Convery v. Conger

The opinion of the court was delivered by Dixon, J. This is an appeal, under section 113 of “An ¡act to regulate elections ” (Rev., p. 337), from the decision of Hie Middlesex County Circuit Court, upon a contest arising over the election of county clerk in November, 1889. The county canvassers had determined that at the election Patrick 'Convery received five thousand nine hundred and forty-nine votes and John H. Conger five thousand nine hundred and thirty-three votes for the office of county clerk, thus electing the former by a plurality of sixteen. In this canvass, out of six hundred and eight votes cast in the First polling precinct <of the Sixth ward of New Brunswick five hundred and five votes were counted for Convery and one hundred for Conger. Before the Circuit Court, Conger insisted that' in that polling place he had received over two hundred legal votes, and that some of them had been fraudulently abstracted and ballots for his opponent fraudulently substituted, so that, according to Hie votes actually cast, he, Conger, was elected. The Circuit ■Court decided in his favor, and ordered that he be' put intis possession of the office. Thereupon Convery appealed under the statute to the Supreme Court, alleging in' his petition seven grounds of error in law committed at the Circuit. Of these, the sixth and seventh have already' been adjudicated by this court in Conger v. Convery, 20 Atl. Rep. 166; — 470 — the first and second were not referred to by appellant’s counsel on .the argument, and are presumably abandoned; so that there remain to be now considered only the third, fourth and fifth. The last two grounds’of error relate to the action of the-Circuit with regard to the ballot'box and ballots canvassed in the disputed precinct. The appellant contends that they were-not put in evidence at the trial, and therefore the Circuit Court should not have considered them and should have struck out all oral testimony concerning them. The trial was brought on before Mr. Justice Scudder without a jury, and, according to the bills of exceptions, this was-the action taken : The counsel for contestant produced before-the justice the box containing the ballots, which was then opened, and the justice inspected its mechanism and contents;, each ballot was then examined by .counsel on both sides, and a memorandum made of the name upon it for county clerk;: then contestant’s counsel desiring to call voters as witnesses-to prove how they had voted, the counsel for the appellant inquired whether the box and contents were offered in evidence, to which the justice replied, “They have not been yet, but I suppose they will .be eventually; undoubtedly either side may offer them;” and contestant’s counsel said, “We-have not offered them, yet, but undoubtedly we will offer them;” the appellant’s counsel then objected to the examination of voters, urging that the ballots were the best evidence,, and that the appellant relied upon them.; after the testimony of the voters had been heard, the ballots were inspected singly by" the justice, and a witness produced by the contestant was examined with regard to the indications upon each of its having passed through the mechanism, of the box. Subsequently the following took place (page 143 of the printed book): “Contestant’s counsel—I offer now in evidence the poll, book * * * and register. “Appellant’s counsel—You don’t offer the box or ballots ? “ Contestant’s counsel—No, sir. — 471 — “Appellant’s counsel—I move, may it please the court, that all the testimony concerning the ballot box, its condition as it appears now in court, and the ballots and their condition, be stricken out, on the ground that they can be relevant only in this case if the box and ballots are offered as exhibits by the parties offering the evidence. “ The Court—I suppose, in effect, the motion is a motion of non-suit. The plaintiffs have not produced the ballots and ballot box, or at least the instruments offered—have not produced them in evidence upon their side, and if they have not they are not in evidence, and they stand upon the testimony as to other facts in the case outside. I will overrule the motion, aud give you an exception. It will have to be tried, of course, as the counsel see fit to present it. “ Exception allowed aud sealed. , “ E. W. Scudder. [l. s.] “ Contestant’s counsel—My opinion about this box and its contents is, that they shall be offered as exhibits for identification not properly in evidence, but what the court has inspected, and what may possibly be referred to hereafter; and I therefore ask in that sense that they be marked for identification. “ The Court—I consider them so. They are marked for identification.” Thereupon the contestant rested, and the appellant produced testimony and rested; and then ensued the following (page 204 of the printed book): “The Court—I would say that both parties have rested without putting in evidence the ballot box, its contents and the tickets. I certainly shall not decide this case without those things being offéred in evidence, and I consider them in evidence. They were called fdr by counsel for the contestant, admitted by the court against the objection of the incumbent’s counsel, examined thoroughly and cross-examined — 472 — upon, and they are in evidence in this cause. I shall so consider them, both sides having rested' their case. “Appellant’s counsel—May we ask on whose side they are in ? “ The Court—The party who called for them orignally; the contestant called for them and you cross-examined upon them; I consider them in evidence on the part of the side calling for them. “Appellant’s counsel—To that ruling of the court we pray an exception. . . “Exception allowed and sealed. “ E. W. ScUDDER. [L. S.] “The Court—Either side may take an exception if they desire; I simply say I will not decide the case without those before me. “Appellant’s counsel—An exhibit having been testified to by the contestant, by his witnesses, and he having declined to pursue that exhibit further than to identify it by certain .marks upon it, or the absence of certain marks, it is accepted by the court as an exhibit on their part. “ The Court—It is in evidence for what it is worth. “ Contestant’s counsel—T suppose the court, of its own motion', can put them in evidence. “ The Court—That is what I do, upon my own motion. I say the party who called for them must consider them in evidence on their side, and the court will not decide the case without their being in evidence. “ Contestant’s counsel—I do not see how the court could fairly decide this cause without them. I suppose the offer is -a mere technical matter.” ■ Upon this state of the case, the appellant claims, not. that the box and ballots were legally inadmissible as evidence, but that, in fact, they were not put in evidence. I think the record plainly manifests that they were put in evidence. When they were produced to and inspected by the justice as facts to be considered by him, and witnesses were — 473 — examined whose testimony was unintelligible unless they were so considered, they were necessarily made evidence. As well might a party say that the testimony of a witness, whom he has called and sworn and examined, is not in evidence, as to say that a document, which he has proved and submitted as a fact to those who are to pass upon the facts, is not in evidence. His-conduct has put it in.evidence, and, if .he repents,.he can only seek permission to withdraw it. I also think the record shows that the contestant formally offered the box and ballots in evidence. His counsel apparently feared (without the slightest legal reason) the. effect of a formal offer, as evidence, of ballots which they deemed fraudulent, and so, at the close of their testimony, guardedly offered the box and ballots as exhibits, using the word which the appellant’s counsel had employed to indicate what they insisted on, and subsequently the contestant’s counsel declared their acquiescence in the‘determination of the court to treat the box and ballots as evidence .offered by the contestant. This amounted, in form as well as in substance, to an offer of ■these articles -in evidence by the contestant. I find no error on this point. The other assignment of error is, that “ the court erred in permitting the testimony of Louis Weil as an expert upon •the subject of whether each ticket in the Hall & Wood ballot box had actually passed the slot, as it was a matter of observation.” This' does not precisely state the purpose for which the testimony of the expert was offered and received. The exact purpose.was that he might “take up each ballot by itself and express 'his opinion as to whether he sees upon that ballot the indication of passing' through the machine.” This he did, the justice examining each ballot with him. We are to consider whether his opinion upon that matter was competent. ' Said Chief Justice Green, delivering the judgment of the Court of Errors in Cook v. The State, 4 Zab. 843, 852: “ The line between questions of science'or professional skill, to which — 474 — an expert may legally testify, and questions of mere judgment, which the jury alone are to answer upon. the.facts proved, is-not always susceptible of being clearly defined. ■ The distiuction stated by Mr. Smith, in his n.otes to Carter v. Boehm (1 Sm. Lead, Cas. 206), is, perhaps, as satisfactory a statement of the rule as can be made: ‘ The opinion of witnesses poásessing peculiar skill is admissible whenever the subject matter of inquiry is such that inexperienced persons are unlikely to-prove capable of forming a correct judgment upon it without such assistance, in other words, when it so far partakes of the nature of a science as to require a course, of previous habit or study in order to the attainment of a knowledge of it; but the opinion of witnesses cannot be received, when the inquiry is into a subject matter, the nature of which is not such as to-require any peculiar habits or study,- in order to qualify a man to understand it.’” Perhaps not strictly witljin the principle thus enunciated, but certainly akin to it,.is the rule admitting. the opinion of witnesses with regard to the genuineness of handwriting, of coins, of paper money, of pictures, of postmarks, of corporate and official seals, and of other such matters, to which the witness may speak, not so much because- of any special, skill, but because from previous acquaintance with genuine specimens, or with the instrument for making them, .he can recall a mental image of their peculiarities with which to compare the thing produced, and so form an opinion as to its authenticity. Of this class.was the evidence now’ Under consideration... The witness had repaired and adjusted several hundred machines of the same pattern as that used in the disputed election, and so had become familiar with the effects it would-produce upon ballots passing through it. From this experience he was enabled to testify that, if in perfect - order, the machine would imprint upon each ballot a small circle and the name of the election district, in ink, and would, also, at the centre of the circle, indent or puncture all or some of the folds of the. ballot, and would impress on each side of the ballot, as-folded* a series of linear indentations resembling the — 475 — milled edge of a coin. He also testified that the machine then before him was not in order; that it would not print the circle and name, and might not produce, the puncture or indentation through the folds, and. that the position and distinctness of the puncture and indentations would- vary with the different strength and thickness, of the ballots and the direction of their passage through the machine. So much was stated verbally by the witness, but even this was not enough to qualify one for determining whether the marks, to be observed upon each ballot, were made by the machine. A more exact idea of its effects than words could, convey was necessary for that purpose. The peculiar experience of the witness had left in his mind standards, or elements for the formation of standards, with which the impressions upon each ballot could be compared, as the basis of an opinion useful' in deciding the question before the court, but it was as impracticable for him to state to the justice in advance the grounds upon which his opinion in each instance would rest, as it would be for a witness testifying about the genuineness of handwriting. Probably, by a careful examination of the machine, or of many ballots stamped by it, the justice would become competent to form an opinion for himself as to other ballots, but that ability on his part would no more render the opinion of the witness illegal as evidence than would similar conditions touching, a corporate seal. The opinion of witnesses in such cases is not, in a technical sense, secondary evidence, to be received only when weightier evidence cannot be secured. It is legally, admissible before the jury, although every juryman on the panel had previously acquired, or from other evidence in the, cause could acquire, the ability to form as trustworthy an opinion as that of the witness. In the present case, the justice, clearly recognized the aid which the opinion of the witness might afford him in his own investigation of the facts, and therefore.the doctrine of the Supreme Court of Massachusetts, expressed in Bacon v. Williams, 13 Gray 525, is especially.pertinent, that “the capacity of a witness to enlighten a jury on a .matter of skill. — 476 — or science, or on a subject beyond the common experience of men, can be best estimated by the judge who presides at the trial; and this court would be slow to revise a ruling on such a question, unless the error was very plain and palpable.” The Circuit Court was not in error upon this point. The judgment below should be affirmed.