Black v. Pate | Cases | Westlaw

**435 *516 The election was held on August 6, 1900. On August 11, 1900, the said George W. Black was declared elected to the office of sheriff of said county by the board of supervisors of election of Geneva county. The contest proceedings were commenced on August 25, 1900. The declaration of contest, as originally filed, declared that George W. Black was not entitled to be declared elected sheriff of Geneva county upon two grounds: First. On account of illegal votes; and the contestant avers that illegal votes were given to George W. Black for sheriff, which, if taken from him, would reduce the number of legal votes given him below the number of legal votes given to the contestant. Second. That at the time of holding said election on August 6, 1900, George W. Black was not eligible to the office of sheriff, because he was at said time, and had been for several years prior thereto, the sheriff of Geneva county. On September 1, 1900, the contestant filed an amendment to his statement of contest, in which he set out a third ground of contest, which was, in substance, that in beat 15 of Geneva county there was fraud practiced by the managers, the clerk or returning officer, or some other person, by reason of which certain votes cast for the contestant were in fact counted as having been cast for the contestee. The contestee demurred to the second ground of contest as contained in the original statement filed by the contestant *517 upon the ground that it fails to show that George W. Black was on August 6, 1900, the sheriff of Geneva county, and that said ground of contest fails to allege that George W. Black was his own successor in the office of sheriff, within the meaning of the constitution. The contestee also filed an answer to the statement as originally filed, in which he admitted the candidacy for sheriff of the contestant and himself, and that they were each resident citizens of the county of Geneva. He then denied in his said answer that there were any illegal votes cast at said election which were given or counted for the contestee, but charged that at said election illegal votes were cast and counted for the contestant, which, when taken from the vote given to the contestant, will reduce the number of legal votes cast for him below the number of legal votes cast and counted for the contestee. In further answer to the first ground of contest, the contestee averred that at said election there were cast for him, in a legal manner, nine legal votes in precinct No. 3, which were thrown out of the count by the managers of said election. Further answering the first ground of contest, the contestee averred that in precinct No. 10 of said county the court house was constituted as the only place in which the election in said precinct could be held, but that, notwithstanding this fact, an election for said precinct was held at what is known as and called “Roneys' School House,” in addition to the election held at the court house in said beat, and that at said Roney's school house there were 41 votes cast, all of which were counted for the contestant; and that all of said votes should be deducted from the total number of votes counted and allowed for the contestant, upon the ground that the said Roney's school house was not a legal place for holding said election in precinct No. 10. In answer to the second ground the contestee denied that at the time of holding the election on August 6th he was ineligible to the office of sheriff of said county, and averred that on March 13, 1897, Dan Vaughan, **436 who was then the sheriff of said county, and discharging the duties thereof, died, his death causing a vacancy in said office; that on March 25, 1897, the deceased was *518 duly appointed by the governor to fill said vacancy, and he qualified under said appointment on March 27, 1897; and that at the time of holding said election he was sheriff, and discharging the duties of said office, by virtue of said appointment, and not by reason of having been elected thereto by the people of said county. The contestee also moved the court to strike the amendment offered by the statement of the contestant, which was filed on September 1, 1900, from the file, upon the ground that more than 15 days had elapsed from the time the declaration of the result of the election had been made. The contestee also demurred to said third ground of contest, which was added by amendment, upon several grounds, and filed an answer denying that there was any fraud practiced by any of the officers holding said election, or in declaring the result thereof. It is unnecessary to set out the grounds of this demurrer. The court overruled the demurrer interposed to the first and second grounds of the contest as contained in the statement, and also overruled the motion to strike the amendment from the file, and the demurrers to the amendment. To each of these rulings the contestee duly and separately excepted.

On the trial of the case it was shown that both the contestant and the contestee were resident citizens of Geneva county for several years prior to the election on August 6, 1900, and were qualified electors; that at the election in August, 1896, Dan Vaughan was duly elected and qualified as sheriff of Geneva county; that on March 13, 1897, said Vaughan, while said sheriff, and discharging the duties of his office, died, leaving a vacancy; that on March 25, 1897, the contestee was appointed by the governor of Alabama to fill said vacancy caused by the death of said Vaughan, and on March 27, 1897, qualified, and received his commission as such sheriff; that on August 6, 1990, said George W. Black was discharging the duties of the office of sheriff under and by virtue of his appointment, and not by any election of the people. It was further shown that the court house was located in beat No. 10; that there had been, some *519 years before the general election in August, 1900, a new polling place, in addition to the court house, established in beat No. 10, at what is known as “Roney's School House”; and that on the day of the election on August 6, 1900, the polls were legally and duly opened at said Roney's school house, as well as at the court house; and there were a number of votes cast for the contestant at Roney's school house. It was also shown that in beat No. 3 there were several ballots which were voted for the contestee that were rejected and not counted by reason of irregularities in the marking of them. These ballots showed that on each of them the cross mark made upon the ticket, while made opposite the name of George W. Black, was made on the right-hand side of the ticket,–that is, after the name of Black, and not before it; and that there was no other mark opposite any of the other names which appeared as candidates for the office of sheriff. The evidence for the contestant tended to show that in several of the beats of the county people voted who were not entitled to vote, and many illegal votes were counted for the contestee, which should not have been counted for him; and that, if the votes which were illegally cast were rejected, the contestant would have received a majority of the legal votes cast in the county for the office of sheriff. It was shown that the majority declared for George W. Black in the vote of the whole county was 11. There was also evidence introduced by the contestant tending to show fraud and corruption on the part of the managers, or returning officers, or clerks, or some other person in reference to the votes cast in some of the beats of the county; some of the witnesses introduced by the contestant testifying that in beat 15 of said county the tally sheets on which the votes were counted, when the boxes were opened, had been altered; that erasures were made in the tallies or count of the votes given to the contestant, and that the tally sheets were not in the same condition as when they were made by the clerks at the polling places in the beats and locked in the ballot boxes and delivered to the returning officer. The evidence for the contestee tended to show that *520 there were no illegal votes cast for him in said election, and there were none counted for him; that there was no fraud or corruption on the part of the managers or any officers of the election, or on the part of any one else; that many illegal votes were cast for the contestant, and counted for him, and that, if these illegal votes so cast for the contestant and counted for him were rejected, a majority of the contestee over the contestant would be much greater than that declared by the board of supervisors. During the examination of J. J. Russell, who was one of the inspectors of the election in beat 15, he was asked by the contestant the following question: “For whom did you vote at said election for the office of sheriff?” The contestee objected to this question, upon the grounds: (1) That it called for illegal testimony; (2) that it had not been shown that the witness was an illegal voter; and (3) because it is against public policy for a voter to testify for whom he voted. The court overruled this objection, and the contestee duly excepted. Upon the witness answering that he voted for the contestant, the contestee moved to exclude his answer upon the same grounds assigned in support of his objection to the question, and duly excepted to the court's overruling his objection. This witness was further asked by separate questions **437 for whom had several designated persons voted for the office of sheriff at said election. The contestee objected to these questions upon the same grounds as are interposed to the other question, and, in addition thereto, the following ground: Because the law does not permit an official of an election, who acquired his knowledge by virtue of his office, to discuss how an elector casts his vote. The court overruled the objection, and the defendant duly excepted. Upon the witness answering the question by stating how several persons inquired about voted, the court moved to exclude the answer upon the same grounds. The court overruled the motion, and the contestee duly excepted. Similar questions were propounded to several witnesses in reference to different beats in the county, and the same objections were interposed to each *521 of such questions, and the contestee separately excepted to the court's overruling each of such objections. Ben Lee, a witness for the contestant, testified that he lived in beat 13 in Geneva county, and was the marker in that precinct at the August election, 1990; that Tom Chapman, a negro, who lived in said beat, came to the polls to vote, and that the witness marked his ticket for him; that Chapman voted for George W. Black for sheriff; that there were four other negroes there who voted at that box that day. The contestant asked the witness the following question: “State whether or not, in your judgment, from his appearance, Tom Chapman was over or under 21 years of age.” The contestee objected to this question, because it called for illegal evidence, and for the opinion of the witness, and because the age of a man cannot be proved in that way. The court overruled the objection, and the contestee duly excepted. The witness answered that in his judgment Tom Chapman was 16 or 18 years of age. The contestant moved to exclude this answer upon the same grounds, and duly excepted to the court's overruling his motion. During the further examination of this witness, the contestant asked him for whom the three other negroes voted for sheriff, whose tickets he marked. The contestee objected to this question on the ground that it called for illegal testimony, and that it was against public policy for one party to discuss how and for whom another voted. The court overruled the objection, and the contestee duly excepted. Upon the witness answering that all of them voted for George W. Black, the contestant moved the court to exclude the answers upon the same grounds as were assigned in the objection, and duly excepted to the court's overruling the motion. J. M. Lee, as a witness for the contestant, testified that he lived in beat 13, and was the manager in said beat at the August election, 1900; that there were four other negroes besides Tom Chapman who voted at that election in that beat; that these negroes were working on a railroad with a contractor; that he was acquainted with the citizens of the beat, and that, in his opinion, said negroes did not reside in said beat; that *522 they had no other residence in the beat than the railroad camps; that he did not know of any of them being in the beat before the railroad was commenced, and that since the election they had all moved away when the contractor went to another place on the railroad to continue work; that no one of said negroes ever voted in the beat before the August election, 1900; that he did not know where they came from, nor when they came into the beat. The contestant then asked the witness the following question: “Did you hear either of said parties say where he came from?” To this question the contestee objected upon the ground that it called for illegal, incompetent, and hearsay evidence. The court overruled the objection, and the contestee duly excepted. The witness answered that some 10 or 12 days after said August election he was at the railroad camps, and heard one of the negroes say that he came from Florida, and another say he came from Mississippi; that the negroes making these remarks were among those who voted at said election in beat 13. The contestee moved to exclude the said answer of this witness from the jury upon the ground that it was illegal, incompetent, and hearsay evidence. The court overruled the objection, and the contestee duly excepted. Upon the examination of Jere Merritt as a witness for the contestant, and after he had testified that he was the manager at the August election in beat 10 in Geneva county, and that he remembered that a negro by the name of John Williams came to vote in said precinct, he was asked the following question: “What, if anything, he heard said John Williams say at the time as to where he came from.” The contestee objected to this question on the ground that it called for illegal and hearsay evidence, and because the residence of a man could not be proven in this manner. The court overruled the objection, and the contestee duly excepted. The witness answered that John Williams stated, when he offered to vote, that he worked at McDuffie's turpentine still. The court overruled the contestee's motion to exclude this answer, which was based *523 upon the same grounds of objection as were interposed to the question, and to this ruling the contestee duly excepted. It was shown by other evidence that McDuffie's turpentine still was in beat 14, and that said John Williams resided in beat 14. This witness further testified that Dan Glover, a negro, voted in beat 10 in the August election in said county; that said Glover came direct from Florida to Geneva county, and had not been in said county a year before the August election. A. B. Jernigan, a witness for the contestant, testified that he knew the said Dan Glover, who voted in beat 10 in the August election, and said witness was then asked the following question: **438 “Just prior to and on or about the election time in August, did you hear Dan Glover express himself as to whom he was for for sheriff?” The contestee objected to this question because it called for illegal and hearsay testimony. The court overruled the objection, and the contestee duly excepted. The witness answered that said Glover expressed himself as being for George W. Black for sheriff. The contestee moved to exclude this answer, and duly excepted to the court's overruling his motion.

The contestant introduced in evidence several witnesses, to each of whom was propounded the following question: “For whom did you vote for the office of sheriff at the August election?” The contestant stated that such questions were asked each of such witnesses in order to show that the persons claimed by contestant to be illegal voters at said election in said precinct voted for the contestee. The contestee separately objected to each of such questions propounded to the several witnesses upon the grounds that it called for illegal evidence, that it was not shown that said vote was illegal when cast, and it was against public policy for a person to tell how and for whom he voted, and because the witness could not tell how he voted as a means of ascertaining how some other voter cast his vote. The court separately overruled each of such objections, and the contestee separately excepted to each of such rulings. Upon each of the witnesses to whom the separate question was asked answering that *524 he voted for the contestant, the contestee moved the court to exclude the answers upon the same grounds as were assigned to the questions, and duly excepted to the court's overruling his motion. No one of the witnesses who was so interrogated claimed the right on the stand to refuse to disclose for whom he voted for sheriff. It was shown by the evidence that in beat No. 7 there were a great many negroes, designated as the “Ruffin negroes,” whom the evidence for the contestant tended to show voted for the contestee. The evidence for the contestant further tended to show that these negroes were laborers upon the railroad that was being constructed through the county, and that they had come into the county with the contractor within three months before the election, but had not resided in the beat 30 days prior to said election. It was further shown that they had no residence in said county or beat except in the railroad camps. The contestant sought to prove by several witnesses that these negroes had left the beat a short time after said election. Upon the introduction of this evidence the contestee objected upon the ground that it was illegal, irrelevant, and immaterial. The court overruled the objection, and allowed the evidence to be introduced. One Ed Hardwick, a witness introduced by the contestant, testified that he was registrar in beat No. 7. He identified the registration book in which were registered the electors who voted in beat 7 at the August election as the one kept by him, and testified to its correctness. This witness testified that he knew the Ruffin negroes, but did not remember the names of any of them, except by reference to the registration books. The witness was thereupon asked to call the names of the Ruffin negroes whom he registered, and upon his commencing to read their names from his registration book the contestee objected upon the ground that it was illegal, and because the witness could not look to the registration book to refresh his memory. The court overruled the objection, and the contestee duly excepted. The said witness then read from the registration *525 book the names of the Ruffin negroes who had registered on the election day in beat No. 7. The contestant then introduced the registration book from beat No. 7 as it had been identified and shown to have been correct by the registrar Hardwick, for the purpose, as stated at the time, of identifying the parties served on the contestee as illegal voters in beat 7. To the introduction of this book in evidence the contestee objected on the ground that it was illegal, irrelevant, and immaterial. The court overruled the objection, and the contestee duly excepted. The contestant also introduced, against the objection and exception of the contestee, the poll lists of beat No. 7 and beat No. 15 and beat No. 13. Upon the hearing of all the evidence the judge of probate, before whom the case was tried without the intervention of a jury, rendered judgment in which he declared that George W. Black was ineligible to be elected to the office of sheriff of Geneva county at the August election, 1900, and further decreed that B. F. Pate was duly elected for the office of sheriff, and was entitled to said office. From this decree the contestee appeals, and assigns as error the many rulings of the trial court to which exceptions were reserved.