Sharp v. McIntire

• Decision Date: 29 June 1896
• Citation: 23 Colo. 99,46 P. 115
• Parties: SHARP v. McINTIRE.
• Court: Colorado Supreme Court

46 P. 115

23 Colo. 99

SHARP v. McINTIRE.

Supreme Court of Colorado

June 29, 1896

Appeal from Lincoln county court.

Action by Robert B. Sharp against Archibald McIntire, to contest an election as county commissioner. From a judgment in favor of defendant, plaintiff appeals. Reversed.

At the general election of 1895 in Lincoln county, Colo., Robert B Sharp and Archibald McIntire were rival candidates for the office of county commissioner of said county. Upon the canvass of the votes cast at such election for that office McIntire was elected by a majority of four votes, and a certificate of election issued to him. His election is contested by Sharp upon the sole ground that there were cast in Rush Creek voting precinct, No. 5, in said county, nine votes for McIntire which were illegal, by reason of the lack of the residence qualification of the voters casting the same, in this, to wit: that the true place of residence of eight of said illegal voters--Trinidad Gomez, Nazarus Gallegos, Andreas Medina, Victor Anallina, Vincent Garcia Juan Martinez, Antonio Martinez, and Francisco Quintana--was at the date of said election in the territory of New Mexico and the true residence of one Alario Medina was at the time in Costilla county, Colo. It is admitted in the pleadings that said votes were cast for McIntire. Trindad Gomez was introduced as a witness on the part of contestor. His testimony was to the effect that his home, and also that of Francisco Quintana, Nazarus Gallegos, and Antonio Martinez, was at Cerro, N. M., where their wives and families lived; that they came to Lincoln county., Colo., in the spring, to work during the summer, and at the close of their season's work returned to their homes and families, at Cerro, N. M.; that he (Gomez) had been in the habit of so coming to Colorado since 1890; that the others had also been doing the same for several years; that in 1895 he came on March 27th, to remain eight months; that when he was subpoenaed as a witness in the case he was on his way home, having received word that his wife was sick; that the other parties named had then returned to their homes, in New Mexico; that these parties did not bring their wives or families to Lincoln county. He testified that he did not know Andreas Medina, Alario Medina, or Juan Martinez. Sharp was sworn in his own behalf, and testified that he was appointed watcher and challenger at the polls in Rush Creek voting precinct, No. 5, at the election on November 5, 1895, and that he challenged the above-named parties' right to vote at such election. Upon objection by counsel for contestee, witness was not allowed to testify to the conversation he had with these parties. His counsel thereupon offered to prove by him that he (Sharp), at the time these parties appeared to cast their vote, had the following conversation with them; That when Trinidad Gomez, Francisco Quintana, and Nazarus Gallegos appeared at the polls to cast their vote, he asked each of them the following question: 'Q. Are you a married man?' That they, and each one of them, answered: 'A. Yes; I am.' That Sharp then said to them, and each one of them: 'Q. Where do you live?' That they, and each one of them, answered the said Sharp: 'A. At Cerro, New Mexico.' That said Sharp then asked them, and each one of them: 'Q. Where do your wife and family live?' And that they, and each one of them, answered said Sharp that they lived at Cerro, N.M. He also offered to show by this witness that the same conversation occurred, in the same interval before they voted, with Andreas Medina, Vincent Garcia, Juan Martinez, and Antonio Martinez, and that the conversations were identically the same, except that said voters did not state the name of the town, but limited their answers to the fact that they and their wives and children lived and resided in New Mexico. Counsel offered to show by the same witness that he had a similar conversation, under similar circumstances, with Alario Medina, who stated that his residence and the residence of his family was in the San Luis Valley, in Costilla county, Colo. Upon objection of counsel for contestee this evidence was excluded. The determination of the court below was adverse to contestor, and in favor of contestee. From this judgment, Sharp prosecutes this appeal.

Talbot & Denison, for appellant.

Kinkaid, Eddy & Hart and T. J. Edwards, for appellee.

GODDARD J. (after stating the facts).

One of the essential qualifications of a voter prescribed by our constitution and statute is that he shall reside in the state 6 months immediately preceding the election at which he offers to vote, in the county 90 days and in the ward or precinct 10 days. Section 1, art. 7, of the constitution (section 1571, Mills' Ann. St.). The merits of this controversy, therefore, depend upon the construction to be given to the residence qualification thus prescribed. It is contended by counsel for contestee that the word '...