Western Kansas world. [volume] (WaKeeney, Kan.) 1885-current, 1897-05-08
In the District Court of Trego County,
Kansas


Kansas.
Joshua H Piainaiff in Error. Opinion
John F, Barclay, of the Court.
Defendant in Error.
Continued from last week.
E. X. Westover and HI. III. Artz
were first examined as to their quail
fications as electors, and then before
the trial court had announced any
finding as to whether their votes were
legal or otherwise, were permitted to
testify for whom they voted for coun-
ty commissioner. Counsel contends
that such testimony could not be re-
ceived until the court had first made
and announced a finding that the wit
nesSes were not qualified voters. This
court is of the opinion that these OBJ
jections were not well taken. The
trial court could not legally require
the witnesses to answer such queS-
tiOnS, until, in its judgment, prima
facia Case of want of legal Qualifica-
tiOnS had been shown, but it was the
sole Judge of the question whether
such prima facia showing had already
been made, and was not required to
formally make public announcement
of such finding before compelling the
witnesses to testify on that subject.
(See People VS.. Tague, LOG n. G. 576.)
At any rate the Statute quoted is de-
signed for the protection of such wit
neSSeS as desire not to disclose for
whom they vote, and not for the ben
eft of the candidate. In that respect
it is like the law that cOmpelS no wit
ness to criminate himself. 1t is
personal privilege which the witness
alone can claim and the competency
of his testimony if given is in no wise
affected by the fact that he was not
bound to give it..
The next error complained OF Is the
tn n n
fly to conversation between himself
and Alfred S. Bailey, an alleged lille
gal voter. at the polling place about an
hour before the latter voted, whereby
it was sought to be proven that
Bailey'S ballot was cast for the con-
testOr. The period elapSing between
the time of the conversation and the
deposition of Bailey'S ballot in the
box was too great to admit of the in
PRODUCTION OF his statements in evil
dence as a part of the res geStae and
they were properly excluded as hear
say testimony. (Gilleland VS.. Schuyler
9th Kansas, $50. TarbOX VS.. Sughrue,
Both Kansas, 220-
1t is also claimed that the admission
of any evidence tending to show that
Henry Sherry was not Il legal elector
because there was no sufficiently dis
Jinct description of him by name,
contained in the conteStor'S state
ment. He was therein referred to as
lone Henry Shurg or Henry Sherry"
Counsel claims that this description
OF the voter is not sufficiently definite
to warrant the introduction. of any
testimony concerning him. The sui
ticiency OF the pleading in this regard
was not raised by motion or other
wise. While the court might proper
ly, upon the motion of the cOnteSUee,
have required the confession to state
whether the name OF the elector
whose qualifications were questioned
was Henry Shurg'' or Henry Sher-
ry'' the. right TO require Il more def
mite statement tnan the pleading
contained was waived by going to
trial without raising the question and
this objection was properly overruled.
After the evidence had all been in
trOduced and the case argued, the
trial cOurt'made d number OF findings
OF fact and conclusions OF law, which,
abbreviated, may be stated SubStan-
italy, and in effect, as follows:
1st.e That none of the ballots chal-
lenged by either party were illegal.
End. That neither Bailey, Baker
nor Chrlstinson illegally voted for
Barclay.
Bird, That ArtZ, FOrdice, Westover
and Sherry. none of whom were legal
electors, all voted for MuSgrave.
4th. That Barclay received ma
jority of two of the legal votes cast
office by failing to file d sworn state
ment OF election expenses within the
required time.
numerous criticisms of these find
ings and conclusions are made by
counsel. On the question of the le-
gality of the ballots it is urged that
the one referred to in the tenth find
ing which lacked the endorsement OF
the initials of either of the judges of
the election board on the back should
not have been counted for Barclay.
This involves IA construction of that
portion of Section 25 of the australian
Ballot law of 1898, which provides
that mo ballot without the official
endorsement shall be allowed to be
deposited in the ballot box. and none
but ballots provided in accordance
with the provisions of this act shall
be counted" 1t will be noticed that
while the Statute prohibits the board
from depoSiting ballots lacking the
necessary endorsement in the ballot
box, it does not, in express terms. pro-
vide that such ballots shall not be
counted. 1t states that only those
provided in accordance with the
provisions of this act shall be count