The clarion. [volume] (Jackson, Miss.) 1883-1888, 1884-06-04
SUPREME COURT DECISIONS
April. TERM. 1884,
Reported for The Clarion, bV Robert Sh0tvseh'
AttorAey-at.Lsw, jackson, Miss

eporssd for The Clarion, bv Robert shOt~sII' I
Attornsy-at.LsW, jackson, Miss
=. B. WARD) I
J. L. SYKES.
from the Circuit Court of Monroe county,
Hon. ]. w. Buchanan, Judge.
The case is sufficiently stated in the
opinion of the Court, which is published in
ull.
Orr and Sims and Reuben Davis for APP
Dellant.
Sykes and Bristow, j. NJ. Allen and 5.
J. Shields, contra.
CHALMERS, j.,
He'd
This is contest under Z $50 OF the
Code of 1880 over the question Of who re-
ceived the greatest number of legal votes |
for the office of sheriff of Monroe county |
on 9th day of November, 1888. The petit
ton contains the most minute as well as
sweeping charges of fraud at said election |
upon the part of all connected with II, |
most of which are as specifically denied,
but as to some of which demurrers only
were interposed. As the case must go back
for a new trial, we shall allude Only to
such questions as must necessarily be de-
cided. since it seems to us that the govern
ing principles underlying these inquiries
are always the same, are generally well
known. The cardinal rules controlling
such cases are these: Where the charge Is
fraud the burden is always upon the con
testant to show both fraud and injury to
himself both in the conduct and count OF
the canvass, and that in truth and in fact
he received the greatest number OF legal
votes. Until he has proved both of these,
ordinarily he can never recover. Unless
he received a majority of the legal votes
he has no right to bring his suit and he
can complain of no sort of irregularity or
fraud, save when he affirmatively shows
that he was thereby damaged; the fact that
he may hare been so is not enough; though
he may show such possibility as tending
to prove that in fast he was injured, and he
may show this by any proof admissible IN
any other inquiry as to fraud. But al
Wavs his obligation is to prove that he was
really elected by plurality or majority.
of legal votes. Unless by the whole proof
he has done so, his case must be dismissed,
or decided against him. Presuming this
much, we pass upon the several errors as
signed, or such of them as seem impor-
| tant;
l. There were four boxes at which both
| sides admitted that the canvass OF the
votes was in fact fair and the returns cor
rect, to-wit: Aberdeen, South Aberdeen,
| Athens and Daricott's. As to these the
court correctly sustained demurrer,
though the contestant claimed that as to
them, the friends Of the CT ntestee attempted
| in every possible way to perpetrate frauds,
| L II 1fa,i htF 10 U mi
lance of his friends. The attempt to COM
nit frauds, which it is admitted was frus-
trated, was irrelevant and incompetent
proof.
2. At two other boxes to-wit: Centre
Grove and Rome, it is charged that the
result reached was grossly unfair and un
lust; this result being produced by ballot
box stufing and frauds of the gravest char
acter practiced by the officers of the cleo
ton, and that to avoid them all the friend
Of contestant seeded and established else
where for themselves boxes which wer,
fairly and honestly conducted both as t
the reception and the counting OF the vote
though the result at such boxes were re
ieeted by the county commissioners, whll'
the fraudulent votes were received anC
counted As to these two boxes 1t wa
proper to have sustained the demurrer al
to the pretended outside boxes, all charge
of fraud being denied. Whether the vote
in the regular boxes should have beer
counted depends upon the proof as TO thu
actual fraud alleged to have been com
mitted there.
A. At the Walton store box difficult,
! arose after the voting was finished as t.
the manner in which the counting SHOULD
be carried on; the one side insisting tina
it should be done publicly as the law di
{ reefs and the other side contending, so
. is said, that they might count in private
Both sides sought the aid of an arme,
, force from Aberdeen. The friends of tn
! contestant obtained possession of the box
! leaving the key with the friends of the con
testee and carried it to Aberdeen and pre-
sented in time to county commissioner an
demanded that it should then be count
ed, which was refused. They kept the bo
several onths and presented it to tn
court and demanded that it be there opene
$ and counted, which was refused, thong
they offered to prove that it had been III
J, opened and untampered with. This wa
' wrong. Their act in seizing and carryin
a it to Aberdeen, may have been uncalle
T for and unauthorized, but it was neverthC
J, less the duty OF the court to have hear
+ all the evidence touching the condition {
q the box, and If satisfied that its content
i still remained undisturbed, TO open an
r count it. Unless the court or jury were $
satisfied (the burden being on the conte'
. tamil, it should have been rejected; bu
the rights of the voters is the primary en-
. tn he considered, and their claim to hav
: their votes counted properly cannot be dc
: feated, if the jury believe that those vote
I remain wholly untampered with, as wa
t offered to be proved. Certainly the Who'll
e votes of the precinct should not De az
e feated by the illegal act OF those who cai
e RED off the box if that vote can now ?
n snccessfuliv established by other proof.
d is to be remarked that discardlng TINS vol
e oltooether the petition was perhaps dc
s r,,,rrable. since leaving it wholly out @
q view netitioner did not allege that he re
y eeived a majority OF all the legal vote
:. cast Int including it he did receive sucl
= majority. if it be true as alleged by him
that he received majority of nearly 30
! At that box. If it can now be done tn
votes actually cast at the election at tina
: bov sbould be counted, A total inabilit,
J IL do this. after all proof is admitted ,alon
: can excuse the court from passing on il
e For this error. if there were no other, tn,
$ ;ndoment must be reversed. We canno
g affirm on the facts despite these errors
s Lotb became we cannot say what harm
: was done by improperly sustaining the de
5 murrers and because the facts leave 1
0 doubtful who in truth received majority
: Of the legal votes cast,
e Z. We pass to the special bills Of excep
e lions fled believing that disposition o
E them will sufficiently indicate how thu
2 others should be disposed OF,
tent to mr. n
lC4nthrine. one of the inspectors of Muldon
. nade statements either before or after tn.
election as to how he intended to, or HAD
Is fact returned the box, both be
cause this was heresay and because Guth
ring could not thus contradict his own re
I turn.
] declarations Of Sykes, or Of his supporters
7 / at the election two years before. The time
{ vas too remote, and admitting what wa
: then said and done cast no light on ths
present election.
J 8. The bill Of exceptions with regard Il
: the telegram sent By Evans IS overruIed
! because from this record il i unintelIigi
bic. He who alleges error mrst have proc
J lof il.
4. The testimony Of Wheeler Watson
tending 50 strongly to show that MANY
men were marked voted &c MuIdon who
/. ID fact had not voted, we're not il the pre.
cinct and we're, some Of them dead before
the election, should have heen admitted
We could scarcely zee how anything could
Be more directly competent both IS prov.
ing fraud at the box, and the participation
therein b those connected with the man.
aeement Of the election. It Is 10 Sc r
marked that no provision 81 lay aufhor.
i1aa the hon1n 81 - ,rvfffas. - - III ~