Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1888-03-29
FITzGERALD'S CASE.
THE DOUBLE REGISTRATION
SHARP SET FREE.
The Decision of Township Justice
Davis Analysed and Its Illogi-
cal Character Exposed.

William Thomas Fitzgerald was arrested
on the 18th inst. for illegally voting at the
election held in this city on that day
Justice of the Peace Davis, to whose
Court the case was removed on the affida-
Wit of the defendant, that he could not
have an impartial examination before
Justice Post, heard the case as commit
ting magistrate, under Section As of the
Penal Code, declaring that every person
note ntitled to vote, who fraudulently votes
is guilty of felony"
Justice Davis yesterday rendered his de-
cision discharging Fitzgerald. The i'm
partial mind, on comparing that decision
with the facts ELECTED on the examination,
must pronounce it Illogical and unwar-
ranted.
THE STRANGE DECISION.
The decision in full is as follows, and it
is commended to the reader as a remarka-
BILE document, that deserves to go down the
ages as curiosity of The law. For the
sake of convenience in analyzing this re-
markable document we have numbered
the paragraphs. The absurdity of the de-
cision, to put it very mildly, is fully ex-
posed by comparing it with the facts
l. This is charge of voting in Precinct
Three without legal right, under Section As of
the Penal Code. The evidence shows that
defendant registered in Precinct No. on
January 81, 1888; that on March -, 1888,
he voted at this precinct without challenge.
Subsequently he was arrested for felony, in
voting name he was not entitled to vote
1t was discovered afterwards that his name
was all right. Then new complaint was
filed, charging him with voting in a pre-
cinct where he was not entitled to vote. 1t
was shown that there was a w. T. Fitz-
gerald on the Register at San Francisco
The opinion of an expert was given that
the signatures on the affidaavits at Sacra-
mento and San Francisco were similar.
am aware of the responsibility resting
upon me, but in all criminal cases no Court
should be influenced by other than legal
evidence.
Every defendant is entitled to fair
hearing, and 1t devolves on the prosecution
to make out a case before a magistrate is
authorized to hold a person accused of
crime. Every person is presumed to be
innocent until the contrary appears by
competent evidence. 1t must affirmatiyely
appear that the defendant fraudulently or
feloniously procured his registration at
Sacramento, and that he was not a Quail
flied voter in this city.
3. The conjecture that he might have been
the same party that was on the San Fran
cisco Register in 1886 does not raise any
presumption against him or establish fell
onious intent.
The registry laws of San Francisco
are Independent of the general laws,
and provide for a re-registration be-
fore each general election, and apply only
IN Eronnicaa II e IL:
defendant cannot vote either here or at San
Francisco without REPRESENTATION.
8. There cannot be two registers in this
county. The Supervisors on March 9th Or
dered new register, and the Clerk is now,
and has been since that date, re-registering
voters.
6. There were some legal questions upon
the application of the Codes to the city of
Sacramento, but, whatever force tn ere NAV
be in this position, l do not feel called upon
| to decide, as | am of the opinion that the
prosecution has not established any teloni-
| Gus or fraudulent intent or act by defend
| ant in this casa. There is no evidence to
show that he did not have legal right to
vote. The Court has no right to deal in
mere generalities or conjectures, and all
Prescriptions are with the accused.
7. The evidence does not show that he is
not a voter, except the inference that a SINH
lar name is on the San Francisco Register
OF 1856. This, in the light of the fact that a
re-registration is necessary before every
general election, clears the case of feloni-
GUS intent, which is not affirmatiyely
shown by the prosecution.
8. If it is a fact that this Is the same
Fitzgerald, it is certain he could not
vote there if he has moved his resi-
dence to this city-evidence being a ques-
ton of intent as well as law, and in
tent governs. The regular registration by
him in this city is presumption in his ia
vor. Most certainly his name could not be
cancelled on such showing made in this
case, much less sustain criminal charge
8. The prosecution in this case has urged
that under Section S72 of the Penal Code
that If it appears to the magistrate that a
public offense has been committed. even
different from the one charged it is his
duty to hold defendant to answer upon the
crime appeared 10 have been committed
Now, you cannot make fishing-pond out
of this Court; that if you cannot catch a
defendant on one charge, find him guilty
on another. | do not believe Jury would
find defendant guilty on this charge; and
would incur considerable expense to the
county if he were held.
10. Holding these views, | cannot find
should be held.
He is therefore discharged.
THE FACTS IN THE CASE
That the reader may see how weak the
decision is, and how the facts fail to sup
port it, we give the testimony presented in
the case, reproducing it in the fewest posi-
bic words and not emitting any essential
fact.
l. E. II. Mckee, City Auditor, testified
to the regularity of the call for an election
in Sacramento, March 18th, and that it was
held in accordance with the call, and pro-
duced the official records in substantiation.
2. J. v. Ramage testified that Fitzgerald
voted at 81 precinct on the 18th. giving his
residence as the William Tell House.
3. John Barrett, Inspector of Election,
testified that defendant voted at the cleo
ion of March 18th, in Sacramento. as
William Thomas Fitzgerald.
4. The landlords of the old and new
William Tell Hotels testified to their belief.
with emphasis, that defendant had never
roomed or boarded at either house.
5. o. A. Tolle. Deputy Registrar, San
Francisco testified that Fitzgerald is regu.
larry registered in that city; that the regis
tration is uncancelled, is in full force, and
that defendant is entitled to vote in San
Francisco on that registration. Defendant
registered as William Thomas Fitzgerald
on the 30th of September, 1886, as 80 years
of age, native of California, and residing
at us Howard street, third floor, Room 81.
Witness produced the documentary evil
dence of his office in support of his testi-
mony.
6. VIM. B. Hamilton. County Clerk of
Sacramento, and ex officio Registrar of
Voters, testified that defendant registered in
Sacramento as William Thomas Fitzgerald,
January "a, 1888 age SO, native OF Cali
fsrnia. and residence Third Ward.
z. w. w. Rhoads, Deputy County Clerk of
Sacramento, testified that be registered de-
PENDANT, and as by law required, asked him
II he was registered in any other county,
and Fitzgerald replied that he was not, and
then made the affidavit required by law.
s. The affidavits signed by and sworn to by
Fitzgerald on registering in San Francisco
and in Sacramento were introduced and
shown 10 handwriting expert Frank Miller,
cashier in the d. o. Mills National Bank,
and he testified that the signature was
written by the same hand.
8. NJ. J. O'Reilly, deputy in the office of
the State Controller, testified that he knew
Fitzgerald as resident of San Francisco,
but had seen him in Sacramento in fair
weeks and daring sessions of the Legisla-
ture.
10. No testiuonysoas offered IN behalf Of the
defendant.
TIT