Norwood v. Kenfield

By the Court, Sanderson, J. : If the statement of Macomher as to his place of residence made at the North Precinct in Sonora, where he did not vote, was competent evidence for the contestant, his statement made at the South Precinct, where he did vote, must by parity of reason be competent evidence for the -respondent. If either can be regarded as a part of the res gestee, it must be the latter, for the latter accompanied the act of voting, and the former did not. Whether either was competent evidence or not, it is unnecessary to decide, for the contestant cannot be allowed to say that the latter is incompetent, and in the same brqath claim the benefit of the former. If the latter proved nothing, the former did as little, and the contestant wholly failed to establish the alleged illegality of Macomber’s vote. If either proved anything, they each neutralized the other and still left Macomber’s vote unimpeached. But were those statements or either of them competent evidence for either party? The question is at least doubtful. Counsel have not discussed it and we forbear to express an opinion, but suggest that it merits consideration if a new trial takes place. II. If the Court erred in allowing the respondent to ask the witness Moore what Lot Cannel said when he left Tuolumne County about returning or not returning, it is clear that the answer did not prejudice the contestant’s case, for so far as it proves anything it is in his favor. The remark made by Cannel at least implies an intention to return, and it is consistent with the testimony of Cannel himself, and does not tend to contradict that witness. But had it done so it would have been competent evidence. A party calling a witness is not precluded from proving the truth of any particular fact by any other competent evidence in direct contradiction to what such witness may have testified; and this not only where it appears that the witness was innocently mistaken, but even where the evidence may collaterally have the effect of showing that he was generally unworthy of belief. This is one of the [399] exeptions to the general rule that a party cannot impeach his own witness. (1 Greenleaf on Ev., Sec. 443.) III. The Court erred in receiving evidence as to the alleged illegality of Ole Johnson’s vote for the reason that his name was not on the list of alleged illegal voters furnished to the contestant by the respondent. It is true that section fifty-seven of the Act regulating elections does not in words require the respondent to furnish the contestant with a list of voters, who, as he alleges, voted illegally for the contestant, but as to such vote the respondent really becomes a counter contestant and every reason why the contestant should furnish a list of the votes upon which he relies as illegal applies with equal force to the respondent when he becomes the actor. We think it was the intention of the Legislature to require each party to give the other notice of such votes as he intends to assail as illegal. Any other reading of the statute would result in a distinction where there ought to be none, and give to one of the parties an undue advantage over the other. This view is sustained by the case of Griffin v. Wall, 32 Ala. 149, where a statute in terms the same as ours was construed as the latter is construed by us. Counsel for the respondent claims that this error, if so found, is without prejudice to the contestant for the reason that it does not appear from the record that Johnson’s vote, if allowed to the contestant,, would change the result of the election, It is true that the record fails to show whether the Court took Johnson’s vote from the contestant or not; and it also fails to show what the Court did with Macomber’s and Cannel’s vote, or how these three votes, under any distribution of them, would affect the result. Assuming that the Court below counted Macomber’s vote for the respondent and took from the contestant the votes of Gann el and Johnson, it is still impossible to say from the record whether such action changed the result of the election as declared by the Board of Canvassers, for the number of votes which the parties received is nowhere stated in the pleadings; and the finding, instead of specifying the number of legal votes received by each party, [400] merely gives in general terms the greater number to the respondent. But where the appellant shows error the presumption is that he has been prejudiced by it. If it be claimed by the respondent that he has not, it is incumbent upon him to see that the record discloses the facts upon which such claim is founded. There being error and nothing to show that it did not prejudice the contestant’s case, we are bound to presume that it did. (Carpentier v. Williamson, 25 Cal. 167.) The objections interposed by the respondent to the citation . and statement of the causes of contest were properly overruled. No particular form of citation is prescribed by the statute, and to hold that the one issued in this case was fatally defective would be to stick in the bark. Nor is it necessary that the statement should contain a prayer for relief. The statute dictates the course to be pursued if the causes of contest are found to be true, and the Court owes it to the public to pursue that course, whether the contestant formally demands it or not. The parties to a proceeding of this character are not the only persons interested in the result. The people are also interested, and have a right to insist that the office shall be given to the person upon whom they have bestowed it. (Searcy v. Grow, 15 Cal. 117.) Judgment reversed, and a new trial ordered.