The Aberdeen examiner. [volume] (Aberdeen, Miss.) 1866-current, 1884-06-05

was refused. They kept the box
several months, presented it to the
court and demanded that it be then
opened and counted, which was re-
fused, though they offered to prove
that it had been unopened and un-
tampered with.
This was wrong. Their act in
seizing and carrying it to Aberdeen
may have been uncalled for and un-
authorized, but it was nevertheless
the duty OF the court to have heard
all the evidence touching the condi-
tion of the box, and if satisfied that
its contents still remained undis>
turbed to open and countjt. Unless
court or jury were SO satisfied (the
burden being on the contestanO it
should have been rejected; but the
rights of the voters is the primary
end to be considered, and their claim
to Lave their votes counted properly
can not be defeated, if the jury shall
believe that those votes remain
wholly untampered with as was
offered here to be proved. Certainly
the whole vote of the precinct should
not be defeat ted by the illegal act of
those who carried off the box, if that
vote can now be successfully estab-
lished by other proof.
1t is to be remarked that discard
ing this vote altogether the petition
was perhaps demurrable since leav-
ing it wholly ont of view, petition er
did not allege that be received a ma
jority of all the legal votes cast, but
including it he did receive such ma
jority, if il be true, as alleged, by
him, that he received majority of
nearly three hundred at that box.
III it can now be done the vote actu-
ally cast at the election at that box
should be counted. A total inability
to do this, after all proof is admit
ted, alone can EXCUSE the court from
passing on it. For this error if there
were no other the judgment must be
reversed and this necessarily opens
up the whole case.
We can not affirm on the facts
despite these errors. both because we
can not say what harm was done by
improperly sustaining the demurrers,
and because the facts leave it doubt
full who in truth received majority
of the legal votes cast.
We pass to the special bills of ex-
ceptions filed, believing that dispo>
sition of them will sufficiently indi-
cate how the others should be
disposed of.
l. 1t was not competent to prove
that Ga,hings, one of the inspectors
at Muldon made statements either
before or after the election as to
how be intended to or how in fact
he had returned the box, both be-
cause this was hearsay and because
Gathings could not thus contradict
his own return.
2 1t was incompetent to prove
the act and declarations OF Sykes, or
of his supporters, at the election two
years before. The time was.too remote
and admitting what was then said
and done casts no light on the pres
ent election.
| 3. The bill of exceptions with
regard to the telegram sent by
Evans is overruled because from
this record it is unintelligible. H.
who alleges error must prove it.
Il The testimony of Wheeler
Watson tending strongly to show
that many men weremarked "voted
at Muldon who in fact had not voted
were not in the precinct, and were
some of them dead before the elec-
ton should have been admitted. We
can scarcely see how any thing coulC
be more directly competent both as
proving fraud at the box and the
participation therein of those con
nected with the managem ent of the
election. 1t is to be remarked tina
no provision of law authorizes the
books to be written on ut all. The
clerks should write down the names
of the voters on lists of papers and
these should be sent up with the
boxes, but as all parties here adopt.
ed the other method we let it pass
s. The testimony given by Elixir
and also by Stewart with reference
to Walton's Store box should have
been heard. We have already de-
cided that this box should have beer
opened and counted if the vote was
established, and we now declare that
every thing tending to throw direc
light on what occurred with refer
ence to it should have been heard
and there should have been a deci.
sion IS to whether the box remained
untampered with.
6. The inspectors and clerks O.
election had the right to refuse to
answer any question which tended
to subject them to criminal pros
ecution and the court was right ir
letting them Judge Of this question.
This remark applies to many cases
where the question arose as to vari-
GUS officers. Whether the contestet
himself could raise this question ant
make this objection where the wit
ness did not and was entirely willing
to answer in relation to his own re-
turns, we do not now decide as nc
authorities on the point have beer
produced before us. Only one wit
ness was shown to have been willing
to answer.
7. The testimony of Vasser as tc
the frauds attempted but not com,
mitted at the Aberdeen box was
inadmissible.
g. The attempt to prove by Leor
that Sims an inspector at Rome had
said that the inspectors intended tc
give that box to the contestee if they
had to do it by stuffing the ballot
box was incompetent, because Sims
official net could not be contradicted
by hearsay. 1t is to be remarked