In the Court belowj

J- HIS was a prosecution before a justice, on the corn-plaint of a grand-juror, for unlawfully voting in the town meeting of Durham, on the 10th of December, 1804.

The complaint stated, that the defendant, not being a freeman of the state, nor a lawful inhabitant of Durham, por a householder, “ and who had not, on said 10th day of “ December, a freehold estate rated in the common list at “ nine dollars, or personal estate rated in the said list atone “ hundred and thirty-four dollars, and who had never been, in any way or manner, qualified to vote in town-meeting, “ or thereto admitted, did vote,” &c. A conviction was had before the justice ; and the defendant appealed to the County-Court.

The case was first heard in January, 1806 ; and the jury, to whom it was committed, after having had it several days under consideration, could not agree. The attorney for the State proposed, that the Court should take back the papers, and discharge the jury ; to which the defendant, and some of the jurors objected. The Court waited until some time in the afternoon of the last day of the session, and then directecl the jury to deliver upthe papers ; which they accordingly did, and the cause was continued,

At March term, it came on again to be tried. | After the Íur>r were impannelled, and the defendant had pleaded Not guilty, there was an objection to the testimony, taken ore tenus, that there had been one trial, and that the defendant could not agajn be put in jeopardy; which was overruled by the court^ In the course of the trial, the defendant, to shew that he was qualified to vote in said town-meeting, offered in evidence a deed of a piece of land, dated the 13th of October, 1804, accompanied with proof, that he immediately took, and had ever since retained possession, and that the land was rateable at more than nine dollars in the common list. This evidence being objected to, by the attorney for the state, the court excluded it, on the ground that it was irrelevant, inasmuch as the land was not in the defendant’s list for the year in which he was charged with voting illegally. The jury found the defendant guilty ; and judgment was rendered against him.

On a writ of error to the Superior Court, the judgment of the County Court was reversed, on the ground, that it is a person’s owning real estate to the amount of nine dollars, as rated in the common list, which qualifies him to vote in town-meeting, and not his being rated lor it, by having put it into his list.

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