ple, was one of the officers of the election. The appellant, who was between 21 and 22 years old, and at the time also a cripple, on crutches, was the second person offering to vote. There were present three of the McCord family, and McCaffery, who was a sonin-law of one of them. We infer from the evidence, although it does not expressly appear, that there was something of a feud between the McCords and McCaffery on the one side and the two Ryans on the other. When appellant offered to vote, one of the McCords challenged his vote upon the ground that he had sworn some time before, at an election in the city of Hanford, that he resided there, and demanded that he be sworn. His father directed him to swear his vote in, and he said he would do so. At that junction the McCords charged appellant with perjury. As to the exact language used, and as to how many joined in the charge, the testimony is conflicting. George McCord testified that he himself said: "Yes, I don't think you have any regard for your oath, and I believe that you would swear to anything." Other witnesses swore to much rougher language. In reply to the remark of George, the appellant called him a liar, there also being a conflict as to the exact language used by him. George then advanced towards appellant, who, George says, had raised his crutch above his head, and had advanced as if he intended to strike. This the appellant denies. Before George had advanced more than a step or two, he was caught by a man named Beckerlie, and for a few moments George and Beckerlle engaged in a tussle which resulted in both falling on the floor among the school desks. In the meantime another of the McCord party had struck appellant over the head with one of his crutches with such force as to break the crutch, and another had knocked the father, J. O. Ryan, down, for the alleged reason that he had put his hand towards his hip pocket, and it was supposed that he was about to draw a pistol. J. O. Ryan was struck and kicked several times, and was very roughly handled. The appellant, after quite a fight with others of the party, finally got out of the schoolhouse, having freed himself from McCaffery, who was on his back, by rubbing against the casing of the door. When appellant got out of the house, he went to his wagon, which stood a short distance away, and, getting a pistol from under the cushion, returned to the front of the house. At this time J. O. Ryan was outside of the house. Appellant testified that, as he approached the house from the wagon, a shot was fired from the house, and that his father told him that he was shot, and that George McCord had shot him, and for him (appellant) to shoot, and "pop it" to George McCord. Several shots were then interchanged between appellant from the outside of the house and George McCord from the inside, or at the door. One

of appellant's shots penetrated some part of the woodwork of the building and killed McCaffery. One of George McCord's shots hit J. O. Ryan, making a wound which caused his death a day or two afterwards. There is a great conflict of testimony as to whether the first shot was fired from the house, by McCord, or at the house, by appellant. George McCord testified that he heard shots before he got loose from Beckerlie; that he heard McCaffery say that he was shot before he went to the door; that he went to the door after three shots had been fired from the outside, and saw appellant raising his pistol to fire again; that he (George), after getting to the door, fired his first shot at appellant; that he then saw J. O. Ryan with a pistol in his hand, and heard him telling appellant to fire; and that he (George) then fired at J. O. Ryan. Soon afterwards appellant and J. O. Ryan went away. There is a conflict of evidence

as to whether or not J. O. Ryan had a pistol at any time during the melée.

The foregoing is a mere skeleton statement of the affray. The filling up would be an immense quantity of conflicting testimony on many material points. An examination of the mere cold, lifeless transcript tends to leave a doubt in the mind as to whether or not appellant was properly convicted, or whether, at the most, he was guilty of any crime higher than manslaughter. If, as he returned from the wagon,-knowing how his father had been treated in the house,-a shot was fired from the house, and he was told by his father that he was shot, he had reasonable grounds for believing that the life of his father and himself was in danger, and he had the right to defend either. If, however, when he returned from the wagon, the affray was over; if no shot was fired from the house until after he had himself shot; and if his father and himself could have walked away without further danger, and he shot out of revenge,-then he was guilty. The determination of these questions depended upon a variety of absolutely contradictory evidence given by numerous witnesses; and in such a case the conclusions of the jury, and of the judge who refused a new trial, must be taken as final. They not only had better opportunities than we have to pass upon the credibility of witnesses, and to weigh the evidence, but it is their exclusive province to do so, under the law, when there is a mass of evidence to both sides of an issue. We could not rightfully set aside a verdict merely on account of a doubt which we might have of its correctness. We could set it aside only when it clearly appeared to us to be wrong; and this we cannot say of the verdict in the case at bar. Judgment and order affirmed.

We concur: GAROUTTE, J.; HARRISON, J.; TEMPLE, J.; VAN FLEET, J.

(108 Cal. 101)

TEBBE v. SMITH. (Sac. 19.) (Supreme Court of California. July 12, 1895.) ELECTION CONTEST-EVIDENCE-INTRODUCTION OF

BALLOTS-MARKING BALLOTS-CONDUCT

OF ELECTION.

1. Where a statute prescribes a mode of preservation of ballots, on proof by a contestant of a substantial compliance therewith, the ballots are admissible to overcome the prima facie correctness of the official canvass.

2. Where, in a contested election case, the ballots are admitted in evidence on proof by the contestant of a substantial compliance with the statute prescribing the mode of preservation, the burden is on the contestee to show that the ballots have in fact been tampered with, or have been exposed so that they might have been tampered with, and a naked showing that it was possible for one to have molested them is not sufficient.

3. Where, in a contested election case, the ballots are introduced in evidence, the question whether they have been tampered with is one of fact, for the jury.

4. Pol. Code, § 1197, provides for a margin on ballots one-half inch wide, at the right hand of the names, so that the voter may clearly indicate, in a manner afterwards provided, the candidate for whom he votes, and directs the clerk to have printed on it, "To vote for a person, stamp a cross (x) in the square at the right of the name." Section 1211 provides that any ballot not made as provided in the act shall be void, and shall not be counted. Section 1205 provides that the voter shall prepare his ballot by making a cross after the name of the person for whom he intends to vote. Section 1215 provides that no voter shall place any mark upon his ballot by which it may be afterwards identified as the one voted by him. Held, that ballots with crosses placed opposite the candidate's name, but without the square, should be counted as votes for the candidate opposite whose name the mark is placed.

5. Under Pol. Code, § 1215, providing that no voter shall place any mark upon his ballot by which it may afterwards be identified as the one voted by him, a ballot with the letter "J" written in pencil in the blank space left for the insertion of the name for justice of the peace is void, and should not be counted.

6. Pol. Code, §§ 1160, 1162, provide that the polls must be opened at sunrise, and kept open until 5 p. m., and that a ballot box must not be removed froin the polls, or the presence of bystanders. Held, that the votes cast at a precinct where the polls were not opened till 10 a. m., and the ballot box was taken by the election officers with them to dinner, are void, and should not be counted.

7. On all the ballots cast at a certain elec tion there appeared, written on the blank space under the office of justice of the peace, “G. G. Brown Republican." The evidence showed that the writing was all done by the same person, but did not show who did the writing, nor whether it was upon the tickets when they were put in the voters' hands, and that there was but one person in the precinct lawfully assisted in marking his ballot. Held, that under Pol. Code. § 1211, providing that any ballot which is not made as provided in this act shall be void, and shall not be counted, all the ballots, except the one of the voter lawfully assisted, should be rejected.

In bank. Appeal from superior court, Siskiyou county; J. F. Ellison, Judge.

Action by George A. Tebbe against Clarence S. Smith, contesting defendant's elec tion to the office of county superintendent of schools. From a judgment for plaintiff, defendant appeals. Reversed.

Warren & Taylor and L. F. Coburn, for appellant, cited the following authorities: McCrary, Elect. 291-293; Coglan v. Beard, 67 Cal. 303, 7 Pac. 738; Kreitz v. Behrensmeyer (Ill. Sup.) 17 N. E. 242; Fenton v. Scott (Or.) 20 Pac. 98; Albert v. Twohig (Neb.) 53 N. W. 583; Powell v. Holman (Ark.) 6 S. W. 505; Bechtel v. Albin (Ind. Sup.) 33 N. E. 970; Kirk v. Rhoads, 46 Cal. 398; Whittam v. Zahorik (Iowa) 59 N. W. 61; In re East Coventry Election (Pa. Quart. Sess.) 3 Pa. Dist. R. 377; Louck's Case, Id. 127; Sego v. Stoddard (Ind. Sup.) 36 N. E. 201208; Taylor v. Bleakley (Kan. Sup.) 39 Pac. 1045; Richardson v. Jamison, Id. 1050; State v. Walsh (Conn.) 25 Atl. 1; Kearns v. Edwards (N. J. Sup.) 28 Atl. 723; Spurgin v. Thompson (Neb.) 55 N. W. 299; People v. Seale, 52 Cal. 71, 621; Russell v. McDowell, 83 Cal. 70, 23 Pac. 183; Attorney General v. McQuade (Mich.), 53 N. W. 944; People v. Board of County Canvassers of Onondaga Co., 129 N. Y. 395, 29 N. E. 327.

Gillis & Tapscott and James F. Farraher, for respondent, cited the following authorities: Hartman v. Young (Or.) 20 Pac. 17; People v. Livingston, 79 N. Y. 288; O'Gorman v. Richter (Minn.) 16 N. W. 416; 6 Am. & Eng. Enc. Law, 425; People v. Holden, 28 Cal. 133; Dorey v. Lynn (Kan. Sup.) 3 Pac. 558; Coglan v. Beard, 67 Cal. 306, 7 Pac. 738; Blankenship v. Israel (Ill. Sup.) 24 N. E. 615; McCrary, Elect. 291-293; People v. Burden, 45 Cal. 241; Coglan v. Beard, 65 Cal. 58, 2 Pac. 737; Kreitz v. Behrensmeyer (Ill. Sup.) 17 N. E. 235, 242; Fenton v. Scott (Or.) 20 Pac. 98; Albert v. Twohig (Neb.) 53 N. W. 583; Powell v. Holman (Ark.) 6 S. W. 505; Bowers v. Smith (Mo. Sup.) 20 S. W. 101; In re Vote Marks (R. I.) 21 Atl. 962; In re Sharon Hill Election (Pa. Com. Pl.) 3 Lack. Jur. 286; Lay v. Parsons (Cal.) 38 Pac. 447; Spurgin v. Thompson (Neb.) 55 N. W. 299; State v. Russell (Neb.) 51 N. W. 465; Sego v. Stoddard (Ind. Sup.) 36 N. E. 204; Parvin v. Wimberg (Ind. Sup.) 30 N. E. 790; Inglis v. Shepherd, 67 Cal. 469, 8 Pac. 5; Louck's Case (Pa. Quart. Sess.) 3 Pa. Dist. R. 127; Coffey v. Lyman, 92 Cal. 137, 28 Pac. 91; Coffey v. Edmonds, 58 Cal. 521; Wyman v. Lemon, 51 Cal. 273; People v. Board of Sup'rs of Dutchess Co. (N. Y. App.) 32 N. E. 245; State v. Saxon (Fla.) 12 South. 218; Sprague v. Norway, 31 Cal. 174; Minor v. Kidder, 43 Cal. 237; Preston v. Culbertson, 58 Cal 209; People v. Seale, 52 Cal. 71, 621; Russell v. McDowell, 83 Cal. 70, 23 Pac. 183; People v. Cook, 59 Am. Dec. 468; Cleland v. Porter, 24 Am. Rep. 273; Piatt v: People, 29 Ill. 54; Board of Sup'rs v. People, 65 Ill. 360; Fry v. Booth, 19 Ohio St. 25; Soper v. Board (Minn.) 48 N. W. 1112: Farrington v. Turner (Mich.) 18 N. W. 544; Whipley v. McKune, 12 Cal. 360; State v. Nicholson (N. C.) 9 S. E. 545; McCrary, Elect. § 128; Finlay v. Walls, 4 Cong. Elect. Cas. 378; Bragdon v. Navarre (Mich.) 60 N. W. 277; Lindstrom v. Board (Mich.)

54 N. W. 280; Allen v. Glynn (Colo. Sup.) 29 Pac. 670; Schneider v. Bray (Nev.) 39 Pac. 326.

HENSHAW, J. Appeal from the judgment, taken within 60 days after its rendition. The evidence is brought up for review by bill of exceptions. By the official canvass of the supervisors, Smith was declared elected over Tebbe to the office of county superintendent of schools of Siskiyou county at the last general election, by a plurality of one vote. Tebbe then instituted this contest. The result of the judicial count was to increase contestant's total vote by three, no change being made in the number of votes accredited to contestee, and accordingly the judgment of the court declared contestant to be duly elected.

1. The first point urged is that the court erred in overruling contestee's objection to receiving the ballots in evidence. The evidence showed that the ballots and returns reached the county clerk through the proper channels. The sealing wax on some of the packages was broken when they were received from the express office. Other seals were broken in handling. The packages were placed on top of a large case in the clerk's office, and there remained, in the condition in which they had arrived, until the completion of the canvass by the supervisors, when they were put into three gunny sacks, each sack securely bound and sealed, and placed under the clerk's desk, where they remained until produced in court. Upon being opened, they were found to be in the same condition as when they were sealed by the clerk. There had been no opportunity for any one to tamper with the ballots, and in fact they had not been disturbed. They were left alone only when the office was closed and locked. During office hours they were never left alone, excepting upon one occasion, when the deputy stepped out for "a minute and a half," leaving one Robertson in the office. At that time the ballots were in the gunny sacks, and neither the sacks nor the ballots had been disturbed. Tebbe, the contestant, was a deputy clerk during this time; but he was never left alone in the office, and was given no key to it. We cannot see anything suspicious in this last circumstance. Upon the contrary, it reflects credit upon the prudence of the clerk, and the fair dealing of all concerned. Knowing of the impending contest, they took all reasonable precautions to avoid exposing either the ballots, or contestant's connection with them, to any suspicion. The principles of law and the rules of evidence governing cases such as this have been so often declared that a review of the many authorities is unnecessary. Those curious or interested in pursuing the subject will find in the reporter's notes, preceding, many instructive cases collated by the industry of counsel. Suffice it here to say that while

the ballots are the best evidence of the manner in which the electors have voted, being silent witnesses, which can neither err nor lie, they are the best evidence only when their integrity can be satisfactorily established. One who relies, therefore, upon overcoming the prima facie correctness of the official canvass by a resort to the ballots, must first show that the ballots, as presented to the court, are intact and genuine. Where a mode of preservation is enjoined by the statute, proof must be made of a substantial compliance with the requirements of that mode. But such requirements are construed as directory, merely, the object looked to being the preservation inviolate of the ballots. If this is established, it would be manifestly unjust to reject them merely because the precise mode of reaching it had not been followed. So, too, when a substantial compliance with the provisions of the statute has been shown, the burden of proof shifts to the contestee, of establishing that, notwithstanding this compliance, the ballots have in fact been tampered with, or that they have been exposed under such circumstances that a violation of them might have taken place. But this proof is not made by a naked showing that it was possible for one to have molested them. The law cannot guard against a mere possibility, and no judgment of any of its courts is ever rendered upon one. When all this has been said, it remains to be added that the question is one of fact, to be determined in the first instance by the jury or trial judge; and, while the ballots should be admitted only after clear and satisfactory evidence of their integrity, yet, when they have been admitted, this court will not disturb the ruling unless we, in turn, are as well satisfied that the evidence does not warrant it. In this case we do not think the ruling was erroneous.

2. Nine ballots were received and counted by the court for contestant, which were marked with a cross, not in the square at the right of his name, but in the marginal space to the right, thus:

120 George A. Tebbe.....X......Democrat

It is urged against the ruling that the ballots were not marked as required by statute, and that the marks so placed served as distinguishing marks, and rendered the ballot void. Pol. Code, §§ 1215, 1211. The provisions as to the marking of ballots are, in their nature, mandatory. Attorney General v. McQuade (Mich.) 53 N. W. 944; People v. Board of County Canvassers, 129 N. Y. 395, 29 N. E. 327; Taylor v. Bleakley (Kan. Sup.) 39 Pac. 1045; Ellis v. May (Mich.) 58 N. W. 483; Lay v. Parsons, 104 Cal. 661, 38 Pac. 447; Whittan v. Zahorik (Iowa) 59 N. W. 57. But as is said in Bowers v. Smith, 111 Mo. 45, 20 S. W. 101, "all statutes tending to limit the citizen in his exercise of the right of suffrage should be liberally construed in his

favor." If we should find a provision in our statutes requiring the voter to mark the cross in the square to the right of the candidate's name, we would feel constrained to adopt the rule and reasoning of the supreme court of Indiana, where such a provision exists, construing which the court said: "If we hold this statute to be directory only, and not mandatory, we are left without a fixed rule by which the officers of election are to be guided in counting the ballots." Parvin v. Wimberg, 30 N. E. 790. But our statutes contain no such mandatory provision. So far as they are pertinent to this discussion, the provisions are that "there shall be a margin on the righthand side of the names, at least one-half of an inch wide, so that the voter may clearly indicate in the way hereafter to be pointed out the candidate and candidates for whom he wishes to cast his ballot." The clerk is, in printing the ticket, to place upon it the following: "To vote for a person, stamp a cross (X) in the square at the right of the name." Pol. Code, § 1197. The mandatory provisions as to voters are found in sections 1205 and 1215 of the same Code: "He shall prepare his ballot by marking a cross after the name of the person or persons for whom he intends to vote * * and, in case of a constitutional amendment or other question submitted to the vote of the people, by marking in the appropriate margin a cross (X) against the answer he desires to give." Pol. Code, § 1205. "No voter shall place any mark upon his ballot by which it may be afterwards identified as the one voted by him." Id. § 1215. It will be noted that these sections make no mention of the square, and that there is not even an express direction to the clerk to place a square opposite the names of the candidates. The voter is only commanded to place the cross in the marginal space to the right of the candidate's name, and when he has done this he has complied with the mandatory provisions of the law. True, the statute contemplates, at least inferentially, the making of a square, and that the square is the proper place for the marking of the cross; but it has not made the doing of this a prerequisite to the casting of a legal ballot. The intention of the voter is as plainly indicated by the one marking as by the other, and, as was said by the supreme court of Rhode Island in construing a similar law: "Our opinion is that a cross placed in the margin of the ballot on the right of the names of the candidates, opposite a candidate's name, should be counted as a vote for the candidate opposite whose name it is placed, whether the margin have any square in it, or not, and, if there be a square in it, even though the cross is without, or partly without, the square. All that chapter 731 [Laws 1889] requires, to make the cross effective as a vote, is that it shall be inscribed in the right-hand margin, opposite the name of the person intended to be voted for." In re Vote Marks (R. I.) 21 Atl. 962. As to the last contention

upon this point, that the marks served to distinguish the ballots, it need but be suggested that it would not require much ingenuity or intelligence to place the cross, even within the square, in such a manner as would enable the ballot to be distinguished. When a legal mark is placed upon the ballot in a legal place, the ballot cannot be rejected because the mark, as placed, may serve some ulterior purpose. Section 1215 of the Political Code, in forbidding marks, does not include the cross legally placed. The ballots were, therefore, properly received.

3. The ballot from Sawyer's Bar precinct (Exhibit F) should have been rejected. It bore upon it the letter "J," written in pencil in the blank space left for the insertion of the name for justice of the peace. Doubtless, it may have been the intention of the voter to write a name, and he may have abandoned his intent after setting down the initial letter; but doubtless, also, the mark could serve as a distinguishing mark, and, being one having no lawful right upon the ballot, it renders it void. The case differs from Rutledge v. Crawford, 91 Cal. 526, 27 Pac. 779, where this court held that the impression (of printer's ink) upon the back of the ballot was as attributable to accident as design. Here the writing of the letter was an affirmative act of the voter. He had his remedy, having improperly marked his ballot, by calling for the issuance to him of a fresh ticket. Pol. Code, § 1207.

4. The account of the election at Lake precinct is a breeze from Arcady. The polls should have opened at 6:31 a. m. Smith received 13 votes in this precinct; Tebbe, 20. William Otey, called for contestant, testified: "On November 6th, last, I was at the polls of Lake election precinct, on the Fairchild ranch. * 串 ** I got there between eight and nine o'clock in the morning. Served on the election board in my father's place. When I got there, Fairchild, Henry Seale, and the hands working on the ranch were there. I do not remember any one else. The polls were opened, I should judge, some time near ten o'clock. We took an adjournment when we went to dinner. Took the ballot box with us. Fairchild, the old gentleman, carried it. He was one of the election officers. * * *The other materials-ballots and everything-we left in the poll room when we went to dinner. We left the ballot box on the table while eating dinner,-on same table. That ballot box did not pass into the hands of other persons. I think there were bystanders around the polls at the time we went to dinner. The house is about a hundred yards from the polling place. Between the house and schoolhouse there were some men. Some had voted, and some were working on the ranch. I think some other people took dinner with the board. When we were through, Fairchild carried the box back. No person was deprived of voting because the polls

were not opened earlier. I know that no one came there without voting that was entitled to vote." The law provides that the polls must open at sunrise, and be kept open until 5 p. m., and that the ballot box must not be removed from the polling place, or presence of the bystanders. Pol. Code, §§ 1160, 1162. It is the rule that mandatory provisions for the holding of an election must be followed, or the failure will vitiate it, while a departure from the terms of a directory provision will not render it void in the absence of a further showing that the result of the election has been changed, or the rights of the voters injuriously affected, thereby. Code Civ. Proc. § 1112; Russell v. McDowell, 83 Cal. 70, 23 Pac. 183. But the rule as to directory provisions applies only to minor and unsubstantial departures therefrom. There may be such radical omissions and failures to comply with the essential terms of a directory provision as will lead to the conclusive presumption that the injury must have followed. A substantial compliance with the terms of directory provisions is, after all, required. And such a substantial compliance is not had by strictly following some provisions, while essentially failing to observe others. There must be a reasonable observance of all the prescribed conditions. It is the duty of the courts so far to adhere to the substantial requirements of the law in regard to elections as to preserve them from abuses subversive of the rights of the electors. And, under this view, the question becomes a broader one than can be disposed of by answering that in the individual case no harm resulted. Thus, in Knowles v. Yeates, 31 Cal. 82, the contention of appellants was that, admitting that there was no fraud, and that the votes were cast by qualified electors, still the fact that in certain precincts the polls were opened, without reason, at long distances from the appointed places, was enough in itself to call for the rejection of the votes; and this court so held. Likewise, in the case of People v. Seale, 52 Cal. 71, where no question of fraud or injury was involved, but where, at an election called for voting a school tax, the polls were opened at 1 o'clock p. m., and closed at 6, instead of being opened at one hour after sunrise and kept open until sunset, as the law then required, this court, without hesitation, declared the election invalid. In this case we are quite willing to believe that the misconduct of the officers of Lake precinct was prompted by nothing worse than ignorance, and lack of appreciation of the responsibilities of their positions, and we may say, further,—for such is the evidence,-that no harm is shown to have resulted from their conduct; but, looking to the purity of elections and integrity of the ballot box, we are constrained to hold that conduct like this amounts, in itself, to such a failure to observe the substantial requirements of the law as must

invalidate the election. And, while reluctant so to hold in this instance, we are confirmed in the opinion by consideration of the fact that any other interpretation would add grave perils to the safe conduct of our elections, which are already harassed by dangers enough. The votes of Lake precinct should, therefore, have been rejected.

5. Upon all the ballots cast in Cecilville precinct there appeared the following, written in the blank space under the office of justice of the peace: "G. G. Brown-Republican." The evidence discloses that this writing was all done by the same person, and, further, that there was but one person in the precinct lawfully assisted in the marking of his ballot, under the provisions of the Code. Pol. Code, § 1208. The record, unfortunately, does not disclose who did the writing, nor whether it was upon the tickets when they were put into the voters' hands. Left, then, to the presumption of the performance of duty by public officers, it must be held that the officers put legal tickets into the hands of the electors, and that the writing was afterwards put upon them. But an elector unable to write can, under our present laws, have a name inscribed upon his ballot in only one legal way, and that is by pursuing the method prescribed by section 1208 of the Political Code. This requirement is clearly mandatory, since it is further declared that "any ballot which is not made as provided in this act shall be void, and shall not be counted." Pol. Code, § 1211. In Ellis v. May (Mich.) 58 N. W. 483, the supreme court of Michigan, construing a similar statute, held that inspectors of election had no right to assist in the marking of ballots, except in the manner provided by law, and that ballots marked in any other than the prescribed manner were void. In the present state of the evidence, only the ballot of the voter lawfully assisted should be counted. It must be held, therefore, that the other ballots of Cecilville precinct should not have been counted. What is here said is addressed to the evidence as it appears in the record. It may be that, upon a new trial, additional evidence will remove the objections now found.

The other points do not require consideration. They are either covered by what has been said, or do not involve error. But for the foregoing reasons the judgment is reversed, and the cause remanded.

We concur: TEMPLE, J.; VAN FLEET, J.; HARRISON, J.

MCFARLAND, J. (concurring). I concur in the judgment, and also in the opinion of Mr. Justice HENSHAW, except as to the Cecilville precinct. It will be observed that there is no evidence tending to show when "G. G. Brown-Republican," was written on the ballots. If there be a distinguishing