The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1888-12-21
UP In FIRE AND SMOKE.
DEFENDANTS IN THE ELECTION
FRAUD CASES DISCHARGED.
Judge Hammond Learnedly Sustains
the Demurrer Raised by Counsel for
the Defense, and Thus Brings the
Trial to a Sudden Termination.

Az Vne Onlleu otite5 Nircult OOuTJ yes
terday the case OF the United States vs..
Clark Nj. Brewer, Ben Featherstone and
James Badinelli came to asudden termina-
ton, and the defendants were discharged.
The defendants, late election officers at
the Fourth Ward polls, stood charged by
indictment for violating the statute laws,
aud neglect Of duty in not permitting one
J. L. Bigelow TO witness q count OF the
ballots in that ward.
Upon the demurrer or point raised by
defendants counsel, namely: that Judge
Bigelow, who lived and voted in the
Eighteenth Civil District, was not an
elector of tho Fourteenth District or
Fourth Ward, and consequently had no
legal right to be present during the count
OF the votes, Judge T.. s. Hammond deliv-
cred tho following elaborate
OPINION.
As was we'll remarked by one Of the
learned counsel for the defendants, our
election laws constitute, us a whole, a
scheme for the regulation OF the proceed
ing intended TO secure 10 the people a
free, fair and honest election, to facilitate
the right TO vote and preserve the purity
OF the ballot box, and il must in consIru-
ing any part of them DO examined as 4
whole. As arranged in the sections OF the
code OF 1858, they will be found to be
broken up somewhat and disarranged
from their original contexts, and when re-
stored their meaning Is often made more
clear. They are found in chapter 2 OF
Title O Of the Code pertaining 20 "0ficers
and Elections" the original basis being
chapter . OF the acls OF 1896 ut the first
session OF the General Assembly OF the
State, from which the section in contro-
versy here was taken. [Code 1858, secs.
sl2-SS7. Ill. T. & 5. Ed. secs. Sl2-SS7. Id.
NJ. q V. Ed. secs. l,003-l ,096.
There cannot be the least doubt upon
reading them that the intention is TO pro-
vide for a perfectly open and public
counting OF the vote OF each precinct ut
the place in that precinct where the
election was held. The County Court is
required 10 designate those places for
each precinct ut least six months before
the election, and to enter those designa-
tons of record. (Act 1927, ch. %, sec. /;
Code 1858, secs. s37-S37a, I. & S. Ed,
NJ. & V. Ed, secs. l,0il-l,0i3) Then
come the provisions Tor counting the vote
and making the returns with which we
have 10 deal here-among them the
sections regulating the proceedings at
the polls" and after that those sections
regulating the proceedings after the polls
are closed which classification, titles
and subtitles are part OF the original
code itself. From the whole scheme IL Is
apparent that the counting must take
place ut the polling place, and can BIO had
nowhere else without violating the duties
imposed by these laws, and Tin the pres
cnce OF such OF the electors rs may choose
10 attend" Code 1858, art vii, SECS
Si6-S63a; art. viii, secs. S6i-S7l; art. tx,
secs. S72-SS7. I. 4 = Ed, secs. SIG. SS7;
NJ. & ", secs. 1851 ,O96.l
II, therefore, the defendants had been
indicted here for removing the ballot.box
from the place designated by the county
court for holding the election, including
the count, in the presence OF such OF the
electors rs should choose ito attend, they
would, on the proof rs now presented
under this proceeding, be guilty under the
Revised Statutes OF the United States OF
violating their duty ~ election officers
under the laws Of the State and subject TO
the penalties imposed by Congress. Re
yised Statutes, Section 5,5l5.l The State
laws do not. evidently, contemplate such a
proceeding as that shown by this proof,
where the officers OF election carried the
ballots TO another place than that dcsig.
mated for holding the election in the pres.
cnce Of such electors rs "shall attend
that election, either for the purpose OF cast
ing their ballots, under Section $40 OF the
Code, or OF witnessing the count. under
Section $50. VI. and V. Ed. both these
sections being parts OF the same section
and even OF the same sentence OF the orig
inal act OF 1898, SCOTS Rev, 657,
ch. ., sec. 3. This place TO which they
unlawiully carried the box 30 make the
count was small private room, into
which only such persons were admitted ~
the officers chose TO admit, policemen
being stationed to guard the approaches 10
| II and enforce their orders in that behalf
As one OF the learned counsel for the de.
PENDANTS said. in argument, u was never
contemplated that In making this count
the officers should be put 10 the peril OF
deciding which Of the electors should pos
SEES the necessary qualifications Of resi-.
donce or what not emitting them 10 be-
present at the count. Tho counsel urged
that the officers, in the nature Of the case
could only be required 81 admit those who
had demonstrated tlcir right 10 be PRES
cnt at the count 10y the acceptance Of theft
votes aud the placing Of their names upon
| the poll lists. The truth Is the statutes
never contemplated or intended 10 provd,
that the officers OF election should be puI
10 the examination of the evidence Of III,
votes and the poll list 10 determine tha
question at all, not any more than tha
they should DO put 10 other eyidcnc,
aliunde that record. Neither Of thcs,
was contemplated because no such pro
cccdng a. count In closed or pfi
yatc room from which tho officials nigh
exclude or admit electors, accord
ing To any evidence whatever, wa
within the view Of the legislature. Thca
laws do not provide for such a situation a
that any mop than they do for n coun
with military guards aud military ordcr
ior the admission OF exclusion OF persons
desiring 10 be present nj the count NJ
such proceedings at elections are provides
for in the state Of Tennessee, but AN open
free and fair election In the presence O
the electors chosen 10 attend at a pariicu
lar place previously designated by law ans
recorded, where the casting OF the ballot
aud their counting Immediately upon th'
closing OF the polls shall take place, AM
neither Of these functions can he per
formed, lawfully, al any other place. No
the counting any morc than the casting O
the ballots Therefore, there was no dut
dcyolvcd upon these officers 20 count Oh
votes In another place than where the
were cast. protected by policemen o
themselves from improper infusion
| a. a A..
cannot bc held criminally liable for an
| ,I.lnIlnr, Of hnIN In IhnI rnl.url nlIhnT ~