Commonwealth v. Ryan

Citation32 N.E. 349,157 Mass. 403
PartiesCOMMONWEALTH v. RYAN.
Decision Date25 November 1892
CourtUnited States State Supreme Judicial Court of Massachusetts

OPINION TEXT STARTS HERE

Exceptions from superior court, Worcester county; ROBERT J. BISHOP, Judge.

Michael J. Ryan was convicted under Acts 1890, c. 423, § 131, of altering a ballot cast for governor at a state election, and excepts. Exceptions overruled.

This was an indictment for altering a ballot which had been cast in precinct 2 of the town of Gardner, at the annual state election of 1891. The ballots were divided into piles of 50 each by the wardens of the precinct, and one package given to the defendant and one Roark, as inspectors, to count at one of the tables; and another package to one Upham and one Jillson, the inspectors, to count at the other table. The latter two inspectors, being Republicans, were supervised by one Smith, a warden, who was a Democrat, and the defendant and Roark, being Democrats, were supervised by one Howe, who was the clerk of the precinct; and the other warden, Fleurant, was engaged in work upon the tally sheets. The government first called C.W. Bush, the town clerk of the town of Gardner, and by him verified as the ballots of that precinct cast at the election of November 3d a quantity of ballots in a paper bag which had been sealed by the precinct clerk, and left with him, Bush, as town clerk, and which had on the day before been opened in the presence of Bush by the aforesaid Howe, the precinct clerk, at the request and in the presence of the district attorney or his assistant, the said ballots having been produced by said Bush before the grand jury, in compliance with a mandatory order of a justice of the superior court for that purpose, and having been retained in the custody of the district attorney since such production, and being in his possession at the time of the trial. Samuel W. Howe, the clerk of the precinct, was then called to the stand, and was requested to identify a ballot, in regard to which he testified, and produced from a bunch of ballots in the aforesaid paper bag the ballot in question, identifying it as having been marked by him, in connection with his history of the transaction, but testifiedto before the ballot was offered or produced by him. The ballot was offered. The defendant objected on the ground that the ballots should have been destroyed by the town clerk, according to law, 60 days after they were cast at said election; and offered to show that upon the application of the district attorney to a justice of the superior court just before the expiration of the said 60 days, asking an injunction against the destruction of the said ballots by the town clerk on the ground that the government desired to use them as evidence before the grand jury and on this indictment, should it be found, said justice had issued an injunction to that effect; and defendant claimed that in consequence of that injunction the ballot law had been violated by the clerk of the town of Gardner, and that the order of the court upon the application of the district attorney was null and void, and could not work the nullification of the statute, and that the evidence offered had therefore been brought into court by unlawful and unwarrantable means by the prosecution, and could not be used. The presiding justice overruled the defendant's objection, and ruled that the ballot was still admissible, whereupon said ballot was admitted, and the defendant excepted. The testimony of the said Howe preceding and accompanying the offering of the ballot was as follows: During the count of the votes by Ryan and Roark at the table at which they were counting ballots, after the suggestion to him from an inspector at the other table, he went near to Ryan, saw him take a ballot on which the name of Charles H. Allen, the Republican candidate for governor, was checked with a cross, and all the other candidates checked thereon were Republican candidates, and place against the name of William E. Russell, the Democratic candidate for governor, a cross, and then call the vote for governor on the ballot to his coinspector as a blank, and that such ballot was checked upon the tally sheet as a blank ballot for governor. That thereupon the said Howe stepped forward, and said, “Mr. Ryan, you can't do that.” Ryan asked, “Can't do what?” That he said: “You can't mark ballots that way. You know you have no business to. They had got onto this trick over the other side some time ago, and set me to watch you. Now I've caught you.” Ryan said, “I guess not.” That he said: “Mr. Ryan, we don't want any fuss or trouble about this, but you can't mark ballots that way.” That Ryan then said, “I won't claim it, then,” turned his pencil to the rubber end, and...

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