Anderson v. Winfree

To a petition for rehearing,

Judge Bennett

delivered the following response of the court:

The attorneys for the appellant suppose .that we misconceived the evidence relative to the votes of Cox and Cravens. They say: “We think the inference is clear * * * they had no understanding with the clerk and judge present, ‘ that when the absent judge arrived and all were sworn, they would ratify the act..’ ”

The language of the only witness, the clerk of the election, is: “I told Cox and Cravens the officers of the election had not been sworn; and they said they reckoned it was all right; that the officers could fix it when they came. When the officers were sworn, the attention of S. H. Underwood, the absent judge, was called to the votes of said Cox and Cravens, and their votes were counted as the other votes. The officers of the election knew Cox and Cravens were legal voters of said precinct.”

So we repeat that these gentlemen evidently voted with the understanding with the clerk and judge present, that when the absent judge arrived, and all were sworn, they would ratify the act, and they did ratify it.

The attorneys offer no objection to the propositions *612of law discussed and settled by the court. But they insist that we incorporate in our opinion the definition of citizenship, residence, etc., given by the lower court, which we and the attorneys alike approve, for the benefit of the profession. While we are thankful for the suggestion, we must be permitted to say, that the definition is substantially that given in the General Statutes and the Constitution' of the State, which are well known to the profession and easily understood ; and in the following of which one may fear no evil.

It is insisted that we should investigate the case with the view of correcting any error of fact occurring at the trial. We did; besides investigating the facts of the case, off and on, for several weeks, more than a week was devoted exclusively to them. We did not, however, go into an analysis of the facts in our opinion, for the reason that such a course would have spread the opinion over much paper to no purpose. And in the investigation of the facts, we were unable to say that the lower court had interpreted them against their proper weight.

It is insisted, however, that the opinion of the contesting board, as to the weight of the evidence, should receive some consideration here. It is a sufficient answer to that proposition to say, that we are not reviewing an appeal from the decision of that board. We are reviewing an appeal from the decision of a circuit judge, who was the trier of the facts of the case de novo.

It is insisted that the question of citizenship, residence, etc., is one of mixed law and fact; and, therefore, this court should review the whole case, uninfluenced *613by the finding of the lower court as to the facts. We think that the law fixes what residence, its place and duration, entitles an individual to vote; but whether such residence in fact exists is purely a question of fact. If the question was submitted to a jury, the court would instruct them, that, under the law, certain facts must exist to constitute a legal residence ; and the jury would be the sole judges of the .existence of the facts. And this court would not be authorized to set aside their finding, unless it was clearly against the weight of the evidence. And the lower court having clearly and correctly stated the law relative to residence, citizenship, etc., and having separated the facts and passed upon them from the stand-point that a well-instructed jury should, we feel bound, therefore, to test the findings of the 'court by the same rule that we apply in reviewing jury trials. Any other rule would not only be generally unsatisfactory, but often result disastrously. The witnesses, their relative standing, their passions and prejudices, their intelligence, are more or less known to the jury or presiding judge. On the other hand, w’e know nothing of these things. We might believe the evidence of Jack and Bill over that of Tom, because they are two to one, and their story is well told. Whereas, Jack and Bill might be most incorrigible scapegraces, and Tom a most estimable gentleman, and readily believed by all that knew him. Furthermore, if we set the precedent of reviewing the decisions of the lower courts upon mere questions of fact, and deciding without reference to their opinions, or only giving them just a little weight, then these courts had as well be abolished, if they could be, *614and address all litigation directly to this court. The evils of such a policy on the part of this court would be felt by. every citizen in the State.

The attorneys for the appellant aré not unknown to this court; and their utterances of high respect for the judicial department of' the State, and reverence for the laws, and their criticism of that class of persons in and.out of the profession who contemn judicial decisions that fail to accord with their particular views, and which tend to degrade the wholesome administration of justice by weakening the confidence of' the people, and thereby inciting them to lawlessness and evil deeds, is highly appreciated by the court. Therefore, we have deemed it proper, though compelled to overrule the petition, to write a response.