In Lexington precinct contestant claims 320 votes, and gives none to either Mr. Stevens or Mr. Shelley. Now, the imperfect return from this voting place which was sent to the board of canvassers, though unsigned, shows by its contents (a tally of the vote) 11 votes for Mr. Shelley and 140 for contestant. Evidently the inspectors had commenced to keep a tally of the vote cast, and had given 11 votes to Mr. Shelley and only 140 to Mr. Smith, yet on the witness stand they say that contestant received 320 votes and contestee none. Only two witnesses are examined, and these are July Adams and Harris Mosely. Adams was present and assisted in the counting of the vote. He says that the ballots were never read when they were counted (R., pp. 127, 128). They were all considered as Republican ballots and as votes for contestant, and so counted without ever being read. His testimony as to this is as explicit and positive as testimony can be made. There is no evidence to contradict or discredit Adams' testimony.

Witness Mosely was a deputy marshal who did not see the votes counted and does not pretend to know what the vote was. (R., pp. 129-131.)

These ballots have never been counted so as to ascertain the actual result of the election; but if the contestant had put them and the polllist in evidence they could have been counted and the result of the elec tion correctly ascertained. Until those ballots are read and counted, or until the voters themselves are examined and testify, no man can say what was the result of the election at that precinct.

In Chillatchi precinct the inspectors numbered the ballots, in viola tion of the law, and in direct violation of their oaths compared the numbered ballots with the name opposite the corresponding number on the poll-list. (R., p. 143.) No account of the vote cast was kept by the inspectors as the ballots were being counted. In the language of the witness "no one did any writing while the votes were being counted." (R., p. 143.)

The provisions of law in relation to the counting of the ballots were entirely disregarded. The tickets were not read when they were counted, or at any time, as far as it appears by the evidence. They were counted by William Perry, a clerk, and not an inspector of the election; and Lindsey Irby swears that Perry opened the ballots to keep from counting two, but "that he never did read them all over any time." (R., p. 136.)

Tony Abels (R., p. 142) contradicts the testimony of Irby to some extent by stating, first, that only the name Smith and Garfield were called out, and then that only the names of the electors were called. But Lindsey Irby states that the ballots cast at the election were delivered into the custody of Harris Mosely, one of the inspectors. Why were not these ballots produced in evidence?

In River precinct Dave Barnes, one of the inspectors (R., p. 93), was made the custodian of the ballots, and though he was examined as a witness for contestant he was not even asked to produce the ballots. Contestant's witnesses give him 314 votes at this precinct and contestee only one; they all swear to this precise number, yet the tally-sheet returned by them to the board of canvassers, which is in evidence, shows only 305 votes for contestant.

In Pine Flat precinct the ballots were delivered to the custody of Sam. Boner (R., p. 81), one of the inspectors. They were not counted by the inspectors, but by the two clerks and one inspector (R., p. 82). This is the testimony of Square Grumbers, who swears that he took the ballots out of the box as they were being counted, while Shadric Tarber, United

States supervisor, is equally positive that Gabe Hayden performed this duty.

In Mitchell's precinct we have only secondary evidence as to what the vote was, but when asked why the inspectors did not sign the return we have as an excuse that they "forgot it." Their return, however, though unsigned, gives contestant only 355 votes, while all three of the witnesses, Hatcher, Thomas, and Moore, state that he received 360.

No attempt is made to put in evidence the ballots which were cast at the election. Contestant does not even examine Henry Vasser, who took down the names of the voters as they voted, and delivered their tickets to them. His testimony would have been valuable, because he was not one of the officers of election who forgot one of the important duties of such office and made a return of 355 tallies thereon, when the correct number, as they swear, was 360. We merely comment upon the character of the testimony in relation to these precincts in order to show that in the absence of the ballots it is unsatisfactory and unreliable in the highest degree.

Contestant proves by his own witness, J. V. McDuffie, who as judge of the probate court was a member of the board of canvassers for this county, that when the box was opened in the presence of the board it was found to contain 45 ballots for James Q. Smith for member of Congress, and between 200 and 300 ballots for William J. Stevens for Representative in Congress. As there was no statement of the result of the election by the inspectors found in the box, the board of canvassers were unable to count the vote. Now, McDuffie says:

It's my opinion from examination and inquiries I have made that there was a fraud at Whiteball beat, and that it was done by the box being opened from the bottom and everything in it except 45 tickets with Smith's name upon them taken out, and these Stevens tickets put in.

McDuffie was the warmest friend of Mr. Smith, and was the officer before whom all of his testimony was taken. He does not inform us what was the extent of his examination or the nature of the inquiries he made. Now, contestant having proved what were the character of the ballots found in the ballot-box by his own witness, it is then attempted to set aside the force of this testimony by accepting the mere opinion of this witness that the box was tampered with. But there is positive evidence that the box, when opened by the board of canvassers, was, with its contents, in the same condition as when delivered by the inspectors to the returning officer of the precinct, and by him delivered to the returning officer (the sheriff) of the county.

The returning officer of the precinct was Phillip White, the Republican United States supervisor, and he swears that he delivered the box intact to the sheriff of the county (R., p. 176), and Mr. Graves, the sheriff, swears that the box, with its contents, was delivered by him to the board of canvassers in the same condition in which it was received. It is not pretended that the ballots were tampered with before they were delivered to the returning officer of the precinct; nor could it be, because, White, Republican supervisor, and Willis Brady (R., p. 199), the Republican inspector, testified to the contrary; nor can it be pretended that the official statement of the result of the election was put in the box and fraudulently extracted, because White, the Republican supervisor and returning officer, testifies that nothing was in the box "but the clerk's list and the tallies." The box and the ballots are not

put in evidence, so that the House is unable to say, from examination, whether the bottom of the box had been removed, or whether anything in the appearance of the ballots indicated that they were not those actually cast. The statements of the witnesses, supporters of contestant, that the vote was different from what the ballots themselves show, is setting up the mere oral declarations of these witnesses as to what the count was, or the count itself against the ballots, it not having been shown that they were not the actual ballots cast at the election. The officers of the election, White and Brady, who testify that the vote as counted does not conform to the ballots as found in the box, were also the officers who negligently or corruptly neglected or failed to make the board of canvassers a lawful return of the vote. Under these circumstances it appears to us that the only satisfactory evidence as to what the vote was at this precinct must be the testimony of the voters themselves, and they have not been examined.

PINTLALA PRECINCT.

The officers of election at this precinct consisted of three Republican inspectors, two Republican clerks, one Republican United States supervisor, William G. Gaskin, and Samuel M. Duncan, United States supervisor on the part of the Democrats. Now, upon the testimony of Gaskin alone, it is alleged that one E. P. Holcombe came into the room where the election was being held before the polls had closed and substituted the fraudulent for the genuine box, carrying the genuine box off with him. If this were true, some of the other five Republican officers of the election would certainly have had knowledge of it, and could have been examined by contestant to support the evidence of Gaskin, and the necessity for corroborating his testimony must have appeared, when in reply to a question as to whether or not he had been expelled from the legislature of Alabama for bribery (R., p. 207), he says:

I decline to answer any further questions on that subject, because I do not think it is right.

Holcombe had died before the testimony was taken, and the only political friend of contestee present, Mr. Mason, is examined by contestee to rebut the testimony of Gaskin. Mr. Mason says (R., p. 555) that complaint having been made that the boxes were changed, he "scrutinized the said box carefully, but could perceive no difference in it." He also informs us that the inspectors one at a time went to dinner, leaving the box in charge of the other two, and Mr. Gaskin admits that he was not present when the boxes were changed. The inspectors counted the ballots in the box and did not reach the opinion that the box had been changed until they found that, although there were 355 names on the poll-list, there were only 354 ballots in the box. In their return (R., p. 550) they state this as their reason for not believing the box containing the ballots to be the correct box, but they do not say in their return that they saw the box changed or that they noticed such a difference in the box as to satisfy them that it was changed. There is a mystery about the entire matter.

As the polls were not closed when the alleged change was made, how could a box have been prepared containing within one of the correct vote, and how could one man walk into a polling place and quietly carry off the ballot-box without opposition or objection on the part of the officers present, when six of those officers were opposed to the change? The ballots in the alleged false box were never counted. But admitting that the box was fraudulently changed as alleged, the ques

tion arises, what was the actual vote, and contestant fails to show this. To prove the vote he examines two witnesses, the Gaskin before mentioned and Samuel M. Duncan. Mr. Duncan, who was not an officer of the election, gives his opinion as to the vote, and bases it, to use his own language (R., p. 202), "on the number of persons voting the Republican ticket who were there to vote and the number who were there to vote the Democratic ticket."

But to show how uncertain his knowledge is, after stating the num ber of Republican votes to be about 225, he immediately changes his opinion and thinks that it might have been 325. Gaskins says that he kept an account of the vote part of the day (before half past three), but that the only means that he had of knowing how many votes were cast was by seeing the ballots as they were handed in. But the law requires that the ballots shall be folded when cast, and that they shall not be received when not folded, and Mr. Mason swears that the ballots were folded when voted (R., p. 555), thus sustaining the presumption of law to that effect.

We are left in doubt as to whether any vote from this precinct was included by the board of canvassers when estimating the vote of the county, as there is no testimony on that subject.

HOPEWELL PRECINCT.

The election at this precinct was conducted by only two inspectors' and as the law requires that three inspectors should hold the election, it was void (Howard vs. Cooper, 1 Bartlett, 334). There were two Democratic inspectors appointed to act, but the testimony shows (R., p. 551) that one of them could not serve because of sickness in his family, and that the other was prevented from serving by his duties as a practicing physician..

Nothing was returned from this precinct but a poll-list and a lot of loose tickets, the most of which appeared to be for Mr. Stevens, although they were not counted. Mr. Jones, the returning officer of the precinct, states that he delivered the box to the returning officer of the county in the same condition in which he received it (R., p. 546), and that the box when delivered to him was fastened with tacks, but not sealed. He also swears that most of the colored people of that precinct were for Mr. Stevens (R., p. 546), and in this he is corroborated by Mr. Sullivan (R., p. 551). The two inspectors say that Mr. Smith received 298 votes and Mr. Shelley 24, Stevens none; while Mr. McDuffie admits (R., p. 16) that the actual Republican vote of that precinct was 200, and the Democratic 100.

Now, if this election were not void, we have only the testimony of two inspectors, members of the same party, who performed their duties with the highest degree of carelessness, to use no harsher word, as to what the vote was; their statements being in opposition to the evidence of the ballot themselves and to the wishes of the voters. It is clear that in a case of this kind, where the ballots are attacked and where there is no return, the only satisfactory evidence of the vote must be that of the

voters.

BENTON PRECINCT.

The evidence is that there were two elections held in this precinct, from one of which a return was made, and presumably the vote was counted by the board of canvassers in estimating the result of the election in the county, but we are not informed what this vote was.

Now, contestant claims that this election was void, and that the election at the other polling place was a lawful one. We believe from the

evidence that the latter election was technically the correct one and that the former was not. But how is it possible to correct the vote of the county by adding thereto the vote cast at the true election (which has not been included in the vote of the county) and taking therefrom the vote cast at the void election, there being no evidence as to what the latter was. As there was doubt as to which was the true votingplace, it might be true that any number of the voters voted at both, as they would have a lawful right to do, because only one of the elections could be legal. It must be clear to any one that it is impossible to correct the vote of the county until it is shown by evidence what was the vote at the void election in this precinct.

NEWBERN PRECINCT, HALE COUNTY.

Merritt House, the Republican supervisor, alleges that as the ballotbox was being taken from one room to another after the polls were closed, and before the votes were counted, it was carried away and a false one substituted. This removal from one room to another was made with the consent of al! of the officers of the election. Robert Lee swears that the ballot-box was not changed (R., p. 487). He was a Republican inspector. In his testimony, Lee is corroborated by the testimony of M. S. Harron, a clerk of the election, and T. L. Huggins, an inspector. The testimony of House stands alone, unsupported by other evidence. But if the boxes were changed, and the ballots, if counted, not the actual ballots cast, we would be met with a great diffienlty in attempting to correct the vote-and this is, that it is not shown by the testimony what was the character or contents of the return by the inspectors of the election from this precinct, and what, if any, vote from this precinct was counted by the board of canvassers of the county in estimating the votes of the county. How, then, could the true vote be added to the vote of the county without first subtracting the false vote?

It is nowhere shown what ballots were in the alleged false ballot-box; the testimony does not show whether or not they were counted and a return of them made. If this obstacle could be overcome, the next inquiry would be as to the actual vote polled. Merritt House attempts to give an estimate (R., p. 301), but admits (R., p. 305) that he kept a "tally" of only eight votes, and that he could not swear with any degree of certainty to the number of votes cast for contestant.

E. J. Lavender, who was not an officer of the election says that he stood outside the voting place and took down the names of 398 electors who voted for contestant; a list of those names was put in evidence, and although the number 398 appears upon it as a total, only 332 names are found in the list. Sampson Hill also gives the number of votes for contestant at 398, and puts in evidence a list of the persons voting, showing 133 names and 395 tallies, though the witness states upon the paper that the total was 399.

It is plain that the testimony of these witnesses as to the vote cast for contestant was not based upon the account kept by them, but upon an agreement reached by them subsequent to the election. Testimony like this cannot be substituted for the testimony of the voters themselves as to how they voted. It will be seen how impossible it is from this testimony to arrive at a satisfactory conclusion as to what the vote was.