Show MANDATE WRIT DENIED Necessary to Count AH theVotes to Determine Results SO JUDGE BARTCH RULES Ii i WIlD HEARinfOr ON THE WRITS OF PhoumrTIO rv PROGRESS I Mintbr of VitncsBC3 Examined JVitIL f L foxv o Pro > lnr Thai ihe Eqi11t n oxcti fat iUo OPMrd Pre Clnat IVcpe Stuffed Kanlc BumcH Was Sufcjootei to n Good Deal of JOBltlnc and if He Hadnt Been Good XatupGcL Somebody Would 2Iaro Got Hurt Judge Barton yesterday morning delivered de-livered Judgment in the cases of the petitions of Join Henry Smith and George R Emery for writs of mandate to compel the members of the Utah commission to Issue them certificates of election as delegates to the constitutional consti-tutional convention from the Third precinct of Salt Lake The cases were heard on Monday evening and his toonor now denlel the petition TIle Oniuioa in the 3tnndntc Cascn The opinion delivered by his honor RvasL J s follows W e two cases were heard last evening on writs of mandate to compel com-pel the Utah Commission to issue certificates cer-tificates to the relators and the only < jucstion presented was as to whether the Utah Commission when 1 discrepancy discrep-ancy appears on the tally sheets or the returns have a right to canvass all of the ballots relating to that particular ticular offices or whether they are conI j fined to camassing the ballots simply j BO far a the particular person is con ctrned t whom the discrepancy refer I have mad a careful an examination examina-tion of this Question as time would permit and the point involved Is ftafiicl in a part of section 256 of thee the-e 15ed Statutes 1S8S S fa a material ma-terial lows in this decision it red as fol lowsBut But if the right of any person voted for any office i in any way affected then the cleric and said members of the county court shall open the bal lot from sid precinct and canvass the same so liar a to determine the rights o the person whose office may be affected This eton continued the court gave the member of the county court and the county clerk the right to gob go-b hlnd the returns and canvass the iiallats when a discrepancy occurred on the face of the returns which affected the rights o any person affected The Question then occurs Can they deter jnlriev the rights cf the person whose i ffic may be affected by pimply canvassing can-vassing the ballots in relation to such I penson where the discrepancy appears It i j same office a number of candidate can-didate all on the ticket to be elected to the same office Whichever number num-ber receives a majority < jf the votes ito i-to be declared elected I would seem quite difficult t determine just what the effect of a erroneous count would be and what it would lead to 1 might be possible that those receiving the very highest number of votes had received re-ceived votes that belonged to the one receiving the lowest number of votes end I am disposed to hold that where a discrepancy appears upon the face of the returns which entitles the Utah Commission to go into the ballot boxes at all that they have the right then to canvass the Totes relating t the office of-fice and for the candidates affected by such office I think the statute however how-ever does not contemplate that when the two offices ars different For instance in-stance in the case of a sheriff and a county clerk ii discrepancies should appear as to the various candidates the sheriff they ivould have no right I although the names of the parties might appear on the same ticket t canvass the votes of the other candS dates In determining the discrepancy which might arise in the candidate sheriff But here the candidates are all for the same office all struggling for their election as to that and as the supreme court of this territory has held that a discrepancy on the face of the tall sheets would entitle them to go Into iie ballot boxes and canvass the votes of such office I think that their construction would also be in line with what I have indicated On the face of the r lurns In this case showing a dis creppcy I think the parties have a righlrto make a canvass under the decision de-cision of the supreme court Of course the supreme court holds that the Utah Commission as I understand their opinion have the same power as the county court had formerly While I disagree with them on that point yet their decision Is authoritative Attorney P L Williams We understand under-stand then that these writs are denied de-nied Judge Bavtch Tes the writs of mandate man-date are denied X TIio Prohibition Cages Judf e Powers then asked that the prohibition cases be now taken up but Judge Miner wanted them continued con-tinued till 2 oclock some of the petitioners peti-tioners witnesses being absent Judge Bartch As to the writs of prohibition I must say the opinion of i the supreme court is not a full on I that subject as I would have liked They intimate that the writs would Me but hold there is no necessity for them By referring to the decision In the writ of mandate I did not understand under-stand that that question was raised before me at the time I had no understanding under-standing that the defendants set up the writ of mandate as a bar to the writ of prohibition in the proceedings But It appears it was so presented tote to-te supreme court and they have so held but that the writ of prohibition would lie Judge Miner said it would take a day or two to try the ° prohibition cases Judge Bart h answered that he must leave for Parowan on Friday morning and unless the cases were finished by thart they would lave to g overPowers J J over-Powers insisted that the hear ngicrttiwith proceeded with and a1tcY some further conversation thee the-e was taken u J It was firsi mutually agreed that the testimony admitted In the Smith case should apply In the Emery case also ind thfcn Attorney Ogden Riles read the petition for the writ Counsel for the petitioners he said would offer to prove that the ballot boxes had been stuffed that votes which ought to be counted and were counted upon the returns for John Henry Smith had been taken out and false ballots substituted We ask counsel added Mr Hlles C1to agree If it be admissible at all that the evidence taken In the man dat cases last night may be taken here Judge Powers We have no objection lIon to tat Judge BartchThat includes the tally sheets Attorney Hlles Yes sir Attorney P L Williams by way of emended answer next asked leave to plead the issues and judgments of this court In the mandamus cases as t bar to these proceedings The court assented to this Xreave was hen given Attorney Hlles to amend the complaint and affidavit In prohibition by the setting UP of the Jfact of the appointment nt by the Utah commission of an Intermediary board KnQ their return C E Rick en ilvfe StnnI 1 Rich Tras the first witness lled and replying to Judge Riles Bad of the Judges of election be was one judgC e1ecton at3l 1 i the Third precine tEl A s 1 II Holland was there acting as clerk but he wag not a sworn officer Judge Powers objected to this last question as irrelevant and argued thereon at some length discussing the question of the particular power of the Utah commission on which he said the court had already passed The writ of prohibition he said was the counterpart of the writ of mandate Attorney HUe said he could not prove everything in a breath The question was a general one Te court admitted the Question subject sub-ject to objection Witness was then asked how Fat lana got there He said someone telephoned tele-phoned to the Utah commission for further assistance and IHr Folland was sent Witness appointed FoUnd a clerk with the understanding that he had that r h When the canvass was made at the close of the polls there were present conducting the same the three judges Messrs Pugsley Goodfellow and witness Folland and another man named Tyson stood by looking on When the ballots were canvassed the constitutional box was locked after beIng fastened within Tyson did not have the custody of the box at any time so far a he knew Witness took the bOA with him when he Ieft went to the Democratic refreshment re-freshment room placed it on the table and left It in charge of Sergeant Katz who held no official position in the election elec-tion No oath was administered to him Witness left the box in Itatzs charge maybe from twenty minutes to half an hour but he himself had the key all the time He took the box home and kept It under a table in his dining room until Dec J when he delivered de-livered it at the Utah commission offices of-fices A seal was then placed upon it Attorney Hiles When you had concluded con-cluded the canvass was there any disagreement dis-agreement between your tally lists the poll lists and the registry lists in your poll in respect to the number of votes cast for John Henry Smith Question objected to but admitted subject to objection We did not compare them answered an-swered the witness I There was a broken key in the third poll broken by John Reed he believed but not in tIe box at the first poll I There was one key for each bOA and these were delivered to 3essrs Letcher I and Parks at the Utah commission with the boxes They were attached to the boxes by a piece of wire Witness I never saw this box again after it was delivered I transpired from witness subsequent evidence that there 1sequent were two boxes the constitutional and the county Was there anyone else present when I you left the box with Katz asked Mr Hiles Witness said yes half a dozen or more Republicans and Democrats He I had no reason to believe that the I boxes were changed in his absence Now Mr Rich since that election have you any Information and knowledge knowl-edge that that boxthe constitutional boxhas been tampered with by the I extraction of ballots that were cast on election day and the substitution of other ballots No sir answered the witness above the objection of Judge Powers He further said he knew the box had not been tampered with up to the time he turned it over to Chairman etcher and Mr Parkes The tally sheets were shown to wit ness who said that so far as he could see they were now In the same condition condi-tion as on the evening of election day The blank tally lists were stolen from the pollroom during the day Have you any reason to believe that these marks this list do tally on not represent the number of votes that were In the box for Smith that day Witness said he had not The same answer applied as to Mr Emery Is It not a fact that you separated the straight Republican ballots into pies and the straight Democratic ante an-te scratched ballots into other piles Yes we did Judge Powers crossexamined the witness who said there was only one tally sheet kept at poll 1 while the votes were being counted This was because somebody had made away with the blanks during the day Mr Good fellow the Republican judge kept the sheet There was some trouble on the count of the territorial votes Was the dispute with respect to the way in which Goodfellovr kept the taUyn tallyWitness Witness said it was Polland did not receive the ballots at the window at all nor did he touch them in any way None touched the ballots at he canvass can-vass in the evening except the three judges Witness had no thought of any one tampering with or changing the ballot boxes No one went into the diningroom at his house where the boxes were Kept besides his own family fam-ily He was confident they were in precisely the same condition when delivered de-livered up to Messrs Letcher and Parks as when they were locked up after the canvass on polling day To Attorney Hiles witness said that Hank Barnes accompanied him to the Utah Commission building when he took the boxes there Is it not a fact that Hank Barnes the presiding judge of poll 2 had your box at his house and that you had his at your house Laughter Witness said it wae not and denied that any such change was made while he was absent In the refreshment room on the night of the count while it was Sergeant Katzs keeping Joopli Putdl Joseph Pugsley another of the Third precinct judges poll 1 was then called by Attorney HUes He testified to the method employed in as i counting I the votes and declared that he had no I knowledge or belief that any change was made in the first poll boxes after they were finally locked on election day Chniriunx LccJ1e > Chairman Letcher of the Utah Commission I Com-mission was the next witness In answer an-swer to Judge Miner he testified to the I delivering of the boxes two each by Messrs Rich and Barnes at the offices of the Utah Commission The keys were given to witness and he fastened them on the boxes which were then placed In a private room the keyholes of the boxes being subsequently sealed Witness was also interrogated as to the reception and disposal of the boxes from the other polE in the Third precinct C < Ul t then took an adjournment till 2pm tf1eio Proc Un51 At 2 oclock ihe examination of Chairman Letcher was resumed Judge Miner asked witness if he had any conversation with Mr Rich about the key when the latter brought tine boxes to the commission Not at that time tiiat I remember At 3 oclock in the afternoon he was at the commission and said something about having broken the key In the boxDid Did you say anything before the board of canvassers appointed for the Third precinct but the broken key T may have mentioned something about i but I dont remember By Mr Williams Did you testify before the commission that be had told you about the broken key I called their attention to the fact that the box labeled poll l hw a broken key and aid something about Rich saying it was broken at Reeds pollGeorge George L Nye one of the three canvassers can-vassers appointed was asked if he had taken testimony in reference tote to-te Third precinct and If Mr Letcher was examined and what he had testified testi-fied to in regard to the broken key Sir Williams objected and the objection ob-jection was sustained and r Nye excused Judge Miner here asked for a bench warrant fo Sergeant Katz who was subpoenaed as a witness but was not present Judge Powers stated that on the previous evening Judge Miner had told the witnesses they woud not be wanted want-ed Jesse Goadfellow and other witnesses wit-nesses were also absent owing to the same cause His honor under the circumstances refused to issue a bench warrant but Instructed the bailiff to find the witnesses nesses and Inform them they were wantedIlanlc Ilanlc Burnett Testifies Henry Barnes took the stand and In reply to Judge Hiles said he m one of the judges of election in the Third precinct He was presiding judge at poll two the other judges were 0 HHardy and Marion Thomas There were two boxes one for the constitutional constitu-tional election and one for the county election The former was n new box and the latter an old one TThe boxes were empty when the polling commenced com-menced Witness wa not certain that he was present all the time when the tme constitutional Totes were beg counted count-ed He r hOW Vel took the ballots from the box and helped to separate them into three piles Republican Democratic and Populist Some part of the time during the count you were absent 1 Yes during most of the time when the count was going on Who did the counting then 1 Mr Hardy and Mr Thomas Where were you then Sitting by the stove Were there any onlookers Yes quite a few Mr Dykes Mr Sloan Mr Booth and others I When was the count completed Almost 2 a m on the 7th Were you present when the count was just finished Yes You were not feeling well when the count was going on 7 cunt No I was very unwell I was chilled and sleepy after being up s long Did any one take your place in making up the tallies Yes L deputed Mr C S Stephenson Stephen-son to do the clerical work for me You have no reason to believe tnp marks on the tally sheets are incorrect incor-rect have every reason to believe they are correct What did you do with the tally sheets l Put one in the box and nut the duplicate in an envelope to mail to the Utah commission I made a mistake In doing that What did you do with the boxes after the count afer Took them home and on November 9 delivered them to the Utah commission commis-sion sionWhere In your house did you keep the boxes In the sitting room Under what circumstances did you I take the boxes to the commission Mr Rich and I drove to my house I and got the boxes and took them to the commission and delivered them to Mr Letchfir i The Utah commission ordered them I I sent in Yes Did the order say to deliver them to Rich or to deliver them to the commission com-mission I dont remember but I delivered them to the commission myself Do you remember seeing or hearing anything about a broken key I saw no broken key and never heard of i except from street rumors Were you at any time requested to allow the box to be opened for the purpose of taking out or putting in ballots Several people said something about how easily I could be done but no one proposed to do it Did 3rou have a conversation with Mr Rich about it He was one of those who suggested how easily it could be done He said It would be very easy to alter the result re-sult in that way that it was too bad that McCune should be beaten as he had contributed largely to the campaign cam-paign fund I told him I was not in that line of business I thought he was jesting Was any suggestion made about changing the result after you had given up possession of the boxes uNo Did any one but Rich suggest to you that the result could be changed Yes a person whose identity I cannot can-not recall said something about it tome to-me at the Deseret bank corner Cannot you recall who it was I I were to see him I would know him but I dont know his name Do you know a man named Gren nan No NoWho Who was present when the manmade man-made the suggestion to you at the Deseret bank corner Elms A Smith one of the Jennings and others were present they all moved away but the one man and he said why cannot you Change the result re-sult and elect McCune When Rich spoke to you you understood under-stood what he meant I should say I did I dont know whether he meant i or not but 7 know what he said and could take only one meaning from I that the only way to alter the result was to stuff the boxesHow How soon after the completion of the count did you take the boxes home homI I left in five or ten minutes and I carried both boxes myself At the corner I cor-ner of the street waited till the car came got on to i with the boxes and went home Could any change have been made in the ballots after you took the boxes home 7 I is very improbable that any change could have been made Did anyone else besides those two persons make any serious suggestion about stuffing the boxes Lots of people did what we cal joshing I was getting It hot and coulnt turn a corner without somebody some-body Joshing4 me I I had not been very goodnatured somebody would have got hurt Why do you remember only the two men In particular who made the suggestions sug-gestions I cannot say Did Rich say anything about his being requested by someone else to suggest to you about stuffing the boxes No nothing at all of the kind Did Rich ever refer to the matter afterwards Yes he told me I was foolish in talking as I did He said that through I a rumor had got around that he wanted me to stuff the boxes He said my talking that way would give rise to false rumors and people would put a wrong construction on what lie had said After the ballots were placed in the boxes and before you took them home what time elapsed while the tallies were being made up before you took jou the boxes home About two hours Were you out during that time Yes once or twice Could the boxes have been tampered h 4 with during those two hours I Is probable Crossexamined by Judge Powers witness said he was more or less of n practical joker but nQt always a successful suc-cessful one A great many people had Joked him a good d a about the election elec-tion asked Tilm how drunk he was and why he hadnt made a better job of the business He had replied to some of these that I he was going to steal le would steal for himself not for the benefit of anyone else He wasnt drunk on the night of election At 2 or 3 oclock In te morning he needed a 4 < jolt pretty badly but wasnt drunk Moroiii Tllml Moroni Thomas examined by Judge lilies said he was judge of election at poll 2 didnt remember how many I straight tickets were voted and how many w re scratched Had jotted It down but lost the paper and couldnt remember There was witness thought a difference differ-ence of eighteen or twenty between the number of straight Democratic and straight Republican ballots cast The difference would not exceed twenty witness was sure about tha Witness signed tIe tally sheet and I the sheet being presented to him he said it was now the same as when he I signed I Were the votes correctly counted I at your poll and correctly entered on the lists asked Mr Miles I Yes replied witness Crossexamined by Mr Williams What function did you perform when it came to counting the votes Hardy and J counted the ballots together to-gether as they were taken out of the boxes and separated them Into straight and scratched I did the calling part of the time Mr Stephenson made up some of the sheets Oscar H jHnrfly O H Hardy the other judge at poll 2 in reply to Mr Miles said there were 501 votes counted at first but there were 504 on the list the other three ballots were found In the box As far as witness could recollect there were 195 straight Republican ballots and 37 scratched 223 straight Democratic ballots lots and 20 scratched There were 21 Populist ballots cast Witness believed the account as made up by the judges was correct Crossexamined by Mr Williams witness wit-ness testimony was not changed Hiram E Bootli H E Booth said he was a candidate candi-date for election in the Third precinct pre-cinct on the constitutional ticket Was present during the counting of the votes all the time and kept an account of the votes as counted At poll 2 there were 201 straight Republican Re-publican votes and 219 straight Democratic Demo-cratic votes 27 scratched Republican and 20 scratched Democratic votes according ac-cording to his count John Henry Smith was only scratched once or twice and Emery was not scratched at aI1 Witness was present when the tally sheets were made up and signed Crossexamined by Mr Williams witness said he paid close attention to the counting of the ballots Had not handled the tickets himself at all but was near enough t see the scratches on the tickets Jesse Goo I eIIov Jesse Goodfellow one of the judges at poll 1 said he kept the poll list Witness believed the votes as marked for Smith and Emery were correct He marked them as called out by the other judges Crossexamined by tie Williams The witness said the system adopted by them was to count all the straight ballots and then make marks on the sheets in suffi dent number to correspond with the total ballots counted At no time during the count was the question raised that witness wit-ness had marked three votes too many for John Henry Smith The scratched ballots were counted one by one and marked as they were counted O L 5tci l nrin C L Stephenson the gentleman who acted as a substitute for Mr Barnes at poll 2 testified that he kept the tally sheets a portion of the time He made no marks but what were represented by ballots and the sheets as made up by him were correct His out of the ballots bal-lots was 201 straight ano SS scratched Be publlcan Democratic 21fl straight and 1 scratched Crossexamined by Judge Powers he said he was not sworn as an official to keep the score correctly He was there originally as a watcher for Mr Treweek who wa a candidate Mr Barnes asked him to keep the tally sheets for him He denied that Mr Barnes was sitting by the stove when the constitutional ballots were being counted Witness averred that Barnes was present all the time when the ballots were being counted and 1 Barnes testified he was not Barnes was mistaken Towards the end when the tally sheets were being made up Mr Barnes might not have been present all the time The straight ballots were counted and then the tally sheets were made to correspond with that number EH A Follana E A Follanfl examined by Judge Miner Mi-ner said he wa present when the votes at the first poll were being counted Do you know what became of the ballot bal-lot boxes after they were closed I helped Mr Rich to take them home Were the boxes left in the tent before be-fore being tat n away Yes for about twenty minutes Where was Mr Rich then In the school house Whose care were they under while In the tent Nobodys In particular that I know Of Who was In the tent at the time Several people XIr Katz Mr Pugs ley and others In about twenty minutes you and 3Ir Rich took them from the tent Yes Did you notice any Indication of the bojies having been opened while In the tent tentNo No Do you know 5f Mr Rich and Mr Barnes changed boxes No Did YOU tell Mr Moroni GJllesple that you had seen ballots nut into the boxes after they were closed NO Did you see any ballots put In the boxes No after they were closed NoWere you asked bY any one t put ballots in the boxes No Did you put any ballots In the bait or interfere with them > No I did not Did you see anyone Intelfere with them No Did Mr Rich make any suggestion to you about changing any of the votes 7 any No Did you have any conversation With Rich about the ballot boxes Yes he remarked on the next day that H A Smith was behind about seven votes and that It would be a easy mater mat-er t fir tlat Did he suggest how it could be fixed No Did Rich afterwards ask you not to repeat the conversation about fixing the ballot boxes fIxIng When I was subpoenaed as a witness winess he told me It was not necessary to tell any more than I was obliged to Did Rich say to you i you saw any thing for Gods sake not t say anything anytIng about It No I think not but he might have loneDid Did you tell R P Morris that Rich said he wanted to change boxes with Barnes r wIh I No Did you tell Moroni Glllesple that Rich had changed boxes with Barnes No sir Have you any knowledge of the box from poll 2 being opened at Richs house No Have you any information of any ballots being put in the boxes after they were D cvut No Crossexamined by Mr Williams wit ness said In reference to a conversation he had with Rich at the foot of the stairs In the Dooly block that he was passing hurriedly and Rich said it Is not necessary neces-sary for him to tell any more than he knew that was all that transpired at that time between witness and Rich W J Nevrmswx W J Newman one of the judges at poll 3 testilled that he had helped in making up the returns and to the bet of his knowledge and belief they were correct Mr Reed another judge bent the key of one of the ballot boxes in trying to open I He told Rich about It and Rich succeeded in opening it J n Recd J B Reed said he was Judge at poll 3 At that poll there were 1S8 straight Republican votes and 210 straight Democratic The lists were kept correctly There was no broken key in the box when it was delivered to the Utah commission Witness had the broken key but gave It lo Mr Robert Sloan and had not seen i since I morning Court adjourned till 10 oclock this |