dissenting.
I do not concur in the general finding of the court in favor of the •contestee. I am entirely satisfied, from careful consideration of such •evidence and data, as the obstructive and suppressive methods pursued by many of the witnesses allowed the court to obtain, that the eontestor received a clear majority of the votes cast by voters having a legal domicile in the common pleas subdivision, composed of the counties of Delaware, Knox and Licking.
In addition to the illegal votes eliminated from the count, the court found eleven other persons who had cast illegal ballots, they not being legally domiciled in the township, precinct or ward where the ballot was cast, each one of whom, on being afforded an opportunity, refused to enlighten the court or to give any testimony concerning the material facts, if he voted at the November election, for whom he voted or even to advise the court of the fact to which, if either, of the two political parties, presenting candidates for the office of common pleas judge, he was a member of, or affiliated with.
The refusal was based upon the ground — the alleged ground — that •a truthful answer would have a tendency to incriminate.
It was clearly shown that each of them voted in the subdivision, at the election of November 5, 1901. It was also made to appear, by undisputed and competent evidence, that all of them were affiliated with .and were classed and regarded by their fellows and persons interested in polities and keeping watch over the political field/ as undoubted members of the party whose candidate the contestee was.
This fact standing alone, possibly, was insufficient and did not, to .•an absolute certainty, point to the candidate for whom the votes were ■cast; but in view of the fact that each of these persons, who alone'knew the exact truth, and who, contrary to the good and wholesome advice given them by the chief officials of the university, to tell the truth and the whole truth, without fear, as there was no danger of prosecution, deliberately and persistently refused to aid the court to a right decision, in view of the presumptions arising from certain established facts, and •of other facts appearing, including the conduct and demeanor of each ■of them in the presence of the court, • and of their manifest desire to say *782only that which would benefit the contestee; I am of the opinion the-evidence was of such consistence, significance and weight, as to justify and make imperative a finding that each and all of them voted for the contestee.
Five other persons voted, it was clearly made to1 appear, for the contestee; and I am of opinion that the evidence adduced concerning their former domiciles and the temporary character of their presence in the judicial subdivision warranted and required the finding that neither of them was legally domiciled in the township or ward where the votes were cast.
These sixteen votes, all of them, I think, should have been deducted from the total vote of the contestee.
In each case, however, the court was of opinion the evidence was-not sufficient to establish the fact claimed, and the vote as canvassed and returned by the supervisors of election, was, so far as these votes-are concerned, not disturbed but allowed to stand; and upon these-grounds I base a dissent to the general finding in favor of the contestee.
In all other respects, I fully concur in the rulings and judgments announced.