t4e,derk in the case of the East The question is whether, unqer section $24, Rev. St. U. S., the clerk, in mixing costs ,for attorney's fees, in favor of the prevailing party to a suit shop.ldtax $2.50 for the deposition taken and admitted in evidence of each witness, where the testimony of more than one witness is returned to court in one inclosure. The attorneys for Watters, the prevailing party, say that the testimony of each witness is "a deposition" in the meaning of the statute,especiaUy where, as in this case, the testimony of each witness ia takensepa.rately. This view seems to be correct. It is difficult to see how any Qther interpretation can be given the language, "for .each pep0!:1ition taken," etc. lt is suggestl'ld by cQunsel for the railway company that the expense to it of. havingth'e commissions:e.xecuted, and taking the testimony, should be deducted from the SUm to he taxed as attorney's fees for depositions. As I ll,oderstand this, statute; the fee of $2.50 "for each depositiqn ta.kl'ln and ,admitted in evidence in a cause" goes to the prevailing party for ,his attorney, and the eXipense of commissioners to' take the tes,timonyhlls.nQ connection with it. ' , ,. This brought..by Watters' '8.ttorneys, but, it being conceded 9n the hearingt,bat properly it should have been hrought in the name of Watters, the defendant-in the'casei;itwas allowed to proceed informally, ,nevertheless, to. determine the question made. It is ordered, therefore, the.clerk..ta:J;:in thebill'of.costs·in this case ;$2.·50 for the depositions of each witness taken and admitted in evidence., j ,
Tennessee,' Virginia & Georgia Railroad Oompanyv. Walters.
J. This is a. rule
UNITED STATES" t1. BADINELLI
, . ' f
. L EJ.oBOTIONIl-Un·
, ,.VOTB·.. ·
AGAINST ELEOTION LAw8-COUNTmG THE ,; .
Revised Sta,tutes. § 5515. punishes officers of,election for BOIDe violation only of their duty as prescribed by; law, and Dot for a violation of any duty imposed by a mere moral sense of fairness and justice in , . thllvQtes.),f, theref\>re,tqey undertaket\> ,::ount the ballots in a "man,ner uQt,a·lthor.lzed. by .law, no duty as to that c\>unting is imposed for a violation of which they may be under the federal statute. The offense punishable, in such a case, is the counting of the votes in the unla'lVfnl . po how fairly . " .
SAME-PLACE OF COUNTING-ExCLUSION OF ELlllCTOR,S.·
The Tennessee Code requires a free, open. and public counting of the vote at the place where the vote is polled, and nowhere else. It does not provide for a count in a private room, to which thel!lallot-box has been takerl: protected by policemen from the intrusion .af all not,admitted by the election officers.. It is, therefore vi()lp.tipn qf a dntypunisbabl.e"py the federal statute to exclude' an elector from sucli ari unlawful c6untlhg, whether he be entitled to be present at a public and lawful counting at the polling place or not; but the indictment shq!}ld have charR'ed the of violating their
UNITED STATES fl. BADINELLI.
duty in not counting the v!rte,!lt the place and in the mannerrequrred by law, 'and in removing thebaHokbox fromth!ltplace,andcounting the vote. unlawfully, in a private room. . ",
S.,SAME-RIGHT OF ELECTOR TO BE PRli:SENT.
Under the Tennessee Colle those electors who' have' the right to vote in a precinct have also the right to be present at the counting of the vote in the free, open. and public manner required by law at the polling place appointed 'and registered for that purpose; and while a candidatehas a right to vote in that precinct, if he has not exercised that right but has voted elsewhere. he is not an "elec;tor" at that precinct, with the statutory rightto witness the count, though he may. as any citizen may. be present at the public count provided by law, no one being prohibited from such attendance. Yet, it is no offense under the federal statute to exclude him from an unlavvful count in a private room. sillce no such counting can be lawful in Tennessee. and no duty of ad· mitting or excluding electors or others from such a place is imposed by law
On Indictment for Violation of Election Laws. At the congressional elections held at the Fourth ward in the city of Memphis on the 6th day of November, 1888, the defendants were the election officers charged with the duty of holding the election at that place. When the polls had closed they carried the ballot-box, accompanied by the clerks and federal supervisors, through the saloon in front of which ,the polls were held into the back yard, up a flight of steps, and through a hallway into a private room, where the counting was fairly done, according to the testimony of the federal supervisor for tbe rept;lbliean party, the only witness examined on that point, and who helped to do the counting. The witness J. E. Bigelow, who was the republicnn candidate for state senator, being present at the dosing of the poUs, and desiring to witness the count, followed the box through the' saloon and into the back room of the 'saloon,where he was told by two of the defendant$tbat he could not go with them' to the place where the counting was to be done. He protested' that he was an elector and a candidate, that he had a right to be present at the cOunting, and that he proposed to exercise his legal right in that regard. He was told to go back, but persistedin follOwing the defendants and the box into the backyard and up theJlight oIsteps; but at the head of the stairway he was met by two policemen, who told him he could go no that their orders wete to enforce obedience to the ihstructions of the election officers, 'apd they had been directed to exclude him froin following them into the room where the counting was to be done. He departed, and was not present at the £onnt. The federal supervisor, who was e'Xaniined as awitnefls, being appealed to by Judge Bigelow, insisted that Bigelow had the right to be present, and demanded of defendants that he should be allowed to exercise that right, but they still refused him admittance to the count. Bigelow did.not reside in that ward of the city, norin that dvil district of the county, but in another ch'il district in the country, where he had voted previously to coming to the Fourth -ward to watch the election. There was some proof as to the character of the crowd and 'its conduct, the inclemency of the day, and the details of the surroundings at the time of the exclusion, not necessary, to mention here. The defendants w:ere indicted under Revised Statutes, § 5515, for a failure to perform
their duty "to count the ballots cast at such election in the presence of such electors as chose to attend, in that they did willfully and unlawfully refuse to allow one J. E. Bigelow to be present and attend the counting of the ballots cast at said election, the said Bigelow then and there being an elector who chose to be present at said counting of the ballots, and was then and there requesting and demanding of said officers that he be permitted and allowed to attend said counting as such elector, contrary to the form," etc. The second count of the indidment charges an unlawful denial of the right to be present "by excluding him from the room in which the counting of said ballots was being made," contrary, etc. The duty alleged to be "iolated is that prescribed by the Tennessee Code, § 861, (Mill. & V. Code, § 1068,) as follows: "When the election is finished. the returning officer and judges shall, in the presence of such of the electors 8S may choose to attend, open the box, and of the persons which shall appear in eachpallot; and the readaloudthe, clerks at the same time shall number the ballots, each clerk separately." out' , Other pr;ovisions of the Tennessee Code, not necessary to be fully, require everyone to vote in the civil districtor ward in which resides,except that certain persol}s" including candidates, may vote anywhere in.the ctty or county where they happen to be on,election day. WllE:ln the district attorney had closed his proof, the defendants moved the court'to instrqct the jury to ,find for them upon their plea of liot guilty, because the facts showed that the witness Bigelow had voted in his home precinct, and, although a candidate, that he had no right to be the ,cpunting of the ballots; he not being an "elector" in the lfourih.w;ard.. The defendants did not wish to demur to the evidence bec!luse, ifthe upon the questions of law to be argued should be decidedagairist tbem,< they wished to examine witnesses then in atThe court declined to adopt that practice in criminal cases, irat all in any case, and required argument as to its propriety; but the qistrict waived any objection in this case, and agreed that the. motion tpight be considered upon its merits, as if upon demurto the and, if decided adversely to the defendants, that they put i,n their proof notwithstanding; to which arrangeIQe11t the court.assented for the purposes of this case only. ,'H. W. ,JfcOrmy, U. S. Dist. Atty., and H. a. Anderson, Asst. U. S. Dist.Atty! .. Luke E., Wright, WH. Carroll, Watson Hirsch, E. F. Adams, andzaclo fQr defendants. , . ·
(after the Jacts ets above.) As was well remarked' of the learned cou.nsel for the defendants; our election laws constitute, as a whole, a scheme for the regulation of the proceeding intended to lre,qure to people a free,tilir, and honest election, to facilitate the rigbtto vote, and. preserve the purity of the ballot-box; and they must, in construing any.plp."t of them, be examined REI a whole. As arranged in the sectiousoftl}'e Oode of 1858 they will he found to be broken .a,9d,qisarranged from their original contexts, and, when restored,
UNITED STATES t1. BADlNEJ,LI.
their meaning often made more clear. They are found in chapter 2 of article 6 of that Code pertaining to "Officers and Elections," the original basis being chapter 9 of the acts of 1796, passed at the first session of the general assembly of the state, from which the section in controversy here was taken. Code 1858, §§ 812-887; Thomp. & S. ,Code, §§ 812-887; Mill. & V. Code, §§ 1003-1096. There cannot be the least doubt upon reading them that the intention is to provide for a perfectly open and public counting of the vote of each precinct at the place in that precinct where the election is held. The county court is required to designate such placesJor each precinct at least six months before the election, and to enter the designatiDns of record. Act 1827, c. 27, § 1; Code 1858, §§ 837, 837a; Thomp. & S. Code, § 837 et 8eq.; Mill. & V. Code, §§ 1041-1.'043. Then come the provisions for counting the vote and making the, returns, with which we have to deal here, among the sections regulating "the proceedings at the polls," and after that those sections regulating the ceedjngs after the polls are closed,"which classifications, titles, and titles are a part of the originll.I Code itl'lelf.:B'roill the whole scheme it i!l that the counting must take place, ,at the polling place. andca!} be, had nowhere else without violating the duties iIllPosed by these laws, and "in the pres\:Jnce of such of the electors as may choose to Code 1858, art. 7,§§ 846-863a; Id. art. 8, §§ 86,4-871; Id. art.9,§§ Th(>mp. & S. Code,§§ 846-887; & V. Code, §§ 1053..... 1096. If, therefor!!, these defendants had been indicted here for removing the ballot-box from the place designated by the county court fOl: holding the election, including, the count in the presence of E\1;lch of the electors :as should choose "to attend," they woul<l, on the proof as now presented under this proceeding, be guilty nnder the Revised Statutesof the United States of violating their duty as election officers under the laws :ofthe state, !l:ndsubject totha penalties imposed by congress. Rev. St. § 5<515. ';I.'he state laws do not, evidently, contemplate such a proceeding As that by ,this proof, where the oijicers of election carried the ballots to another place than that designatea for holding ,the election in ofsuch electors as "shall attend" that electiqn,eitherfor the of casting their ballots und,el' section 849 of the Code, or of witJ;lessing the count under sections 860 and 861, Code 1,858;, Mill. & V. Code, §§ 1056, 1067, 1068,-these sections being at first parts of the same section, and even of the, Ilame sel).tence, of. the original act of 1796. 1 Scott's Rev. 557, c. 9, § 3. This place to which theyunlawfully carried the box to make the count was a small private room into peI:sons were admitted as the officers chose. to, admit; p()licemen being stationed to guard the apP1=oachesto it, 'and enforce their orders in ,that b,e,half. As one of the learned cOUIisel for the defendants said in !flent, it wasnever contemplated that in making this count the officers be put to the peril of deciding which of the electors should. possess the necessary qualifications of residence, or what, not, entitlipg the,m,to he, present at the count,'l'he counsel urged that the 9ffice,rs,ip,the 1'1ature of the case, could only be required .t9: a9r,nit
onstrated their righftobe present l\t'the count by theacpeptailCe of their votes' and the placing of their na:mes upon the poll-lists. The truth is, the statutes never contemplated ohintendedto provide that the officers of election should be put to the examination of any evidence whatever to determine that question at' all; not. any more' of the votes as appearing tin the poll-lists than of other evidence aliunde that record. Neither of these was contemplated, because 'no such proceeding as a count in a closed or private room, from which the officials might exolude or admit electors, aecording to any evidence whatever, was within the view of the legislature. These laws do not provide for such a situation as that any more than they do fora count with military guards, and military orders fot the admission orexelusion of persons desiring to be present at the count. No such proceedings are provided for at elections in the state of Tennessee, but an open, free, and fair election in the presence of the eJectors choosing to attend at a particular place previously designated by law and recorded, where the casting of the ballots and their counting immediately upon 'the closing of the pOlls shall take place, and neither 'of these functions can be performed lawfully at any other place, -not the counting any more thab' the casting of the. ballots. Therefore there was ho duty devolved upon these officers to count the votes in another place than that where they were cast, protected' by policemen or themselves froni improper intrusion of those not :entitJed to be present; and of consequence they cannot be held criminally liable for any supposed violation of duty in that regard, either by the admission of improper persons to the count or the exclusion of proper petsons therefrom. The criminal offense is in resorting to such a place 'to do the counting, and for that these defendants are not indicted. That which they were doing being unlawful, there was no lawful way to perform the duty, and they cannot be charged by indictment for irregularities in doing it, but should have been charged for the unlawfulness of the entire performance· .Jr, however, the court be mista.ken in this view of the law, which seems so plainly written in every feature of election laws from the original 8ct·of 1796, atideven of the laws in vogue before our state was organized, to the present day; the result must be the same if it be conceded tha.t the count at that place was lawful; because, whell we read the one sentence and the one section of the original act of 1796, from which the existi?gsections of the Code are taken, it is perfectly plain that the words "such of the electors as may choose to attend," used in section 861, (Mill. &: V; Code,. § '1068;) are meant· to ciescribe the self-same persons previ(>Usly mentioned in section 849,--'-and likewise so in the original act,-"as "every person qualified to vote, in 'the manner directed by the (lonstitution, who shall attend fbi'that 'purposeittaby election," etc. Mill. &: V. Code, §1056:. That is to say, ally and all persons attending at that precinct for th'e'purpose of velting have the statutory right to be present when the l'etul'l1ing officer and judges shall "open the hox and read' alou(1 the hames which shall appear in each ballot; and the clerks at the same time shall number the ballots, each clerk separately." ' Code, § 861; MilL· &: V'Code', '§ 1068. ' ,
,TheqleaQing oUhe word "elector "in .Qur constitJItron and laws'is not uniform, but depends llpon the subject-matter of the legislation the . particular context, as is 'shown by a caret\II reading of these statut,ei> themqualitled according to the constitution and selves. Here it means' laws of the state to vote .aUhat particular precinct, and who attends there for that p':lrpose. The'court thinks the place mllst be the same and the "attendance" the same, under either section or under both of them; but the mode and manner of the count, and the designated "electors" entitled to be present, must be the same, if the. places may be differ,. Now, the prosecuting witpess Bigelow did not attend at that time and' place, ora.t either place. if there may be two, to vote at that .precinct. He was disqualified from voting there, because he had already voted at his home,precinct; and if ,he had offered to vote, and had, been challell-gOO, and the authorized questions asked, he would have been excluded, becaIJl:lehe tnJll;lt have answered, that he had voted before at the same elec,Code, § 854; Mill. & V. ;Code, § 1060. It iEi true that, being a can-didatefor Eitate I;lenator, he had the right to vote out of his civil district ,and Jlt thi!:l place, and might h,lVe attended there for that but , he did llQtexercise this, option or right, but, on the contrary, chos,e .to voteatauotller precinct, was not, therefore, an "elector" atthil:l place. It is an inevitable result, th::tt he was not an elector :entitled to be pres-ent at the count, if the count could be made on any such theory as ,was adoptl'ld, apd as is indictment in,tllis case. But the court ,,does not sanction that theory or implication for the reasons already stated, ,that it iSJ;Elpl,lgnant to the whole scheme of our election laws, and lellds, to ,inextricable confusion and disastrol,ls conseqllences, as is obvious to any intelligencewbatever. The judgrn,ent which ,we, give is therefore,plac6d , :t:lponthe frrstground stllotel1,and not that just considered. It is true, these "lawll I;l;lade preven,t frauds,anli should be construed to that end, and ,the constl:'u(:lti()n placed.llpon the.m by the district attorney best tends to accomplish that reault, no dOllbt; but beclLuse, the legislature might and ,:,should allow 3ll electors, and esPflcially all candidates, to witness any may wish to witness. where their interests are involved, does nokfollow that it has done so, if we may adopt the erroneous '. 'View of the$estatutes just considered. The laws, properly construed, do not prohibit anybody frQIDattending an election precinct during the progress of the: whole. perfo»mance, and if the plan of holding .the election 'Which I l1avepointed out as the lawfuLone. be aqopted, and there be a. . !reeand open tak\ng of the ,ballots, apd a freean,d open counting of the ilame, as a continuous operation at the place designated by law and re< ,corded, and,llll in the presence of the electors attending there for that purpose, nIl well-behaved persons, evenstrapgtlrsand electors at other 8.11 candidates, IPay !>¥lnd ,by and see. the perfOl'man,ce go : >on from. and fraud is thus reduced to a minimuw, : ItcllJonly is had to thEi urlawful method of taking the ballot-box to another place, not open and free to all the electors of that precinct to attend at will, but requiring ad-
mission by permission of some one ormore persons usurpingandassuming the function of deciding who shall and who shall not be present at the count, that questions can arise as to the right of anyone to be present, or the right of anyone to exclude him. There being no such theory in the law itself, provision is not made for such a'proceeding, or for deciding any questions concerning it; but, on the contrary, provision is made for the punishment of .those officers of election who resort to that or .any. unlawful method. resplt i.s t?at these defendants, bemg mdlCted for the offense they dId commIt, If the proof be true, as It is agreed we may assume it to be for the purposes of this case, but for acts not provided against by the penal statute, the verdict of this jury must be in their favor, and that they be discharged. So ordered. Since the foregoing opinion was written it has occurred to me that, in · order to avoid any possible misapprehension, it should be added that this ruling does not proceed upon the theory that it is lawful to exclude ·anyone from. such a counting of the ballots as the defendants undertook, or felt authorized to make, but solely upon the grourid that the federal statute punishes only a violation of a duty imposed upon the election · officers by law; and it must be confined in its operation to that offense, and cannot beexteridedto viola;tionsof duty imposed by a high moral '. sense of fairness and justice in making the count in whateve"r manner they may choose for convenience or comfort; nor to violation of any supposed duty, imposed upon thE'm by the nature or the 'business in hartd, ·(If adopting that plan' suggested or offered to them of so conducting the count as to allay whatever of suspicion or apprehension might exist of , possible fraud on:their part; nor to a violation of any supposed duty : on their part of conducting the 'count according to their own construction '. or apprehension of the duties ,imposed upon them bythe statute regulating the method of the count, so that the statute, as they understand it, may , be complied with. Congress might possibly have punished election offi. · cers for all such violations as these, or others that may be imagined as pertinent to the subject, growing out of that general duty to do thatwhich is honest and fair in the performance of the function of counting the votes at an election, butithas been content to enforce a compliance with the atatutory methods of making the count, whatevet they be, by punishing ,a 'violation of that duty, and nothing else has been punished in that behalf. The object of the federal statute is to compel these defendants to hold the election in all things according to law, and to do thecountirtg according to law, and ilotto compel them to fairly'and honestly do all the things which they may do, however they proceed to do them, whether 'willfully or tlirough a misapprehension of their duties under the law; , just as it is the object of the law against larceny to punish the thief for ,.the felonious taking of one's horse, and not to punish him for refusing a polite requeRt by the owner for a return of the ltnill1al; and he should be indicted [(lrthe taking, and not return upon request. .
UNITED STA'rES V. WHALEY
(OirOflitCou'l't, B. D. Calijomia.
Act Congo March 3, 1885, provides that "immediately upon and after the passage of this act all Indians committing against the person or property of another Indian or· other person any of the following crimes, namely, murder, manslaughter, " etc., shall be snbject to the same laws, and tried in the same courts, as are all other persons. Held, on indictment of Indians for the killing of another Indian, in obedience to tribal resolutions, that it was no defense that defendants never had notice of the statute.
Indictment of Bill Whaley ,Pancho Francisco, Salt Lake Pete, and Juan Chino, (lndians,) for murder. ;George J. Denis, for the United States. George W. Knox, for defendants. Ross, J. The deftmdants, who are Indians, are charged by the indictmentin this case with the murder of one JUl'n Baptista, also an Indian, :committed on the Tule River Iudianl'eservation, within the state of California,all of the parties at the time the usual tribal relations. When the case was called for trial the district attorney stated that. the proof would. be such that a verdict of guilty of murder could not beprocured,nor could he contend for it, and. therefore consented .thatthe. de,tendante be permitted to withdraw their' plea of not guilty, and enter·oneof gpiltyofmanslaughter, which they desired to do.. That was acpordingly done. To enable the court to give proper judgment, the oounsel for tbe, respective parties then agreed upon most of the facts of the case; and as to one Ot; two points, upon which they were not entirely witnel'lses were, by their joint request, heard. These proceedings developed this state of facts: The defendants were memberS' of an Indian tribe, domiciled upon the reservation named; and the deceased was .an Indian doctor, who, in the course of his treatment of the members .of thetribe, had been so unsuccessful as to induce the belief on the part ofits plembers he had, been systematically poisoning his patients. About 20 of their number had been treated by him, and under his treatment e:;tch of them had died, . Finally one Indian, Hunter Jim by name, who. was a favorite with the tribe, became, under the doctor's treatment, very sick. The members of the tribe held a council, and informed the doctor that if Hunter Jim died they would kill him. Jim did die. A cOUllcil was held, at which it was determined to kill the doctor, and the fOlU defendants were appointed to carry into effect that determination, which they did, upon tbe reseryati,oJ;l, the following 'morning, by shooting.biIP. . Ha<ithis homicide been committed prior to the passage ofthe act of congress ,of March 3, 1885, this court would have had no jurisdiction of theoffense,Jor the F:overnment Qf the United States had theretofore perthE! Indians. preserv.ing their tribal relations to regulate and govrelations. But by the act of 1885 conern their owh internal made a radical change in that policy, and therein enacted: