Pedigo v. Grimes

• Decision Date: 03 November 1887
• Citation: 13 N.E. 700,113 Ind. 148
• Parties: Pedigo v. Grimes.
• Court: Indiana Supreme Court

113 Ind. 148

13 N.E. 700

Pedigo

v.Grimes.^a1

Supreme Court of Indiana.

November 3, 1887.

Appeal from circuit court, Orange county; David M. Alspaugh, Judge.Buskirk & Duncan and Robert W. Miers, for appellant. Louden & Rogers, for appellee.

Elliott, J.

The appellee, proceeding under the statute, providing for the contest of elections, filed a written statement contesting the election of the appellant to the office of auditor of Monroe county. By appeal the case went to the Monroe circuit court, and thence by change of venue to the Orange circuit court.

The court did not err in denying the appellant's request for a trial by jury. Our cases hold that a jury trial is not demandable in contested election cases, and they are supported by authority. Knox v. Fesler, 17 Ind. 254;Corey v. Lugar, 62 Ind. 60;Ewing v. Filley, 43 Pa. St. 389; Hulseman v. Rems, 41 Pa. St. 396; Ford v. Wright, 13 Minn. 518, (Gil. 480;)Williamson v. Lane, 52 Tex. 335;Wright v. Fawcett, 42 Tex. 205;Grier v. Shackleford, 3 Brev. 491;State v. Harmon, 31 Ohio St. 250;State v. Marlow, 15 Ohio St. 114;Luther v. Borden, 7 How. 1.

The witnesses introduced by the appellant, Ferler, Hooper, and Rhabb, were examined at much length upon the question of residence, and at the close of the direct examination the court said to counsel for the appellee: “You are now entitled to examine the witness on that one question of residence.” The contention of appellant is that it was error to permit a cross-examination, because one question asked by his counsel of each of the witnesses was not answered. The contention upon this point is not that there was error in not compelling an answer, but that there was error in permitting a cross-examination. We perceive no foundation for this position. If appellant elected to make the witnesses his own, and to examine them in chief as to any subject, he opened that subject to cross-examination. Louisville, etc., Co., v. Falvey, 104 Ind. 409, 3 N. E. Rep. 389, and 4 N. E. Rep. 908. As he did open on a subject, and did avail himself of the benefit of the examination in chief, he certainly cannot complain because the court did not deny a cross-examination upon that subject.

Three witnesses, Hooper, Ferler, and Rhabb, were asked on the direct examination to say for whom they voted for the office here in controversy, but the court declined to compel them to answer. It is the theory of our law that the ballot is secret, and no man who casts a lawful ballot can be compelled to disclose the names of the persons for whom he voted. Williams v. Stein, 38 Ind. 89, 10 Amer. Rep. 97; Cooley, Const. Law, 760. Where, however, the vote is illegally cast, the voter may, so our statute provides, be compelled to make disclosure. Accepting, without inquiry, this statute as valid, the question which first presents itself is whether the votes were illegally cast; and this question must, in the first instance, be decided by the trial court upon the evidence. It appears, therefore, that a question of fact was presented for the decision of the court, and where this is so, the decision will be upheld unless it is clearly erroneous. The principle that the appellate court will not disturb the finding of the trial court upon a question of fact is a familiar one, and is illustrated in a great variety of cases. Shular v. State, 105 Ind. 289, 4 N. E. Rep. 870; Lexington, etc., Co., v. Plate-Glass Co., 84 Ind. 516. We must therefore uphold the finding of the trial court on this question of fact, unless it is clearly shown to be wrong. It is presumed that the voters were not guilty of an unlawful act, and before they could be compelled to make disclosure it was incumbent on the appellant to remove this presumption. This presumption, like a prima facie case, stands until overthrown. Bates v. Picket, 5 Ind. 22;Adams v. Slate, 87 Ind. 573-575;Cleveland, etc., Co. v. Newell, 104 Ind. 264, 3 N. E. Rep. 836; Louisville, etc., Co. v. Thompson, 107 Ind. 442, 8 N. E. Rep. 18, and 9 N. E. Rep. 357. The strength of this presumption is augmented by the fact that the law is very careful to preserve inviolate the secrecy of the ballot. People v. Cicott, 16 Mich. 282.

We cannot, therefore, disturb the decision of the court unless the testimony clearly shows that the persons who were asked to state for whom they voted cast illegal votes. This the testimony does not show. Taking the view of the testimony most favorable to the appellant, the utmost that can be said of it is that the voters entered the state university at Bloomington without at the time of entering having formed a definite intention of making that place their residence, but that they did subsequently determine that it should be their residence. This gave them the right to vote, because there is no evidence that this was not their intention, formed and acted upon in good faith. We think it clear that if they had gone to Bloomington with the intention of remaining simply as students, and there was no change of intention, they would not have acquired a residence. Granby v. Amherst, 7 Mass. 1;Fry's Election Case, 71 Pa. St. 302, 10 Amer. Rep. 698; Dale v. Irwin, 78 Ill. 170;Vanderpoel v. O'Hanlon, 53 Iowa, 246, 5 N. W. Rep. 119. Where, however, the intention is formed to make the college town the place of residence, and that place is selected as the domicile, then the person who does this in good faith becomes a qualified voter. In Vanderpoel v. O'Hanlon, supra, the court said, speaking of a student: “It would probably be admitted if, when he went to Iowa City, or at any time thereafter, his intention was to make that place his home and residence when he ceased to attend the university, that such place was, and became, his place of residence, in such a sense that he would have become a legal voter in Johnson county.” Judge McCrary says: “It will be found from an examination of these authorities, and from a full consideration of the subject, that the question whether a student at college is a bona fide resident of the place where the college is located must in each case depend upon the facts. He may be a resident, and he may not be. Whether he is or not, depends upon the answers which may be given to a variety of questions, such as the following: Is he of age? Is he emancipated from his parents' control? Does he regard the place where the college is situated as his home, or has he a home elsewhere, to which he expects to go, and at which he expects to reside?” The case of Sanders v. Getchell, 76 Me. 158, 49 Amer. Rep. 606, is a strong one, for there the constitution of the state provided that “the residence of a student at any seminary of learning shall not entitle him to the right of suffrage in the town where such seminary is situate,” yet it was held that a student might acquire a residence. In the course of the opinion it was said: “It is clear enough that residing in a place merely as a student does not confer the franchise. Still, a student may obtain a voting residence, if other conditions exist sufficient to create it. Bodily residence in a place, coupled with an intention to make such a place a home, will create a domicile or residence.” It can, we conceive, make no difference that the person is a student, if he has in good faith elected to make the place where the college is located his residence, since there is no imaginable reason why a person may not be both a student at a college and a resident of the place where the college is situated. If he is at the place merely as a student, then he is not a resident; but if he has selected that place as his abode, he acquires a residence which entitles him to vote if he possess the other qualifications. It is said by appellant's counsel that, “to effect a change of domicile, there must be intention and an act united. The act of residence, and the intention of remaining.” In support of this proposition, counsel cite McCrary, Elect. 39, 40; Cooley, Const. Law, 604; 2 Kent. Comm. 431; Astley v. Capron, 89 Ind. 167;Culbertson v. Board, 52 Ind. 361;McCollem v. White, 23 Ind. 43;Maddox v. State, 32 Ind. 111. The counsel's statement doubtless is an accurate one; but here the intention and the act, as the trial court found, did unite, and we think this finding is fully sustained by the testimony before the court. It is not necessary, however, that there should be an intention to remain permanently at the chosen domicile; it is enough if it is for the time the home of the voter to the exclusion of other places. Judge Cooley says: “A person's residence is the place of his domicile, or the place where his residence is fixed, without any present intention of removing therefrom.” Cooley, Const. Lim. (5th Ed.) 754. Judge Story makes substantially the same statement of the rule. Confl. Law, § 43. In the case of Cessna v. Myers, reported and strongly approved by Judge McCrary, it was said: “A man may acquire a domicile if he be personally present in a place and elect that as his home, even if he never design to remain there always, but design, at the end of some short time, to remove and acquire another. A clergyman of the Methodist church who is settled for two years, may surely make his home for two years with his flock, although he means at the end of that period to remove and gain another.” McCrary, Elect. p. 496, § 38. This principle was applied to the case of a student of Andover college, in Putnam v. Johnson, 10 Mass. 488, where it was said: “A residence at a college or other seminary for the purpose of instruction would not confer a right to vote in the town where such an institution exists, if the student had not severed himself from his father's control, but resorted to his house as a home, and continued under his direction and management. But such residence will give a right to vote to a citizen not under pupilage, notwithstanding it may not be his expectation to remain there forever.” In this instance, the citizens, having taken up a residence in...