Elbin v. Wilson

Robinson, J., delivered the opinion of the Court. This suit was brought by the appellee, a registered voter, under the Act of 1865, chapter 174, against the appellants, as Judges of Election, to recover damages for refusing his vote. At the trial below, the appellants challenged, for cause, certain jurors, upon the ground, “ that they had formed or expressed an opinion, that the defendants, as Judges of Election, ought to have received the votes of all registered persons without further question.” Whatever may be the rule elsewhere, it is the settled law of this State that, in order to sustain a challenge for cause upon this ground, it must appear that the juror has formed and expressed an opinion in regard to the merits of the case. Edelen vs. Gough, 8 Gill, 89. The office held by the appellants as Judges of Election, was one of a judicial nature, and in the discharge of its duties, they could not be held responsible for anything more than an honest and faithful exercise of their judgment. Bernard vs. Hoffman, 18 Md., 479. The gist of the action, therefore, was, whether they had “fraudulently, wilfully or corruptly” denied the appellee his right to vote, and the mere formation or expression of opinion on the part of jurors that the Judges of Election ought to have received the votes of all registered persons without further ques143 lion, could not, in any just sense, be considered as an opinion in regard to the liability of the appellants in this action. They may have differed with the appellants as Judges of Election in regard to the manner in which they ought to have discharged their duty, without imputing to them fraudulent or corrupt motives. The appellee’s demurer was, therefore, properly sustained by the Court. We concur also with the ruling below on the second bill of exceptions. In all cases involving the fraudulent intent with which an act is done, any fact, however slight, if at all relevant to the issue, is admissible in evidence. Waters vs. Duvall, 1 Md., 474; Mayor and City Council of Balto. vs. Williams, 6 Md., 235; Feigley vs. Feigley, 7 Md., 537. It is true, the mere fact that the appellants knew the appellee to be of different politics, may not in itself have been sufficient to have justified the inference of bias or prejudice on the part of the Judges of Election, or that they had corruptly rejected the vote of the appellee, yet, in an action of this kind, we think it was an element of proof properly submitted, together with other facts, to the consideration of the jury. We find no error in excluding the evidence offered in the third bill of exceptions. The appellee had been registered as a voter in conformity with the Constitution and laws of this State, and his registration as such was evidence of his legal right to vote. Constitution 1864, Art. 1, sec. 2. Now, in an action against the appellants for corruptly depriving him of this right, they cannot, with a view to exempt them from liability, offer in evidence the declarations of the appellee made to other parties, tending to prove that he came within the disfranchising clause of the constitution of 1864. Resides, such declarations, if made, were unknown to the appellants at the time they rejected his vote, and could not, therefore, have had any influence upon their action. The fourth and fifth bill of exceptions present substantially the same question. It is an unbending rule, that a witness testifying in regard to the declarations of a party, must state [144] either the language or the substance of what was said. It would be a dangerous innovation upon the well-established rules of evidence to allow him to give the impressions which the' party’s declarations made upon the mind of the witness. In regard to the sixth bill of exceptions, it may be stated as a general rule, that public policy requires the preliminary examination before the Grand Jury, as to the guilt or innocence of a party, should be secretly conducted. The obvious reasons of the rule are, first, in order to secure the utmost freedom of deliberation on the part of the Grand Jury, and freedom of disclosure on the part of informers; secondly, to prevent the escape of the party should he know that proceedings were in train against him; and thirdly, to prevent the testimony before them from being contradicted at the trial before the traverse jury by subornation of perjury on the part of the accused. 1 Greenleaf on Evid., sec. 252. When these purposes have been accomplished, how far and under what circumstances a Grand Juror may be permitted or required to disclose what transpired in the preliminary examination, are questions in regard to which the authorities are quite conflicting. Commonwealth vs. Mead, 12 Gray, 167; Com. vs. Hill, 11 Cush., 137; Freeman vs. Arkell, 1 Carr & P., 137; Watson’s Trial, 32 Howell’s State Trials, 107; The King vs. Marsh, 6 Ad. & El., 236; Low’s Case, 4 Greenleaf, 439; State vs. Fassel, 16 Conn., 467; Imlay vs. Rogers, 2 Halst., 347; Roscoe’s Crim. Ev., (4th ed.,) 19; Whar. Crim. Law, sec. 508. Be this, however, as it may, all the authorities concur in saying that the juror will not be permitted to state how any member voted, or the opinion expressed by his fellows or himself, or the individual action of any juror in regard to the subject-matter before them. Com. vs. Hill, 11 Cushing, 137. To this extent at least, the free, impartial and unbiased administration of justice requires that the proceedings before Grand Juries should be kept secret. Any other rule would be destructive of that security and independence absolutely essential in the exercise of duties so responsible, and fatal [145] to a vigorous and energetic administration of criminal law. The Court, therefore, erred in requiring the witness, Elbin, to state whether, as Grand Juror, he did not endeavor to have the appellee indicted for perjury, or whether he did not furnish names of witnesses to the foreman to be summoned for that purpose. The evidence of Millison and Tumlinson. in the seventh and eighth bills of exceptions, was properly admitted. Elbin, one of the appellants, had testified that he had refused to register the appellee in 1864, and, as one of the Judges of Election in 1866, had rejected his vote because of his known disloyal sentiments. That in so doing he was not governed by any bias or prejudice against the appellee. To rebut his evidence, and to show malice on the part of Elbin towards the appellee, it was competent for the latter to prove that Elbin, as register, had registered Tumlinson as a voter, who, at the time, declared the same disloyal sentiments, for the expression of which Elbin claims to have rejected the vote of the appellee. In regard to the law of the case, we think it was fairly put to the jury by the plaintiff’s prayer. If they believed that the plaintiff was a registered voter, and that the defendants wilfully, fraudulently and corraptly l’efused to receive his vote, lie was entitled to recover, and the jury had the right to give such exemplary damages as they might think proper under the circumstances. We find no objection to the modification by the Court of the defendants’ second prayer. As offered, it was calculated to mislead the jury. By the amendment, the plaintiff’s right to recover was based upon the fraudulent and corrupt denial of his vote by the appellants. The Court was also right in rejecting the defendants’ fourth prayer. The Constitution of the State designated the day for the election of State Senator and members of the House of Delegates, and on that day the appellee offered to vote, which was rejected by the appellants, as Judges of Election. [146] This proof, together with the other evidence upon this point, was legally sufficient to submit to the jury, from which they might infer that the appellee had offered to vote for State Senator and members of the House of Delegates, as set forth in the declaration. (Decided 1st July, 1870.) The Court having erred in permitting the evidence in the sixth exception to be submitted to the jury, the judgment must be reversed. Judgment reversed and new trial awarded. Stewart, J., dissented as to the sixth exception.