Aveky, J.
after stating the facts: The motion made at the Febiuary Term, 1889, to compel the plaintiff to file a bill of particulars, rested upon the ground that the second paragraph of the original complaint was not sufficiently definite. The section referred to was as follows:
“ 2. That the relator John Boyer at said election, as he is informed and believes, received a majority of all the legal votes cast, and was duly elected to fill the said office of Sheriff of said county for the said term of two years, but notwithstanding the relator received said majority of the lawful votes cast and was duly elected to said office, the defendant M. E. Teague, against the protest of the relator and against his consent, has been unlawfully inducted into said office, and now unlawfully usurps the office to which the relator was elected and is wrongfully and unlawfully-holding the same and receiving the profits and emoluments thereof, which rightfully belong to the relator.”
The plaintiff thereupon amended his complaint by substituting in place of said paragraph the following:
“ 2. That the relator John Boyer, at said election, as he is informed and believes, received a majority of all the legal votes cast, and was duly elected to the office of Sheriff of Forsyth County for the said term of two years, but notwithstanding the relator received a majority of the votes cast by legally qualified voters of said county, a large number of votes were cast for the defendant at the various precincts in said county by persons who were not qualified voters in said respective voting precincts and townships, and were received and'counted by the poll-holders. Some of said votes were cast by persons who were not residents of the townships and voting precincts wherein they voted; others by persons who were non-residents of the State; others by minors; others by persons disqualified by crime under the law’s of the State; others who were not legally registered; a large majority of which illegal and fraudulent votes were cast in the Winston township, and those townships adjacent thereto. That the number of votes thus received and counted against the relator, as the relator is informed and believes, greatly outnumber the majority
by which the defendant was declared by the canvassing board to have been elected.”
After the amended complaint had been filed, his ITonor, Judge Philips, presiding at that term, in the exercise of his discretion, denied the motion requiring the plaintiff to file a bill of particulars. The refusal of the Court to compel the filing of a more specific statement of the grounds of relief asked by the relator, gives rise to the first exception, and the second, third and seventh involve substantially the same point.
At October Term, 1889, before Hon. John A. Gilmer, Judge presiding, the defendant submitted the following motion, in writing:
“The defendant moves for specifications to be furnished by the plaintiff, to include the following points:
“1. The names of alleged illegal voters relied upon by plaintiff to reduce the defendant’s majority.
“ 2. The precincts in which such alleged illegal votes were cast.
“ 8. The specific act relied on by the plaintiff in each instance.”
Thereupon, his Honor made the following order:
“That the parties furnish to each other bills of particulars, giving the following notices:
“1. The number of illegal votes cast, and for whom cast.
“2. The grounds of illegality of each respective class of illegal votes.
“ 3. AVhen and where polled.”
The defendant excepted to the foregoing order because it did not furnish the full relief demanded. [Error and Exception No. 2.]
On the 25th day of November, 1889, the defendant served upon the plaintiff the following notice of motion:
“To the plaintiff:
Take notice, that at the next special or regular term of said Superior Court to be held in said county,
the defendant will move the Court to require the plaintiff to further amend the complaint, as follows:
“1. To allege, specifically and particularly, the ground of complaint against the validity of the election mentioned in the complaint, and against each voter.
“2. To state, particularly, the names and number of persons who, it is alleged, have been counted as voters, and who ought not to have been so counted.
“3. The specific act relied on by the plaintiff in each case, and the name of each voter to be attached, and the precinct in which he voted.
“Such motion will be made unless the plaintiff so amends the complaint and files a copy in the office of the Clerk of said Court, or a copy thereof be served upon the defendant, within twenty days after the service of this notice; or, unless the information required by such amendments be furnished to the defendant, in writing, within said twenty days.”
A special term of the Superior Court of Forsyth County was appointed by ITou. Daniel G. Fowle, Governor, to be held on the 6th day of January, 1890.
This case was called on Wednesday, the 8th day of January, during the said special term; whereupon, the defendant, pursuant to the last-named notice, moved the Court that the plaintiff be required to amend the complaint in accordance with the demand in said notice contained.
The motion of defendant was denied in the following terms:
“The Court having declined to grant defendant’s motion for an order to amend the complaint, the defendant prayed an appeal and asked that the Court stay the trial until said appeal be heard. Declined by the Court. Exception by defendant.” [Error and exception.]
The general provision of
The Gude
(§ 259) is, that “ the Court may, in all cases, order a bill of particulars of the
claim of either party to be furnished.” When a complaint contains a statement of facts that constitutes a cause of action, according to the established principles of law, the responsibility rests upon the trial judge, in the exercise of a sound discretion, to determine whether more specific and detailed statements of facts, when demanded by either of the parties to the action, should be required to prevent surpiise or prohibited to avoid confusion and prolixity in the trial.
Election Cases,
65 Penn. State Rep., p. 35;
Tilton
v.
Beecher,
59 N. Y., 183. When, therefore, the relator alleged in his complaint that a sufficient number of illegal votes had been cast for the incumbent in Forsyth County, and counted for him iu the computation upon which his
prima facie
night to the office depended, to change the result if the illegal voters had been denied the privih ge of exercising the elective franchise, his statement, if proven, would have established his right to the judgment demanded.
Yearby
v.
Snow,
107 Penn. St., 183;
State
v.
Mason,
14 La. Ann., 505;
Halstead
v.
Roden,
27 W. Va., 806. The corrective power of the presiding Judge to set aside a verdict for surprise., would have given the defendant additional security if it had actually appeared that he was misled in making his preparation to meet the testimony offered for the relator. We think that when Judge Gilmer required the relator to give the aggregate number of illegal votes alleged to have been cast for the defendant, the grounds upon which the charges of illegality were based as to each class, and when the votes wore polled, the defendant could not claim, as of right, a fuller and more definite specification of what the relator expected to prove. Brightley’s L. C. E , p. 334;
Wheat
v.
Roysdale,
27 Indiana, 201;
ibid,
162.
In trying the title to an office which involves the preservation of the purity of elections and the protection of the popular right of suffrage, public policy and intrinsic justice alike forbid that a Judge, vested with important discretion
ary powers, should exercise them in such manner as to permit so grave a question to degenerate into a technical contest as to the correct spelling of the name of an obscure tramp, with a convenient supply of
alias
surnames, or to allow an incumbent to enjoy the fruits of his fraudulent practices, because a relator could not induce an unwilling witness to disclose the true name of an individual who liad been one of the instruments used in its perpetration, until the information could be extracted from him on his examination under oath. It is sufficient, where there are no restrictive statutes changing the general principle, that the contestant for an office should notify the contestee in his complaint of the nature of the objections made to the validity of the election, and it then rests with the latter to show the Court, on a motion to require more definite information, that he cannot prepare his defence without incurring unnec essary expense, or at all, if certain specifications of the contestant’s ground should not be made.
Shields
v.
Howard,
16 Ohio St., 184;
Griffin
v.
Wall,
32 Ala., 150:
Hadley
v.
Gutridge.
58 Indiana, 302;
O'Gormon
v. Richter, 31 Minn., 25. We fail to find the rigid rule, that a contestant of an election in a notice on a pleading should be required to give the contestee the name of every alleged illegal voter, as to whom he proposes to offer proof, approved in any of the States, and it seems now to be enforced only in obedience to the letter of a statute requiring it in some States, as in Missouri.
Kreiiz
v.
Behnesmeyer,
25 Ill., 141. The question involved in the decision of
Rigsbee
v.
Durham,
99 N. C., 341, was very different from that presented in this case. There the plaintiff alleged in general terms that a majority of the qualified voters did not vote for the school, and stated as a reason that the defendant Commissioners had improperly stricken from the registration books the names of one hundred and eighty voters, and if those names were restored the number cast in favor of the school would not constitute a majority of the
whole registration list. Evidence was heard upon an issue framed as to the legality of striking off said names (see p. 345), and the plaintiff submitted to judgment of nonsuit, because the Court held that the testimony offered did not tend to show that any persons whose names were stricken off were legal voters. The judgment below was sustained in this Court. It appears, therefore, that the Judge in that case allowed an issue to be submitted upon a much more vague and indefinite statement than we have in the case before us.
The test laid down in
Skerrili’s
case (2 Pars. Pa., 509) was, whether the facts set forth are such that, if true, it would be the duty of the Court to vacate the election or declare another person than the one returned to have been duly elected. McCrary on Elec., §402. But it seems that the rule was relaxed by the Supreme Court of that State in later cases.
Gibbons
v.
Shepard, supra.
The Code
(§§1722 to 1730, both inclusive) prescribes the mode of selecting and drawing and the qualifications of jurors. Special provision is made in section 1731 for the drawing of jurors for special terms by the Commissioners. But the Sheriff is not required to act in any case except where the Commissioners neglect to draw the jury, and then the duty devolves (under § 1732) upon him, the clerk of the Board of Commissioners and two Justices of the Peace. A special term of the Court had been called when this case had been at issue for several terms, and perhaps with the trial of it particularly in view'. We find the Sheriff officiously taking charge of the drawing for that term, and receiving the scrolls as they were drawn by a boy, calling the name without submitting more than two or three to the inspection of any other person, and passing them into a locked box. It w’as the duty of the Commissioners to supervise the taking out of the scrolls and depositing them in the other box. While his Honor did not find, and had no means of knowing, that
there was actual fraud on the part of the defendant, it is plain that, by his improper interference with the duties of others, he bad the opportunity and the temptation to perpetrate a fraud upon the relator with but the remotest chance of detection. The fact that one name that ought to have been in box No. 2 was again found in No. 1 strongly suggests some irregularity or tampering with the names by some one. Challenges to the array are exceptions to the whole panel, and are generally founded on a charge of partiality or some default of the Sheriff or other officer iyho summoned them.
State
v.
Murph,
Winston (N. C), 129; 3 Blackst. Com., 359; Abbot’s Law Dictionary (challenge). The action of his Honor was founded upon the idea, not that there was, but that there might have been,fraud on the part of the defendant, and that the opportunity was afforded him by officiously intermeddling, when a man who had a proper sense of propriety and wished to avoid the appearance of evil would have refused, if requested, to take any part in the drawing.
. When the array had been set aside, the defendant moved the Court to have another jury drawn, under the provisions of section 1732, but, so soon as they were drawn, challenged the array, and the Court set it aside also on his motion. The Judge then appointed one S., under the provisions of chapter 441, Laws of 1889, which authorizes the appointment of some suitable person by the Judge to summon a jury from the by-slanders when the Sheriff is a party or has an indirect interest in the action to be tried. The Legislature has thus given its sanction to the idea that seemed to have operated upon the Judge’s mind in first discharging the whole panel.
But it is insisted that the summoning of jurors
de circum-btantibus
is a mode of supplementing a jury insufficient in numbers to discharge the businesss, but that a Court has no power, when all summoned as regular jurors under any
other provision of the law have been discharged, to create the whole panel by an order for a special venire, unless some statute authorizes that course to be pursued. The direct provisions of the various statutes had been resorted to in vain to procure a jury of good and lawful men to try this came. Blackstone, in his Commentaries (Vol. 3, p. 364), says: “If, by means of challenges or other cause, a sufficient number of unexceptionable jurors doth not appear at the trial, either party may pray a tales. A tales is a supply of such men as are summoned on the first panel in order to make up the deficiency.” This rule was founded upon a construction given by the Courts to the old English statutes in reference to a tales
de circumstantilms.
But our
Code,
af-er giving in detail the methods of drawing jurors, provides, in section 1733, in order “that there mav not be a defect of jurors, the sheriff shall, by order of the Court, summon from day to day of the by-standers, other jurors, being freeholders within the county where the Court is held', to serve on the petit jury, and on any day the Court may discharge those who have served the preceding day,” &c. If there is not an inherent power in a Court, under the common law, to provide for the summoning of a venire in order to avoid a failure to administer the law where ^the officers, by their dereliction of duty, have failed to select a jury, or by their conduct have made it apparent that there -was, or possibly that there might have been, fraud in the selection of the panel returned, the section of
The Code
last cited (1733) was evidently intended to give the Court, by necessary implication, the power to 'meet any such emergency, by requiring the Sheriff (for whom the act of 1889 allows the Court, in cases like this, to appoint a substiiute) to summon freeholders of the county. Perhaps a different rule-might prevail were a judge, through mere caprice, or upon insufficient grounds, to discharge the whole panel before ordering the summoning of tales jurors. Thompson
&
Merriam on
Juries, § 81. But here the first panel was set aside for reasons that we hold sufficient, and the second, on motion of the party who seeks to take advantage of the allowance of his own motion, to adjourn the Court and hold the office of which he is the incumbent. The suggestion that the act of 1889 was passed after this action was brought, and that it ■would be unconstitutional to resort to its provisions in procuring a jury in the trial of pre-existing suits is not supported by reason or authority. The Legislature have the right to alter the remedy, provided it is not destroyed or impaired. The evident object in passing the act of 1889 was to prevent possible fraud, on the part of a Sheriff, in the selection of jurors to try an action to whicli he is a party, or in which he has an interest.
The qualification of an elector under our Constitution depends upon the questions -whether he was born in the United States or has been naturalized, is twenty-one years old, has resided in the State twelve months, and in the county in which he proposes to vote ninety days, and shall have registered in the township or voting precinct in which he proposes to vote, according to law. Constitution, Art. 6, sections 1 and 2.
The person must have come into the State a year before the election, or have been domiciled within it for twelve months after forming the purpose to remain, in order to constitute him a resident, and the same intent must be concurrent with the actual occupation of a domicile in the county in order to entitle him to the rights of an elector within its limits. The qualification of one who has a domicile in the State, except where the law makes certain acts conclusive evidence in determining where it is, must often depend solely upon the intent which is known only to him, or upon his age, which often cannot be actually ascertained except from family records, not accessible to others, or from his statements. The lives and fortunes of men are con
stantly made to depend upon their declarations, used as evidence of the existence of malice or of fraud, as motives controlling their conduct, and we see no sufficient reason why the declarations of a person and such circumstantial evidence as tends to show his intent in so far as it is material in determining whether he is a qualified voter, should not be heard in the adjudication of his rights as an elector, or in passing upon an issue which involves the question whether he was a qualified voter. The declarations of a voter as to his qualifications, generally, if made at the time of voting, are competent as a part of the
res geslx,
and if not contemporaneous, but made previously, are admissible, if such declarations are in disparagement of his right as an elector, because they are against his interest, and he is considered as represented by the party for whom his suffrage was cast. Taylor, in his Work on Evidence (vol. 1, sec. 686), says: “On this ground (because the declarant, though not a party, is interested in the subject-matter of the suit) it has been repeatedly held on the trial of election petitions that the declarations of voters against their own votes, whether made before or after the votes were given, and even though invalidating their own votes on the ground of their having received bribes, are admissible in evidence, for in a scrutiny each case is considered a separate cause, in which the supporter of the vote- under discussion and the voter are parties on one side, and the opposers of the vote are the parties on the other.”
The rule as stated generally and, as we think, correctly, by the Courts in this country, is, that after first showing that a person voted against a contestant, or offering testimony tending to show that he so voted, he is considered a party in interest as against the latter, and any declaration show--ing his want of qualification to vote is admissible, like those of a party made against his own interest. But it is held by most of the Courts in the United States that such declara
tions, when made some time after the vote has been cast, are not competent.
Beardstown
v.
Virginia,
76 Ill., 34;
ibid,
81 Ill., 541; Abbot’s Trial Ev., p. 750;
People
v.
Pearse,
27 N. Y., 45; Am. Dec. p. 268
d seq.,
notes; Paine on Elec., §773;
French
v.
Lighly,
9 Ind., 478.
The eighth exception show’s that the Judge below was guided by the principles we have announced. It was as follows:
“The plaintiff proved by a witness that Bethel Smith voted for the defendant at the election in November, 1888. Plaintiff then proved the declarations and acls of Bethel Smith, tending to prove that his vote was illegal, and that he was not a duly qualified voter, such acts and declarations being made at and before the time of voting. Objected to by the defendant. The Court overruled the objection and stated that it would admit the declarations of an alleged ilhgal voter made at the time, or before voting, but that the plain-, tiff must prove, by other legal evidence, that such voter voted for the defendant, and the Court would exclude any declarations offered by the plaintiff made by a voter after the election. Exception by defendant. [Error and exception No. 7.]
The ninth and tenth exceptions are substantially the same as the eighth. Counsel, in discussing these exceptions, frequently referred to the competency of declarations as to intent, bearing upon the question of domicile. Declarations accompanying and explaining any act tending to throw light upon the question where the domicile of the person making it was, and what his intent as to residence at a particular time when itwas drawn in question, are admissible as explanatory of the act, and it is generally conceded now, that ■where such declarations come within the rule already stated, as invalidating the right of an elector who makes them, to vote, they are admissible, even if not contemporaneous with, and explanatory of, the act of voting, but made previously.
2 Whar. Ev., § 93S; Jacob’s Law of Domicile, §451; 1 Green - leaf Ev., § 108 and notes
(a)
and (c); 1 Wharton’s Ev., §§ 258 to 268; Brightly Elec., p. 118; Abbott’s L. Ev., p. 107, and notes.
An honest elector who has observed the law enjoys the privilege, which is entirely a personal one, of refusing to disclose, even under oath as a witness, for whom he voted. This rule grows out of the secret ballot system, generally adopted in this country for the protection of the voter and the preservation of purity and independence in the exercise of this most important franchise. If an illegal voter can claim the privilege at all, it is because he finds shelter under the very different principle that he cannot be compelled to criminate himself. As between contestants for office, however, the testimony of the elector, if pertinent and relevant,, is always admissible. Neither contestant nor contestee are-called upon to contend for the rights of a witness who does not demand protection, and, if compelled to testify against his will, it'does not .follow that testimony, competent without objection on his part, should not go to the jury for what it may be worth.
People
v.
Pearse, supra;
McCrary on Elec., 457, 458, 459. It does not appear, in fact, that the witness Winchester made any objection whatever to answering 'the question. We are not to be understood as disapproving of the ruling of the Judge upon the abstract question. It seems there are good reasons for sustaining the rule that the Judge who tries a case may, in the exercise of his discretion, determine certainly, as between contestant and con-testee, if there is any evidence at all, how much testimony, tending to show the illegality of a particular vote, is sufficient as a foundation for compelling the voter to tell for whom he voted. The Judge passes upon the preliminary evidence to.show loss of papers or establish a conspiracy before admitting proof of contents in. the one case, and declara--
tions of alleged conspirators in the other, and his decision is not reviewable in the appellate Court.
Where it does not appear from the direct testimony of the voter, or any other person, for what candidate he voted, there is no reason why circumstantial evidence should not be held competent as tending to establish the fact, leaving the Court to pass upon its sufficienc^y at any stage of its development as a foundation for compelling him to testify, and allowing the jury to determine, upon all the evidence, in whose column of voters he should be counted. The fact that a certain person was engaged in handing out tickets for the defendant Teague, and for no other person, and that he gave tickets to one Wicker and “voted him,” is competent, and tends to show for whom Wicker voted. The Courts would not be capable of passing upon the relevancy of such circumstantial testimony, when offered, if they did not take notice of the not very commendable practice of supplying voters with tickets and leading them to the polls, which the witness described as “voting him.” The guidance of reason and common sense must be ignored, as a basis of the rules of evidence, if Lowery’s conduct were not held to be circumstantial testimony tending to show how Wicker voted. McCrary on Elec., § 458; Paine on Elec., § 768; 6 Am. and JEng. Ency. of Law, p. 430, and notes.
It was competent to show that a man who voted in Betha-' nia township in Forsyth County, under the name of Ed. Conrad, had been a resident of Winston in the spring before the election, had been indicted under the name of Ed. Jones, and had been convicted and sentenced to imprisonment for ninety days; that he had escaped jail, and had not lived in Bethania township for two or three years before the election, but had lived in Winston township for that length of time.
The identity of the man being established, the record of ■his indictment and conviction was admissible, not to disqualify him for crime, but to prove the fraudulent voting.
We think that a witness is competent to testify to a fact of the truth of which he says that he feels “reasonably certain.” That was the best impression of an eye-witness, and it was not necessary that his recollection should be so vivid as to exclude all doubt. 1 Greenleaf Ev., 440.
Exceptions 15 and 16.
— Exceptions numbered fifteen and sixteen are stated in the record as follows:
The defendant next proceeded to prove by Robert Hall and John Watkins, and also by fifty other witnesses, that they were present at the election at Winston precinct, and were duly registered; that they were in the line of voters and tendered ballots with the name of Milton E. Teague thereon for Sheriff, to the judges of election; that these votes were challenged by challengers at the polls; that the Chief of Police Maroney, when they were challenged, told them to go and get their witnesses and return at 2 o’clock, the time appointed to hear challenges; that said Maroney was in charge of the dispositions to preserve order, by authority of all the judges of election; that- said votersreturned at 2 o’clock, but, owing to the large number of voters, said voters had no opportunity during the day to have their challenges tried, and were thereby prevented from casting their votes and were left in the line when the polls closed.
The Court stated that it would exclude testimony as to how the voter, or witness, offered to vote, unless they actually voted. Defendant excepted. [Error and exception, No. 15.]
The defendant then stated, under the ruling of the Court, that he would not actually offer such testimony, but it is considered by the Court as offered. The defendant excepted to the ruling. [Error and exception, No. 16.]
Judge Cooley says (Const. Lim., marg., p. 620 and 621): “So it is held that an exclusion of legal votes — not fraudulently, but through error in judgment — will not defeat
an election, notwithstanding the error in such case is one which there was no mode of correcting, even by the aid of the Courts, since it cannot be known with certainty after-wards how the excluded electors would have voted, and it would obviously be dangerous to receive and rely upon their subsequent statements as to their intentions, after it is ascertained precisely what effect their votes would have upon the result.”
Hart
v. Harney, 19 Howard (N Y.) Pr. Rep., 252;
Webster
v.
Byrnes,
34 Cal., 273;
State
v.
Judge,
13 Ala., 805;
Krietz
v.
Behrensmeyer,
125 Ill., 141. The law, as stated by Judge Cooley, seems to be in accord with the decisions of the American Courts. Some of our legislative bodies, possibly in the heat of partisan excitement, have acted upon a different principle. We are the better satisfied as to the propriety and justice of applying the rule in this case from a review of the other testimony, as it appears in the following extract taken from the case on appeal.
Prior to the introduction of Robert Hall and John Watkins, the defendant had introduced H. X. .Dwire, who testified as follows:
That he and J. S. White were the Republican judges of election at the Winston box, and C. A.-Hall and B. J. Shepherd were the Democratic judges; that the polls were opened promptly at 7 o’clock in the morning and voting immediately began; that the votes were received and deposited as rapidly as possible from that time until sunset, without intermission for dinner; that for an hour or two in the morning they tried each challenge as it was made by the respective sides; that the judges, upon consultation, unanimously decided that it was better to stand aside the challenged voters, and notified them to return at 2 o’clock with their witnesses, rather than to delay the wdrole line to send for witnesses; that under their direction the chief of police instructed the challenged voters, when challenged, to pass out and return with their witnesses, as aforesaid; that it was apparent, from the largely
increased registration, unless this was done, that a large number, of the qualified voters would not have time to vote, and this was done solely to expedite the voting, and as soon as the challenged voters returned with their witnesses their cases were heard as. rapidly as possible, and that there were a number of voters in line when the polls closed, and that there were 1,206 votes cast in the Winston precinct, where all this occurred.
The defendant requested the Judge to instruct the jury that there was not sufficient testimony to justify them in finding that certain persons mentioned in the prayer were illegal voters. The charge of the Court upon this point was as follows:
“ The request is made by the defendant that the Court charge you that there is no evidence, or not sufficient evidence, to warrant you in deducting from Teague’s column the votes of Thomas Hanes, Frank Fowler, Thomas Lee, George Foy, N. L Young, Ed. Davis, Charles Yokely, Creed Hairston, James Brown, Bob Moore and William Holmes.
“ Where there is no evidence tending to prove an issue, it is generally the duty of the Court so to declare; but a separate issue has not been framed or submitted as to.each vote. The evidence as to each vote, is simply so much evidence bearing upon the only two issues submitted to you. The plaintiff insists that there is evidence to show said votes illegal. The Court declines to charge you that there is, or is not, evidence showing the illegality of the above named votes. Your combined recollections are better than the Court’s. You have taken, the Court is happy to observe, very copious notes of the testimony, and the Court leaves it to you to determine whether there is any evidence, and, if so, whether it is sufficient to convince you, by a clear preponderance, that the above named votes are illegal, bearing in mind all the rules of law laid down by the Court.”
The refusal to give the instruction asked, and the substitution of the foregoing, were assigned as error in the twenty-second and thirty-third exceptions.
The testimony that the voter Hanes got his tickets at a table where “Teague tickets” only were distributed, and from the known agent of the defendant Teague, and “ came down the line within the ropes and voted,” was sufficient to be submitted to the jury as evidence that he voted for the defendant. The reasons and authorities upon which we reach this conclusion have already been given in the discussion of the exception growing out of the testimony of Winchester.
Thomas Lee, another of the eleven mentioned in the prayer for instruction, told John G. Young, the registrar, when first examined, that he was born in October, 1868, and was, therefore, only twenty years old. It is true that a person unknown to the registrar,- came back with Lee and swore that he was twenty-one years old. We think that his statement as to the time of his birth was just such a declaration, as we have already held in this case, to be admissible as to age Bob Moore and William Holmes, if the testimony of the witnesses as to their respective declarations is to be believed, were residents, the one of Stokes and the other of Rowan County.
The testimony of N. L. Young and that of Giles Bason, are conflicting as to the time when the former came to Winston. According to his own testimony he had no settled home from the time he came from South Carolina in 1885, till his wife died in South Carolina in January, 1887. He testifies that he came to Winston to live in January, 1887, and also, to what is inconsistent with that statement, that he came to Winston on a visit in the summer of 1887, when the other witness says he first removed to that place in the summer of 1888, after electioneering commenced. If Young, being a resident of South Carolina, came to North Caro
lina and “pastured around” (to use his own expression), revisiting his old home occasionally, and having, as described, no “ settled home,” which we construe to mean no fixed purpose of remaining at any place to which he went till he “came to Winston to live”; then until that time he was not a resident of any county in North Carolina, nor a qualified voter, until he liad remained within the State twelve months after coming
animo manendi.
Having instructed the jury very fully, clearly and correctly as to what were the qualifications essential to confer the right of suffrage, we think that the Judge properly left the jury to determine, in view of the fact that Young had contradicted himself in a material portion of his testimony, and was also contradicted by another witness, whether he was a qualified voter under the rules laid down by him.
There was testimony tending directly to show that Ed. Davis resided in Danville, Virginia, until June, 1888, after which time he could not have acquired the right of a citizen to vote by residence in this State.
Creed Hairston’s testimony tended to show that he was a resident of Stokes County, and William Reynolds stated explicitly that Hairston lived in Stokes County. The testimony of the witnesses Charles and Bodenheimmer, if believed, would establish the fact that Charles Yokely had resided in Forsyth County only about one month before the election.
Mr. Bessent, the tax-collector in AVinston, who made it his business to look up every resident of Winston, testifies that Frank Fowler was never there till a few months before the election and never paid tax there; that the witness saw him buy a ticket for Clarksville, Virginia, on the day following the election, and that he had never been at Winston since. AVe think that this testimony was properly submitted to the jury, to determine whether the voter was qualified under the general instruction given by the Court. The jury were allowed, properly, to say whether George Foy was a resident of
Eorsytli County. He left the home of his parents in Rock-ingham, where he had certainly become a resident, every summer, to work in the tobacco factories, and left when the season was over. The fact that he stated that he considered Winston his home did not settle the question of law. The jury were at liberty to conclude, from his own statement, that he had never abandoned, at any time, the idea of returning to his father’s house when the season was over, and had never lost his right to vote in Rockingham County.
James Brown was challenged as a non-resident by Dr. Kerner, and then admitted that he came originally from Virginia, leaving his wife there, but, in order to fix his residence in North Carolina, went off and returned with a letter postmarked “Kernersville,” where he was then proposing to vote, and purporting to announce that his wife w’as dead and another person in jail, and he could come home. Dr. Kerner testified that he had practiced medicine in Kerners-ville township for forty years, and had never seen Brown till he came to the polls, and had never seen him since It is true that- another witness testified that Brown had been a resident of the township for many years, but was then working on a railroad in the eastern part of the State; but his evidence, if Dr. Kerner was believed, was in direct conflict ■with Brown’s own statement and letter. It was proper that the jury should have been left to settle the question of Brown’s eligibility 'as an elector under the law as explained to them.
It is in vain to attempt to protect any community, where there is a demand for laborers in manufacturing establishments, on railroads in process of construction, and where an increased number are needed in the fall season, when the crops are being gathered, against an influx of tramps im•ported in the excitement of a canvass for office, unless juries are allowed to consider every circumstance that tends to show fraudulent practices by which residents of other coun
ties or States, or residents of this State who have not yet acquired the elective franchise, are allowed to defeat the will •of a majority of the qualified voters, just as it is competent to admit every circumstance tending to prove or disprove the allegation that the execution of a deed was procured by" fraud. The presumption is in favor of the validity of a deed •executed with all of the forms of law, but it can be rebutted by proving fraud to the satisfaction of a jury. So, when an •elector is allowed to deposit his ballot, the burden is on one who questions its validity to show, by a preponderance of testimony, the truth of such facts or circumstances as are relied upon to establish the disqualification. Iiis Honor’s instruction was, in this respect, therefore, correct.
The charge given upon this subject was properly substituted for that asked, and upon the refusal to give which, exception nineteen is based.
The defendant does not contend that the Court could not proceed to judgment upon the issues submitted and the responses to them; nor is it insisted that the defendant has lost the opportunity, on account of the form of the issues, to present to the Court below, and on appeal for review here, any view of the law applicable to the evidence. Subject to these two objections, the form and number of the issues that arise out of the pleadings must be determined by the Judge who tries the case in the exercise of a sound discretion.
Emry
v.
Railroad,
102 N. C, 224;
McAdoo
v.
Railroad,
105 N. C , 140.
■ We think that the Judge correctly interpreted and explained the law requiring a voter to procure a certificate when he removes from one township to another. The Constitution (Art. 6, § 2) contemplated the enactment of registration laws, passed with a view to prevent fraud, and the disqualification of even
bona fide
residents or citizens who refuse or neglect to comply with reasonable requirements intended for the purpose mentioned.
We concur with the Court beiow in the construction given to the registration law — that any registration that takes place on the day of election is invalid and illegal, unless the voter becomes of age on that day, or shows the judges of election that, for any other good reason (as to which the judges of election are to determine), he has become entitled to vote.
If the registrar receives a certificate of removal outside of the township for which he is acting, administers the proper oath to the voter and enters his name on the registration book after his return home, though he did not have the said book with him, the registration is valid. His Honor did not err in instructing the jury that such was the proper construction of section 2681 of
The Code
We do not deem it necessary to discuss at length the instruction that gave rise to exception No. 31. It needs no argument, in view of the interpretation we have given to the Constitution (Art. 6, §§ 1 and 2) and the registration laws, enacted in pursuance of its provisions to prove that one whose true residence is in one township is not a qualified voter of another, where, after escaping from prison, he is hiding as a fugitive from justice.
There is abundant evidence of patience, fairness, learning and ability in the conduct of the trial and exposition of the law by the Judge below, and upon a careful review of all the exceptions to his rulings and his charge, we find no error of which the defendant can justly complain.
Judgment affirmed.