The judge decided correctly,- beyond all doubt, as to the return from Mayfield. As to the other questions; the object of an election is, that the person receiving the greatest number of votes in ‘his favor, shall have the office designated by the electors. The statute requires, that the election shall be by ballot, “ which ballot shall be a paper ticket, contáining'the' name of a person for clerk of said county.” (Laws, sess. 45, ch. 201, s. 7, p. 271.) The inspectors, after closing the poll, shall set down in writing the names of the several persons voted, for at any such election, with the number of votes, in words at full length. (Id. s. 9, p. 273.) *It was contended on the argument, that here was a distinction intended between the name on'the ballot and the name on the .pertifi-. cate of the inspectors ; but I apprehend it is the number of votes wkich are particularly alluded to, as necessary to be written in words at full length.
*106^ name, T understand to be a discriminative appellation,. °r ^eS7Sna^on an individual. This- is so ’ understood-universally, and the state canvassers, in the rules adopted' ^7 them, to which-the learned; judge at-the trial: referred,. so understand'it;- They admit- the. letters- Geov, .to. represent George. Why?-' because, by common consent,. they are admitted to represent that'word. So they receive Hen. for Henry, not because the man’s name- is Hen; but because Hem- is universally admitted- to represent Henry. The state canvassers, then, do not confine themselves to names written or printed at full length ; but they take-abbreviations. Why do they receive abbreviations when the act Says the ballot shall contain the name.? The answer must be because the abbreviation is evidence of the intent of the'voter. The intent" of the voter is" to be ascertained by the canvassers, not by examining witnesses or testimony of any description,, except that which is- inherent in the ballot itself. From this the canvassers adjudge that the. abbreviation represents the word, which- word represents-the name of the person voted for.
When we permitted an information to be filed in this, case, it was represented to us that the ballots containing the designation- H.. F. Yates,, were intended- for the -relator. The canvassers" had acted upon the idea that- they designated some other persom They had no means of examining witnesses, or- of receiving any evidence beside what- was upon the ballot itself. Courts and juries are. not so restricted. They possess more ample means to- determine any fact which is left in uncertainty; and,, in my judgment,, the learned judge erred in applying the same rule to an investigation by a court- and jury, which is applicable-to a tribunal who do not possess the power of examining witnesses upon oath:- From am inspection of the paper itself, it might well be doubted, whether H. F. Yates- represented *Henry Frey Yates, or some other- Yates whose Christian name was represented by the same lettersand the canvassers, as a board, were not bound to know tint no otker man. of the name of Yates Was-a canditate for tivt efikt& bf county clerk. But a court and jury can learn fro- ■? testimony., facts *107and circumstances which may lead to the irresistable conclusion that those votes Were intended for the rélator and no other. That the relator frequently subscribed his name H. F. Yates, that he- had formerly been clerk, arid then-was a candidate for that1 office, that people generally would apply those letters to the relator, and: that no other person-was known in the county to whom, those initials" were applicable, were facts which, if proven, would- justify the jury, in finding that those votes were intended and given for the relator.
The judge limited the relator to greater strictness than the canvassers. He required- him to prove that his name was H.- F. Yates; whereas the true question was,, whether those letters were abbreviations for his name? This is upon the same principle that Geo. and Hen. are allowed to represent George and Henry. Hen. is- not, strictly speaking, a name, as-Henry is; but'the fact-is, that the letters Hen. are an- abbreviation for Henry. Why then may not H. be also an abbreviation fór the same name ? It undoubtedly may; and so the question should have been put to the jury. A' new trial must therefore be awarded, to determine the question whether the votes given for H. F. Yates, were not given for the relatorthe costs to abide the' event-.'
Another propósitidtx was advanced by the judge, to which Í cannot assent; that you may not look beyond the ballot boxes for testimony, because of the danger of perjury and subornation of perjury. I consider the question fairly before a jury, and to be proved, like all other facts, by the best evidence which the nature of the case admits of. The elector' who put in' the ballot is certainly higher evidence, as the person designated by it, than the Opinion: of any other. Such elector is competent, unless he is to be excluded from principles of public policy; *and if any such principle excludes him, it must be the presumption that he will swear false. Deplorable, indeed, must be the state of society, where such a presumption is to be indulged against the only source of all legitimate authority, the electors, the people. I deny it, and enter my protest against it.
*108It is true, if the voter should swear falsely, you proha- % cannot convict him of perjury. But are we to reject-every witness who. comes to swear, under such circumstances, that, if he swears false, he cannot be convicted of. perjury? I know of no such rule of evidence. The circumstances under which a witness swears, are proper to be considered by the jury, in order to determine the degree of credit due to him; but not to determine his competency.
Suppose a case where the statute of limitations is pleaded : A witness swears that the defendant admitted the debt to him, and promised to pay it, no other person being present. Is he presumed to swear falsely, because, if he does, you cannot convict him of perjury ? On an indictment for murder, one witness swears that he saw the prisoner kill the deceased: no body else saw it, or was in a situation to' see it, or, to contradict the witness; must he be presumed to have committed perjury ? If this principle is to be en-grafted upon the law of evidence, we must always inquire, before a witness is sworn, whether he can be convicted of perjury if he swears falsely; and if not, he, must be rejected. The doctrine of this court is, let any man be a witness in the 'cause, who is not interested, nor morally disqualified. If this testimony is incredible, or is contradicted, let it be rejected by a jury; but never reject a disinterested witness, because you presume he will swear falsely. If this is to be presumed of one voter, it is so of all. What a picture this of civil society I of a representative- government![1]
Hew trial granted.
See The People v. Van Slyck, 4 Cowen. 297; The People v. Vail, 2 Wendell, 12; The People v. Seaman, 5 Denio, 409.