Mr. Justice Craig
delivered the opinion of the court:
On the hearing in the county court what purported to be the ballots cast at the election, the poll-books, tally list and the certificate of the judges of election were read in evidence. The certificate of the judges of election showed that E. M. Eggers received 126 votes and I. C. Fox 128 votes for town clerk, and that said Fox was declared elected. The tally list showed 126 votes cast for Eggers and 128 for Fox.
The poll-book showed J. M. C. Collard as voter No. 48 on the list of voters. Collard was called as a witness and testified: “I voted at the election held in Young Hickory township, Fulton county, Illinois, on the 5th clay of April, 1898. Had lived in Young'Hickory township from February 18 prior to the 5th day of April, 1898: Prior to that time I lived in Knox county. I moved from Knox county to Fulton county February 18, 1898.” The witness was then asked, “What ticket did you vote?” The question was objected to and the objection sustained. Thereupon the following question was asked: “For whom did you vote for town clerk on the 5th day of April, 1898, at London Mills?” The question being objected to, the objection was sustained. Counsel for petitioner then asked the witness the following question: “Have you any objections to answering for whom you voted for town clerk on the 5th of April, 1898?” and he answered, “I don’t know as I have.”
The general rules of evidence as to the competency of witnesses and the privileges of exemption from testifying prevail in election cases as in suits between private parties. (6 Am. & Eng. Ency. of Law, 422.) The law is also well settled that where the answer of a witness will expose him to a penal liability, or to any kind of punishment, or to a criminal charge, he is not bound to answer. (1 Greenleaf on Evidence, sec. 451.) In the authorities cited in the note in volume 6, page 422, supra, it is laid down that a legal voter cannot be compelled to testify for whom he voted, but it is also laid down that the exemption is a personal privilege, and the testimony will be received if the voter sees fit to give it. Here the witness did not claim his privilege and did not refuse to testify, and we are of the opinion that neither party to the action had the right to claim it for him. Moreover, Collard had not resided in Fulton county ninety days next before the election, and was not a legal voter. In addition to this, the witness had already testified that he had voted and that he had only resided in Fulton county from the 18th day of February, 1898,—fifty-six days before the election. He had therefore voluntarily exposed his unlawful act, and the answer to the question whom he voted for would neither detract from nor add to the force and effect of the evidence he had already given. We think the court erred in sustaining the objections to the questions.
James Reid was called as a witness, and testified that he resided in Young Hickory township. The following question was then asked: “Did you vote at the election held in and for the town of Young Hickory on the 5th of April, 1898?” The court stated that he need not answer, to which ruling plaintiff, by his counsel, then and there excepted. Witness then said, “I decline to testify.” He was then asked, “For what reason ?” and said, “I have no particular reason.” If the witness had no reason for refusing to testify in answer to the question propounded it was the duty of the court to compel him to answer. The witness did not claim a personal privilege, and neither the court nor the opposite party had the right to claim it for him. (29 Am. & Eng. Ency. of Law, 843.) The poll-books which were in evidence show Reid twice as a voter at the election in question. He was numbered in the list of voters first as No. 103 and second as No. 195, and it was claimed by the contestant that Reid had voted twice for the defendant and that both ballots were counted for the defendant. If the claim so made was true and appellant was able to establish it, he had the right to do so by any and all legal evidence he saw proper to produce. When Reid was asked if he voted at the election, the court had the undoubted right to advise the witness that he was not required to give any evidence which would criminate him, but after that was done the witness should have been left free to waive his privilege and testify, if he saw proper. It was neither the duty nor the right of the court to say or do anything which might prevent the witness from testifying if he saw proper. (Fries v. Brugler, 7 Halst. 79.) Three days after the election Reid made the following affidavit:
“State of Illinois, ) Fulton County. ss"
“James Reid, being duly sworn, on oath says: I attended the election for the town officers of Young Hickory township, held at London Mills in said town on April 5, A. D. 1898, and unthoughtedly voted twice at said election, and both times I voted the straight republican ticket, and each time I marked a cross (x) within the circle at the head of the republican ticket.
James Reid.”
After the court ruled that Reid could not testify in the case, the appellant offered his affidavit in evidence, but it was excluded by the court. The affidavit was not .offered for the purpose of showing that Reid was not a legal voter in the town on the day of election, but the sworn statement was offered for the purpose of showing that Reid had voted twice at the election, and on account of having voted twice both ballots should be rejected.
When and under what circumstances the declaration of a voter may be received when offered for the purpose of impeaching his vote is a question upon which the authorities are not harmonious. In 6 American and English Encyclopedia of Law (p. 429) the author says: “In England the weight of authority has been in favor of receiving the declarations of voters against their right to vote, although the earlier cases were in conflict. In this country the congressional cases are somewhat in conflict, although the weight of authorities seems to be in favor of admitting the declaration; and in the courts the authorities are also in conflict.” The author also says: “The authorities are not uniform as to whether declarations made after the election by the voters as to how they had voted can be admitted, but where made at the time of the election they have been admitted as a part of the res gestee.” Here the declaration embodied in a sworn statement was made only three days after the election, and there is nothing to indicate that it was made for the purpose of aiding either of the contesting parties, nor does it appear that any undue means were resorted to to procure the statement. In State v. Olin, 23 Wis. 309, it was held that when a person who had voted refused to testify to his qualification, his declaration that he was not naturalized should be admitted. The same principle was announced in People v. Pease, 27 N. Y. 45. Under the rule indicated in the cases cited, we are inclined to hold that after Reid refused to testify to any act which tended to show his vote was illegal, his sworn declaration, made three days after he voted, was admissible.
It .is also claimed in the argument that the court erred in refusing to consider the ballots and reject one counted for appellee which was marked with a circle within the circle at the head of the republican ticket. Section 59 of chapter 46 of the Election law (Hurd’s Stat. 1889, p.
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Mr. Justice Craig
delivered the opinion of the court:
On the hearing in the county court what purported to be the ballots cast at the election, the poll-books, tally list and the certificate of the judges of election were read in evidence. The certificate of the judges of election showed that E. M. Eggers received 126 votes and I. C. Fox 128 votes for town clerk, and that said Fox was declared elected. The tally list showed 126 votes cast for Eggers and 128 for Fox.
The poll-book showed J. M. C. Collard as voter No. 48 on the list of voters. Collard was called as a witness and testified: “I voted at the election held in Young Hickory township, Fulton county, Illinois, on the 5th clay of April, 1898. Had lived in Young'Hickory township from February 18 prior to the 5th day of April, 1898: Prior to that time I lived in Knox county. I moved from Knox county to Fulton county February 18, 1898.” The witness was then asked, “What ticket did you vote?” The question was objected to and the objection sustained. Thereupon the following question was asked: “For whom did you vote for town clerk on the 5th day of April, 1898, at London Mills?” The question being objected to, the objection was sustained. Counsel for petitioner then asked the witness the following question: “Have you any objections to answering for whom you voted for town clerk on the 5th of April, 1898?” and he answered, “I don’t know as I have.”
The general rules of evidence as to the competency of witnesses and the privileges of exemption from testifying prevail in election cases as in suits between private parties. (6 Am. & Eng. Ency. of Law, 422.) The law is also well settled that where the answer of a witness will expose him to a penal liability, or to any kind of punishment, or to a criminal charge, he is not bound to answer. (1 Greenleaf on Evidence, sec. 451.) In the authorities cited in the note in volume 6, page 422, supra, it is laid down that a legal voter cannot be compelled to testify for whom he voted, but it is also laid down that the exemption is a personal privilege, and the testimony will be received if the voter sees fit to give it. Here the witness did not claim his privilege and did not refuse to testify, and we are of the opinion that neither party to the action had the right to claim it for him. Moreover, Collard had not resided in Fulton county ninety days next before the election, and was not a legal voter. In addition to this, the witness had already testified that he had voted and that he had only resided in Fulton county from the 18th day of February, 1898,—fifty-six days before the election. He had therefore voluntarily exposed his unlawful act, and the answer to the question whom he voted for would neither detract from nor add to the force and effect of the evidence he had already given. We think the court erred in sustaining the objections to the questions.
James Reid was called as a witness, and testified that he resided in Young Hickory township. The following question was then asked: “Did you vote at the election held in and for the town of Young Hickory on the 5th of April, 1898?” The court stated that he need not answer, to which ruling plaintiff, by his counsel, then and there excepted. Witness then said, “I decline to testify.” He was then asked, “For what reason ?” and said, “I have no particular reason.” If the witness had no reason for refusing to testify in answer to the question propounded it was the duty of the court to compel him to answer. The witness did not claim a personal privilege, and neither the court nor the opposite party had the right to claim it for him. (29 Am. & Eng. Ency. of Law, 843.) The poll-books which were in evidence show Reid twice as a voter at the election in question. He was numbered in the list of voters first as No. 103 and second as No. 195, and it was claimed by the contestant that Reid had voted twice for the defendant and that both ballots were counted for the defendant. If the claim so made was true and appellant was able to establish it, he had the right to do so by any and all legal evidence he saw proper to produce. When Reid was asked if he voted at the election, the court had the undoubted right to advise the witness that he was not required to give any evidence which would criminate him, but after that was done the witness should have been left free to waive his privilege and testify, if he saw proper. It was neither the duty nor the right of the court to say or do anything which might prevent the witness from testifying if he saw proper. (Fries v. Brugler, 7 Halst. 79.) Three days after the election Reid made the following affidavit:
“State of Illinois, ) Fulton County. ss"
“James Reid, being duly sworn, on oath says: I attended the election for the town officers of Young Hickory township, held at London Mills in said town on April 5, A. D. 1898, and unthoughtedly voted twice at said election, and both times I voted the straight republican ticket, and each time I marked a cross (x) within the circle at the head of the republican ticket.
James Reid.”
After the court ruled that Reid could not testify in the case, the appellant offered his affidavit in evidence, but it was excluded by the court. The affidavit was not .offered for the purpose of showing that Reid was not a legal voter in the town on the day of election, but the sworn statement was offered for the purpose of showing that Reid had voted twice at the election, and on account of having voted twice both ballots should be rejected.
When and under what circumstances the declaration of a voter may be received when offered for the purpose of impeaching his vote is a question upon which the authorities are not harmonious. In 6 American and English Encyclopedia of Law (p. 429) the author says: “In England the weight of authority has been in favor of receiving the declarations of voters against their right to vote, although the earlier cases were in conflict. In this country the congressional cases are somewhat in conflict, although the weight of authorities seems to be in favor of admitting the declaration; and in the courts the authorities are also in conflict.” The author also says: “The authorities are not uniform as to whether declarations made after the election by the voters as to how they had voted can be admitted, but where made at the time of the election they have been admitted as a part of the res gestee.” Here the declaration embodied in a sworn statement was made only three days after the election, and there is nothing to indicate that it was made for the purpose of aiding either of the contesting parties, nor does it appear that any undue means were resorted to to procure the statement. In State v. Olin, 23 Wis. 309, it was held that when a person who had voted refused to testify to his qualification, his declaration that he was not naturalized should be admitted. The same principle was announced in People v. Pease, 27 N. Y. 45. Under the rule indicated in the cases cited, we are inclined to hold that after Reid refused to testify to any act which tended to show his vote was illegal, his sworn declaration, made three days after he voted, was admissible.
It .is also claimed in the argument that the court erred in refusing to consider the ballots and reject one counted for appellee which was marked with a circle within the circle at the head of the republican ticket. Section 59 of chapter 46 of the Election law (Hurd’s Stat. 1889, p. 613,) provides: “All the ballots counted by the judges of election shall, after being" read, be strung" upon a strong thread or twine in the order in which they have been read, and shall then be carefully enveloped and sealed up by the judges, who shall direct the same to the officer to whom by law they are required to return the poll-books, and shall be delivered, together with the poll-books, to such officer, who shall carefully preserve said ballots for six months, and at the expiration of that time shall destroy them by burning without the package being previously opened.” If the course indicated by the statute had been followed by the judges of election in disposing of the ballots, then appellant would have been entitled to have the ballot objected to examined on the hearing, and if it was not marked with a cross in the circle or a cross opposite the name of appellee it would have been the duty of the court to have rejected the ballot. But such was not the case. On the night of the election, after the ballots were counted and the result declared, they were not scaled up and delivered to the town clerk, but were strung on a wire, the wire was knotted, and they were then placed in the ballot-box and a rope or cord tied around the box, and it was placed in one of the voting booths in the town hall where the election was held. The town clerk, Lance, locked the hall door and kept the key until the second day after the election, when the judges and clerks went to the town hall, took the ballots from the ballot-box, sealed them up and delivered them to the town clerk. It also appears from the evidence that a justice of the peace and a police magistrate each had a key to the town hall. It thus appears that the ballots were left in the town hall, where they might be reached and tampered with by a person who might feel disposed to do so. If, after the polls are closed, the votes counted and the result declared, the judges of election for any cause are unable to deliver the ballots and poll-books to the proper custodian, it is their duty to keep such ballots and poll-books in their possession, so that no one can have access to them, until such time as they can be delivered over to the proper custodian, otherwise the ballots will lose their value as evidence when relied upon to impeach or discredit the result as shown by the poll-books. (Kingery v. Berry, 94 Ill. 515.) There is no evidence here, it is true, that the ballots were meddled with by unauthorized parties, but they were left in the town hall from Tuesday night until Thursday in an exposed condition, where they might have been reached and tampered with. Under such circumstances we are of opinion that before the ballots could be used to impeach the returns as shown by the poll-books, it devolved upon the appellant to prove that the ballots were not changed or tampered with before they were delivered to the custodian on the second day after the election.
We are therefore of opinion that the ruling of the court on the ballot mentioned was correct, but for the errors indicated the judgment will be reversed and the cause remanded.
„ 7 ■, 7 7 Reversed and remanded.