People ex rel. Yates v. Ferguson — 8 Cow. 102

Majority

p. 102

The People, ex. rel. Yates, against Ferguson.

Headnote

Information in na.ture of a quo warranto, to try whethe relator, or the defendant, was duly elected county cperk 0f the county of Montgomery, at the annual election in November, 1825; tried at the circuit in that county in May, 1827, before Walworth, G. .

_ At the trial, the defendant gave in evidence the certificate of the county canvassers, dated November 16th, 1825; which it appeared that George D. Ferguson had 2424 votes foi- cohnty clerk, Henry F.- Yates 2419, H. F. Yates 14", Frey Yates 3, and several were given for Georgé Fer„uson> These abbreviated votes were claimed for the re- ° .... - . .«■. lator, and would1 entitle him to his election, even if the votes for the'defendant in' Mayfield, one of the towns' in Montgomery county, were properly retúrnéd. But' the relator gave the certificate of the inspectors of that town in evidence, which was thus: “ Two hundred and twelve votes were given for Henry F. Yates,- for the office of county clerk, thirty votes wére given' for Bichard' Dodge, four votes were given for B. Dodge, and one hundred and sixteen votes *were given for George-D. Ferguson, each for the game office; The' relator objected that the certificate did . - . , not show, as to the defendant, what- office the votes were The judge held the fair construction of the certificate

On an issue one’waa ed Co. Clerk, at length was Yatef; held, that votes for were "aiiowastances, the {tove^hat they were intended by the voters for Henry F. toaiThe often subscribed Ms Yates; that he been cíerk'and was a candidispute^votes that6 people would generally apply the abbreviation to no”other' sonwas known in the county where he was a candidate to whom it would apply.

So the elector who gaVe the abbreviated vote may he' sworn' as to the person intended.

A certificate-of town inspectors .was, that ,212 votes were given for Y. forthe office of county clerk, 30 votes for D. &c., and.11'6 for F., each for the sanie office.; held, that F.’a votes were well certified for him as a candidate for county clerk; and should' be allowed.

A witness is never holden incompetent, merely on the ground that the fact he is called te prove is of such a nature that he cannot be convicted of perjury, should he swear falsely.

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to he, that the votes. given for Dodge,.and the defendant*.were for the same office as those:-given.for-Yates;; and word each, as used, meant severally or, respectively. He, therefore* received the evidence.

The relator, then called Oren Johnson, one of the board of canvassersand offered to prove by him and other-canvassers, that they supposed the-votes which, were, given for H, F. Yates, were intended by the voters- to be given for the relator, Henry F. Yates; and that they did not allow-them to him, because only the initials of bis name* and not the name itself, was on them. The. relator also, offered to: prove, that the. persons who put in those .votes* actually in* ■ tended to vote for Henry F. Yates. This evidence was objected to by the defendant; and the judge decided that the court could not go back beyond the ballot boxes,- for the purpose off ascertaining the intention of the voters; that such-a principle would be of most dangerous tendency, as, it would lead to subornationof perjury; and that too'under such circumstances, that it would.be impossible to. convict the offender; that the intention of the electors-must be. de* termined from the ballots themselves, as they were found in the boxes and certified by the returns of the inspectors, in connection with, suck facts, as were matters of public no* toriety; and which, therefore, were presumed.to be known to the electors when ,the contested ballots were given; that, the statute required.thename of the candidate to be written On the ballot; and. the. canvassers- were bound- to reject these votes* whatever their opinion, of= the intention off the., voters might he, unless they were satisfied, that , the ballots contained the. name of the relator. That if H. F. Yates was the name of the relator, he was, at liberty to establishtha* fact by proof on. the. trial..

The judge received evidence, that the relator was usually called Fréy Yates, and. hot H. F., Yates-; though, his signature "'was sometimes written in the latter way. It appeared.also that the relator was formerly clerk of Mont* gomery"county-; and- several witnesses*, who w-ere electors in,that county, said, they heard, no person by the name; of

p. 104

Yates, beside the relator, spoken of as candidate for that 0^ce tpe e]ection 0f 1825.

The relator then offered to prove that the inspectors of election, when they canvassed the votes, and made out 1 J 1 their certificate, supposed that the votes of H. F. Yates were intended to be given for the relator; and also offered to prove that a person on seeing a letter addressed to H. F. Yates, would understand that it was intended for, the relator.

The court decided that the relator might give any evidence, and go to the jury upon the question, whether the relator was known by the name of H. F. Yates, as well as by the other names which had been testified to. •• But if he was not called by that name, and that was. not his real name, it was immaterial whether he was in the habit of signing his name at length, or only with the initials, or how persons would understand letters addressed to him by the initials only.' That the correct rules for the regulation of: the town inspectors, and' the county canvassers, were those which had been established by successive boards of state canvassers; and which had regulated' the decisions of the state board for many years. One of those rules was, to allow all votes which were mis-spelled, if the mis-speiling did not materially alter the sound of the name; anothér was, tó allow the usual abbreviations of a name; as Geo. for George, Hen. for Henry, &c.; and a third rule was to reject those votes where the initial letters of the Christian or surname only were used.’ That these rules had been settled by men of the first talents, several of whom had filled the highest judicial offices in the state; and their decisions had generally been made when the election of candidates did not depend upon the decisions. It would, therefore, be improper for any board of inspectors, or county canvassers, or even for a judge at the circuit, to adopt different rules of decision, before *those adopted, by the state canvassers should be pronounced wrong by the higher tribunals of the state. The decisions of legislative bodies, who were the exclusive judges of the qualifications of their own members, were liable, in every instance, to be

p. 105

more or less affected by political prejudices or individual partialities. Their decision was always made with direct reference to the right of the particular individuals , to the office ; and hence it was, that those decisions were generally made by small majorities, and without much uniformity.-

The . relator excepted to the various decisions of the judge, who charged the jury in conformity to those decisions ; and they found for the defendant.

A motion was now made in behalf of the relator for a new trial.

The cause was very fully argued at the present term by

M. T. Reynolds and A. Van Veehieri, for. the relator, and

W. I. Dodge and H. Bleeclcer, contra;

But the general views expressed by the respective counsel, will be found so fully stated in the decisions and charge of his honor the circuit judge, already given, and the opinion of this court, that it is deemed unnecessary to state the arguments.

The judge decided correctly,- beyond all doubt, as to the return from Mayfield. As to the other questions; the object of an election is, that the person receiving the greatest number of votes in ‘his favor, shall have the office designated by the electors. The statute requires, that the election shall be by ballot, “ which ballot shall be a paper ticket, contáining'the' name of a person for clerk of said county.” (Laws, sess. 45, ch. 201, s. 7, p. 271.) The inspectors, after closing the poll, shall set down in writing the names of the several persons voted, for at any such election, with the number of votes, in words at full length. (Id. s. 9, p. 273.) *It was contended on the argument, that here was a distinction intended between the name on'the ballot and the name on the .pertifi-. cate of the inspectors ; but I apprehend it is the number of votes wkich are particularly alluded to, as necessary to be written in words at full length.

p. 106

^ name, T understand to be a discriminative appellation,. °r ^eS7Sna^on an individual. This- is so ’ understood-universally, and the state canvassers, in the rules adopted' ^7 them, to which-the learned; judge at-the trial: referred,. so understand'it;- They admit- the. letters- Geov, .to. represent George. Why?-' because, by common consent,. they are admitted to represent that'word. So they receive Hen. for Henry, not because the man’s name- is Hen; but because Hem- is universally admitted- to represent Henry. The state canvassers, then, do not confine themselves to names written or printed at full length ; but they take-abbreviations. Why do they receive abbreviations when the act Says the ballot shall contain the name.? The answer must be because the abbreviation is evidence of the intent of the'voter. The intent" of the voter is" to be ascertained by the canvassers, not by examining witnesses or testimony of any description,, except that which is- inherent in the ballot itself. From this the canvassers adjudge that the. abbreviation represents the word, which- word represents-the name of the person voted for.

When we permitted an information to be filed in this, case, it was represented to us that the ballots containing the designation- H.. F. Yates,, were intended- for the -relator. The canvassers" had acted upon the idea that- they designated some other persom They had no means of examining witnesses, or- of receiving any evidence beside what- was upon the ballot itself. Courts and juries are. not so restricted. They possess more ample means to- determine any fact which is left in uncertainty; and,, in my judgment,, the learned judge erred in applying the same rule to an investigation by a court- and jury, which is applicable-to a tribunal who do not possess the power of examining witnesses upon oath:- From am inspection of the paper itself, it might well be doubted, whether H. F. Yates- represented *Henry Frey Yates, or some other- Yates whose Christian name was represented by the same lettersand the canvassers, as a board, were not bound to know tint no otker man. of the name of Yates Was-a canditate for tivt efikt& bf county clerk. But a court and jury can learn fro- ■? testimony., facts

p. 107

and circumstances which may lead to the irresistable conclusion that those votes Were intended for the rélator and no other. That the relator frequently subscribed his name H. F. Yates, that he- had formerly been clerk, arid then-was a candidate for that1 office, that people generally would apply those letters to the relator, and: that no other person-was known in the county to whom, those initials" were applicable, were facts which, if proven, would- justify the jury, in finding that those votes were intended and given for the relator.

The judge limited the relator to greater strictness than the canvassers. He required- him to prove that his name was H.- F. Yates; whereas the true question was,, whether those letters were abbreviations for his name? This is upon the same principle that Geo. and Hen. are allowed to represent George and Henry. Hen. is- not, strictly speaking, a name, as-Henry is; but'the fact-is, that the letters Hen. are an- abbreviation for Henry. Why then may not H. be also an abbreviation fór the same name ? It undoubtedly may; and so the question should have been put to the jury. A' new trial must therefore be awarded, to determine the question whether the votes given for H. F. Yates, were not given for the relatorthe costs to abide the' event-.'

Another propósitidtx was advanced by the judge, to which Í cannot assent; that you may not look beyond the ballot boxes for testimony, because of the danger of perjury and subornation of perjury. I consider the question fairly before a jury, and to be proved, like all other facts, by the best evidence which the nature of the case admits of. The elector' who put in' the ballot is certainly higher evidence, as the person designated by it, than the Opinion: of any other. Such elector is competent, unless he is to be excluded from principles of public policy; *and if any such principle excludes him, it must be the presumption that he will swear false. Deplorable, indeed, must be the state of society, where such a presumption is to be indulged against the only source of all legitimate authority, the electors, the people. I deny it, and enter my protest against it.

p. 108

It is true, if the voter should swear falsely, you proha- % cannot convict him of perjury. But are we to reject-every witness who. comes to swear, under such circumstances, that, if he swears false, he cannot be convicted of. perjury? I know of no such rule of evidence. The circumstances under which a witness swears, are proper to be considered by the jury, in order to determine the degree of credit due to him; but not to determine his competency.

Suppose a case where the statute of limitations is pleaded : A witness swears that the defendant admitted the debt to him, and promised to pay it, no other person being present. Is he presumed to swear falsely, because, if he does, you cannot convict him of perjury ? On an indictment for murder, one witness swears that he saw the prisoner kill the deceased: no body else saw it, or was in a situation to' see it, or, to contradict the witness; must he be presumed to have committed perjury ? If this principle is to be en-grafted upon the law of evidence, we must always inquire, before a witness is sworn, whether he can be convicted of perjury if he swears falsely; and if not, he, must be rejected. The doctrine of this court is, let any man be a witness in the 'cause, who is not interested, nor morally disqualified. If this testimony is incredible, or is contradicted, let it be rejected by a jury; but never reject a disinterested witness, because you presume he will swear falsely. If this is to be presumed of one voter, it is so of all. What a picture this of civil society I of a representative- government!^[1]

Hew trial granted.

[1] [1] See The People v. Van Slyck, 4 Cowen. 297; The People v. Vail, 2 Wendell, 12; The People v. Seaman, 5 Denio, 409 .