
Guthrie, on the ground of absence OF
material witnesses George Gray, ESQ
cPPboch khibt bcCuud6 tuc hbulC WlluthS
whom the defendant wanted, and were
absent were also summoned by the State,
hence both sides stood on an equal
footing
The application for continuance was
granted, but Guthrie's bail was increased
from 80 900 to So 800
The case against Philip p Tyre was re :
sumed. Frank Stout, Republican. who
stood outside the window, was called to
the stand. His testimony was about the
same IA that of other witnesses, given in
yesterday aft, moons report.
Thomas Mabaify was put ON the stand
to prove that Tyre Was of good standing
aud chaencter. His Testimony was Obj 4cted
to by Mr.. Gray, who said ho admitted Mr.
Tyres good character and had in no way
Question: d it. This being the case tho
Court said the evidence was not
admissible.
The case was then argued by the Attor
ney General before tine jury. He said he
mad tired not to, and did not think he had
iu any way brought politics into this case.
he had nothing but good feelings towards
MIR. Tyre. The only question here was H.
to bis right to refuse Furg raon's vote.
No one is supposed to know
how he voted, and such a consid-
Grafton must not have weight here
Our statute provides two qualifications for
n voter. He must be = oitizsp of the
SFate and resident th' rein. If we are to
get the rule to govern us elsewhere than
in our own statute then it is upon the
defense to show in those rules and prove
to you that they override cur statute. Mr..
fy-e has put himself in very uncomfort-
able position. He took il upon himself to
reverse all the rules of evidence and say
to Furgerson, you shall not vote until you
prove you are not deserter. Tha remark.
able and unhesrd of demand was made
that Fnrgerson prove a negative. Gentle
man ii this rule had been applied to you
on that day your vote would have been re
fused Ii any one had said to Mr. Tyre,
when you went to vote, that man is felon,
acting on the principle ha did in this case,
he would have said bring the record and
prove You are not, You might have said
[ have never been tried aud there is no
re cord, nevertheless ON Mr.. Tyres rule, az
to the admisahiiity of evidence, you could
not have voted II this rule had bet n
applied universally ON ihBt day the polling
list could have baen reduced from 267 to
just such number as Mr.. Tyre should
have chosen to take.
Benjamin Nields, Ed, then addressed
the Court on the pUlht of law involved,
VIZ: Whether a deserter Can vote at a
general election, when the United States
Statutes provide that such q person is not
a citizen, not capable of exercising any of
the rights of citizen. II
this man is allowed TO vote,
then any Chinese. japanese Or
any other foreigner, not having been
naturalzed by the United States, can vote
by the authority of ibe State for the mein-
btrs of Congress. Delaware or any other
state might Just as we'll say that traitor
to the Republic, Benedict Arnold, could
vote and have say in who shall repre-
eent the people in the Federal Assembly
MIR. NIelds' point was this That man
wno ia not citizen of The United States,
cannot be a oitizsn OF a state.
Cases we're cited by the defendants
couussi ta show that 10 order to make an
inspector liable. who refused to receive e
vote, it must be proved by the Srate that
t was refused iraudulen,ly and ma
icionsiy. The vote innst have been
refused from improper motives, and con-
trary to the inspectors own opinion.
Mr.. Nields then addressed the Jury on
the facts Of the case. The principal point
he iusde, and asked them to consider WAS,
the MIR. Tyre had, in refusing The vote,
uct4d conscientiously aud according to his
oes' Judgment, and that they could not
tUd against him unless the State should
prove he had acted maliciously and in vio-
laton If his own better Knowledge.
A Juror y l. Harris, Interrupted the
counsel with the question whether il wade
any d fl f-rence in this as to It's beiDg q
Congr ssohsl or State election.
Bo;h counsel agreed that il did not.
Al this point court adjourp,d until >
o'clock.
Court reassemblcd Thursday offer. onn
at 3 O'Clock, and Ber jamiu N.tlds Eq
procee ded with his argument to the jury
in the Tyre case which had heen inter-
rupted by the noon adjournment. He
closed at 3 25 o'clock. aud George Gray,
ESD opened his closing argument TO the
Court He commented ou the wide range
taken by Mr.. Tyres counsel in the points
he had taken before the Court aud jury.
fhe whole question. said the Attorney
General, is wheth. Furgerton had I. right
10 vote He ADMITTED the great import
.,ncr of the question. There WAS nothing
in tho lass of this State to prevent ihia
mal's voting. rnen comes the question
does the United States statute circu nscrh,
thus right given 10y the State. He thought
there Was Dothing antegouistie between
them.
MIR. Gray then combstted the position
TAX by his opponent, viz: That Que
Who Ia not a citizen of the United State Il
cannot be r citizen of state He SID
the issue here raised Wps al ew one aud
III yer 10 his knowledge been passed upon
by The courts Iu support of the theory
that there Is Is dual citizenship, one of the
Udited States, the other of the State, the
Attorney General cited what are known as
the "Slaushter House cases, where Judge
Miller delivered the great opinion Of his
judicial life.
Quite discussion here interviewed be-
tween Judge Houston and the Attorney
General as to what constituted citizenship.
Upon His Honor being asked what inter
probation he would put upon the clause,
"a white male citizen" in cur constitu-
ton, he said he had never, since he COM
menced to study law, been positive as to
what meaning to put on that clause.
The counsels argument to the Court
occupied one hour and his address to the
Jury about 10 minutes
This closed the case so far as the counsel
are concerned, and the jury considering
the importance of the case, were dis
charged until this morning at 10 O'Clock, in
nrder tn piya the Oourt tima I'm link INF n