This
was an action tried at the special term, January, 1890, of
the Forsyth superior court, Hon. GEORGE H. BROWN, Jr.
presiding, and was commenced to try the title to the office
of sheriff of Forsyth county. The election had been held on
the 6th day of November, 1888, and the defendant had been
duly declared elected, and was inducted into said office. The
relator of the plaintiff was the opposing candidate, and
claimed that illegal votes had been cast for the defendant in
sufficient numbers to nullify his election, and give title to
the relator. The defendant, on his part, alleged that numbers
of illegal votes had been cast for the relator, and that
these should be deducted from the relator's aggregate.
All this, as well as other pertinent matters, is fully and
particularly set out in the pleadings.
The
facts material to the discussion of the first, second, third
eighth, ninth, tenth, fifteenth, and sixteenth exceptions are
embodied in the opinion of the court.
The
plaintiff filed a challenge to the array of the jury drawn
for the said special term, before the jury were called and
impaneled, and in due time. Issue being joined as to the said
challenge to the array, the same was tried by the court, the
witnesses being examined before his honor, the presiding
judge; who, upon the evidence adduced, found the following
facts, the defendant offering no testimony: "That a
special term of this court "was ordered to be held for
the trial of civil business, commencing January 6, 1890, and
that such court was duly ordered prior to December 1, 1889.
That at the December (1889) meeting of the board of
commissioners of Forsyth county the board proceeded to draw
the jurors for said special term. That said jurors were drawn
in manner as follows, to-wit: The board being in regular
session, the sheriff, M. E. Teague, the defendant in this
action, brought into the commissioners' room a boy under
ten years of age, and opened box No. 1. That the boy drew out
a scroll containing a name of a juror from said box, and
handed it to the said sheriff, who read the name thereon, and
undertook to call it out. That none of the commissioners read
or saw the name on said scroll, and no one else did, except
said sheriff, who immediately put said scroll into box No. 2.
That each scroll was read and drawn in this way, without any
one seeing the name thereon, except said sheriff, until 24
jurors were drawn from box No. 1 and put in box No. 2 by said
sheriff. That there were one or two scrolls that the clerk to
the board, or some other person, assisted the sheriff to
read, but no more. That it appears that nine (9) of said
jurors were from Clemmonsville township, much the smaller
township in the county, with a voting population of from 125
to 150. That only one juror came from Winston township, which
has a voting population of 1,800, and one juror only from
South Fork township, a very large township, and none from
Kernersville, another large township. That the chairman of
the board and the clerk wrote down such names upon the list
of jurors as Sheriff Teague called out, and the list was put
in the hands of said sheriff, who summoned or caused said
jurors to be summoned. That Clemmonsville township, up to
March, 1889, was a part of Davidson county, and by act of
assembly was made a part of Forsyth county. That at September
(1889) meeting the commissioners of Forsyth caused the names
of 57 persons from said township to be placed in the
jury-box. That they selected said persons from the tax-lists
of 1889, and which went into the sheriff's hands in
September, 1889, and also from a list furnished them by the
register of deeds of Davidson county; and also called in one
Womack, who resided in Clemmonsville township, to assist
them. That at the time of the drawing of the jurors at said
December meeting it was well known by said Teague, and by the
people of the county generally, that the cause now on trial
would be tried during the first week of the special term, and
that the said special term was called largely with the view
to afford time to try this cause. It also appeared that the
commissioners, for more than five past years, have drawn the
scrolls from box No.1, and put them in No. 2, without
exhausting No. 1, and that during the past five years the
scrolls in No. 2 have not been returned to No. 1. That W. N
Best was drawn as regular juror from box No. 1 for October
term, 1885, and that he is now also drawn as a juror again
out of box No. 1 for this term, and the same as to one other
of the present jurors, who was duly drawn before for October
term, 1887. That the plaintiff, Boyer, was sheriff for four
years preceding the defendant, and that he used to be present
generally with the commissioners when jurors were drawn, and
sometimes read out the names on the scrolls, and sometimes a
commissioner did it, but plaintiff stated that he then had no
suits in court or cases on docket. This plaintiff also
testified that he was present a short while, casually, at
September (1889) meeting of the board of commissioners, when
they were revising the jury-lists, and the chairman asked his
opinion of one or two men, and he gave it. That he took no
part in the proceedings, and was there only a few minutes. It
further appears that at September meeting, 1889, (since
passage of the act of 1889,) the board of commissioners of
Forsyth county proceeded to revise generally the entire jury
lists and boxes, and took out many names, and put in others
and that they had the tax-lists, levied in June, 1889, before
them, and revised the lists from them, and that two persons
residents of Davidson county, were placed in said boxes. The
court finds the above facts from the testimony offered by the
plaintiff on his motion to challenge and set aside the array.
The defendant offered no evidence. In sustaining
plaintiff's challenge to the array, upon the facts herein
before stated, the presiding judge stated that he did not
find an actual, intentional fraud, but it was very irregular
and gross negligence upon the part of the board of
commissioners to permit the defendant, Teague, to draw this
jury for this special term called principally to try this
cause, and to solely read and call out the names on the
scrolls, no one else examining or verifying the same, as set
forth in the evidence, and that he could not give judicial
sanction to so grave an irregularity. The court sustained the
challenge, and set aside the array, to all of which the
defendant, in due time, objected and excepted."
The
following is a statement by the court: "The court,
having set aside the array of jurors upon challenge of the
plaintiff, and having made an order concerning the same, the
defendant appeals from said order, and asks a stay of the
trial until said appeal is heard. Declined by the court.
Exception by defendant."
The
court, having set aside the array, as above recited, directed
that a jury be drawn in accordance with section 1732 of the
Code. The plaintiff's counsel insisted that the talesmen
should be called from the by-standers, the defendant
contending that the jurors should be drawn under section 1732
of the Code; but, the plaintiff acquiescing, the drawing took
place in the presence of the court. The panel so drawn was
returned, and thereupon defendant challenged the array, but
not because it had been drawn under section 1732 of the Code.
Testimony having been taken, his honor sustained the
challenge, and the second panel was set aside, and the
plaintiff did not except. The court thereupon appointed
Samuel H. Smith (in accordance with Act 1889, c. 441,
ratified March 11th) to summon jurors from the by-standers,
which was done, the jury being entirely made up from the
by-standers so summoned by the said Smith; and to this the
defendant objected and excepted.
The
testimony bearing upon the exceptions from the eighth to the
sixteenth, both inclusive, is sufficiently set forth in the
opinion of the court.
The
defendant's prayer for instructions was as follows:
"(1)
A residence of twelve months in the state, and ninety days in
the county, entitles a citizen to vote.
"(2)
If it appears that the voter whose ballot is attacked for
non-residence has resided in the state twelve months, and in
the county ninety days, the presumption is raised that he is
entitled to register and vote, and it will take affirmative
evidence to remove the presumption.
"(3)
The fact that the voter goes from the county in which he has
voted, immediately after the election, does not raise the
presumption that he has voted illegally, nor that he is a
non-resident.
"(4)
The fact that a voter removes into a county, if such removal
is more than ninety days before the election, and that he
goes into another county or state immediately after the
election, even if to change his residence, does not destroy
the presumption that he has voted legally, provided he was a
resident of the state for twelve months before the election.
"(5)
Temporary absence from a county, even beyond the confines of
the state, for the purposes of business or pleasure, does not
take from a citizen his domicile and the right to vote.
"(6)
If a voter is challenged for any cause, and the challenge is
tried by the judges of election, and the decision is in his
favor, it strengthens the presumption that he is a legal
voter, which must be removed by evidence.
"(7)
The residence or domicile of a voter is determined by his
intention.
"(8)
The fact that a citizen registers and votes is evidence of
his intention as to residence.
"(9)
If a voter has lived twelve months in the state and ninety
days in the county, and does not intend to become a citizen
of the county where he...
