The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1893-09-27
THE GREAT DISCREPANCY.
Only 1853 Men Voted But Harper
Counted 1860.
ALDERMAN GUPTILL TELLS OF
THE BURNED BALLOTS.

Mr.. Giles Bailey Tells How Harper Deter
mined in Advance to Allow No Assis-
tants in the Count-Mr. Decelle Tells OF
the Time from the Closing of the Polls
to the Declaration of the Resuit-some
Very Interesting Testimony.
The attendance in the Superior Court
room, yesterday morning showed that
the public interest in the trial of Thomas
R. Harder had not at all abated. A large
audience arose to their feet when Judge
Bonney, at the Sheriff's announcement
of the g the court took his seat on the
bench.
The proceedings began at once
A few preliminary remarks were
made by Mr.. Clifford relating to the
scope of his objections of yesterday.
Then the continuation of the govern
ment's side was continued.
Mr.. john w. York,
was the first witness called by the gov
eminent He testified that he was at the
polls at Ward One all day during the vot-
ing at the election of March 9th. lie was
assistant to the Warden at the Warden
desk, in the checking of the voting list.
Here the witness identified the cheek hst
which be had assisted in checking.
County Attorney True next asked the
witness if he had not during the day
called attention of the Warden IN oathe
manner in which the voters were being
assisted to mark their ballots.
Mr.. Clifford objected to this question as
relating to something not mentioned IN
the Indictment
Mr.. True said this line of inquiry was
adopted for the purpose of showing Har-
per's intent.
Mr.. Clifford renewed his objection, and
addressed the court somewhat at length
He read carefully from the Indictment,
dwelling on every portion which he con-
ceived necessary to sustain his objection
viz: that the indictment did not allege
the intent. The passages of
The Indictment.
charging Harper with intent to de
fraud" and Cheat" did not, according
to the decisions of the court, imply an
original intent such as this Indictment
ought to allege in order to admit the
line of inquiry attempted by Mr.. True.
81 object to any evidence as to intent
being admitted, as it cannot be done
rightfully under this allegation. A mis-
count is not per Sc criminal, and after
actions do not make it criminal. 1t is
not principle. of common law that a
,niscount is criminal.
It rests upon the prosecution to show an
intent which would make that miscount
criminal And it is for the jury to
Judge as to the fact of that intent. Mr..
Clifford read desicions tending to show
that only civil, and not criminal ability,
may attach to cheating and defraudlng.
Hence, as the indictment went no farther
than to allege fraud and cheating, the
conclusion would be that the Indictment
was insufficient. But all the counts
did not even allege cheating an
fraud, merely stating that Harper had
"wilfully" and "feloniously" acted.
It is wrong fol. the County Attorney to
come up here and assert the wrong and
inhuman doctrine that because a mis-
count has been made, that therefore that
act was criminal. The Indictment is in
sufficient. To use the words "cheat "and
"defraudn is not sufficient.
In Reply
Mr. True said that the cases cited by the
counsel for the other side were cases OF
fraud and conspiracy, cases very COM
plicated and of such nature that the
courts had to be very strict. Such
strictness was not necessary in cases
like this under the common law. The
Maine Statutes, Sec. IL, chap. 49, state
that when ali intent to defraud is neces-
sary to constitute case of this sort,
general allegation of fraud is sufficient.
Mr.. True claimed that this was an
offence where the defendant had certain
acts to do. The record and the acts were
separate The Warden was responsible
only for the act; but the record was ad-
missable to show the nature of the act
Now this respondent had made count
which he knew to be false; and the in
dictment makes sufficient allegations on
this point, and is good.
The Judge said he would take the in
dictment to his room and read it, and in
the meantime the jury might take re-
cess.
After the recess
Judge Bonney Said:
81 have examined the Indictment and
the authorities cited as well as have
been able, and L think the government
can proceed with it's testimony"
Mr.. Clifford said he should reserve an
exception as to all the testimony bearing
upon the intent
The examination of Mr.. York proceeded
to state the circumstances of the assis
lance of voters. There were several cases
during the day when, as voters came
in, the Warden would direct the ballot
clerk to assist those voters although
they had not asked for assistance.
l called his attention to these acts. His
reply was: II am attending to this.
The clerk whom he directed to do these
things was named Butler.
Mr.. True-Did Butler belong to the