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Show LEGAL DUEL IS FOUGHT AT OODEN CoDtestant Had Best of II Yesterday. Gained . Every Point That His Attorney Aimed For. Recount of Ballots Has Begun, and the Canvas Promises to Last Two Weeks. Special to The Tribune, OGD13N, Feb. 15. The contestant In the. duel for advuntago that has been the order or-der of the past three days In the Hamcr-HeweH Hamcr-HeweH contest suit had decidedly tho best of the light In today's proceedings, and gained every point that has been aimed for slnco Judge Powers made his request for a recount of the ballots oi Tuesday eenlng. Not alone did Judge Morse crant the motion. and make the order that the ballots be brought into court, but he overruled over-ruled every objection presented by tho conteatee In the lino of Its fence. Tho court and attorneys organized themselves Into a canvassing board and the tedious work of recounting the entire vote or xo much of It as will be admitted as evidence of Weber, Davis and Morgan counties, comprising tho Second Judicial district, was begun. The recount as far as proceeded pro-ceeded with shows some slight dlserepen-cles. dlserepen-cles. Rolapp apparently gaining two votes In the First district returns cunvassed, and losing three In the Second. Tho canvass promises to la9t three weeks or more and each lot of ballots brought Into the court will be put through the crucible of Inquiry as lo whether or not It Is Inviolate before It Is admitted as evidence. From today's pracllve It Is evident evi-dent that the county clerks and their deputies dep-uties and employees will be ialled Into court as witnesses. Forenoon Session. The morning session of the contest case wns devoted mainly to arguments on Judge Powers s motion of Tuesday to have the court make an order requiring the ballots to bo brought Into court for recount from "Weber, Davis and Morgan counties The motion was opposed at length by Gen, Kimball and Judce Ma-glness Ma-glness and defended by C. C. Richards. As Jlulge Maglness was In the middle of his argument the court interrupted him. apologizing ,for the same, and announced that ho was ready to rule without further fur-ther argument. Judge Morse s rule was In tho following language: "The presumption Is great that everything every-thing has been regular and the returns correct, but In the mind of the court there ought lo bo produced the best evidence, which Is the ballots themselves. Whcro the Issuo was presented by these allegations allega-tions and thesi denials, the court, with due regard to tho great hardship that It may bring to the courj and to the officers of the court, ought lo require the presentation presen-tation of such evidence. The court realizes rea-lizes the tcdlousne.ss of the proceeding, but the order to produce the ballots will Issue." Is-sue." Per agreement between counsel, on tho suggestion of the court, Under Sheriff Se-brlng Se-brlng was designated as the officer who should bring the ballots Into court It was also agrcvd that a representative of ench side In the contest should accompany accom-pany the officer. The matter was arranged ar-ranged with much - formality. Tho con-tcstec con-tcstec chose George McCormlck and the contestant selected Gilbert Belnap. Under Sheriff Sebrlng was called Into the courtroom and from the bench Jtidgo Morse, in the most Impressive manner, explained to the officer tho duties required re-quired of him, nnd solemnly admonished him that during the coming Investigation Investiga-tion he was to so guard bis charge that no person might find It possible to tamper with them. Demand for Ballots. These preliminaries arranged, the officer accompanied by the representatives, made formal demand on County Clerk David Mattson for tho ballots of Weber county, shortly returning to the courtroom with parcel Xo 1, which was said to contain the ballots from a number of election prc-cincLs prc-cincLs Judge Powers, as a preliminary, called County Clerk Mattson to the stand, who tcstiiicu as to tne condition of the parcel, par-cel, wrapped In brown paper, tied with twine, and sealed all over with tho seals of tho clerk's office, nnd tho manner in which It had been stored since he had assumed as-sumed tho offlco In January. Ex-County Clerk Charles R. Holllngs-worthi Holllngs-worthi now a member of the Legislature, was called nnd related how tho ballots were delivered to him after tho election: how they were stored until he went out of offlco In January, in cross-examination he stated that some of the envelopes containing the returns had come in torn and damaged, apparently by accident, and admitted that nil his deputies and clerks and some others had hnd free access to the vault where the ballots had been stored. Among these wa3 Mr. Hamer, at that tlmo official reporter of the court, and the contestant In the present case. Tho conltstee objected to the opening of the parcel and was overruled, noting Its exception to tho ruling. Opened the Parcel. Tho court then descended from tho bench and, surrounded by counsel for both sides and officers of the court, personally per-sonally opened the parcel. Tho parcel contained the ballots from first and st-cond Hooper. Burch Creek, Eden and Far West. ad each package was Identified by I-ir. Hollingsworth as tho original packages of ballots delivered to him by tho election Judges. Cross-examined tho witness had not ever fixed up or repaired any packages of ballots :U any time Before announcing tho noon recess the court naively asked If tho representative's of each side who had been selected to guard th ballots with thu officer, de-Blred de-Blred to remain with Sebrlng during tho recess. Both sides agreed that such strenuous diligence was unnecessary, but tho trio adjusted thu matter themselves bv securing a vault, buying three differential differ-ential locks and each of tho three carrying carry-ing bis own key. By this method the vault cannot be opened by any one of any two of tho custodians, and all three of them have to be present any tlmo access Is desired. Afternoon Session. Miss E, C. Erb was called and examined exam-ined as to manner In which the election returns were delivered and receipted for. Miss Erb is, and was under tho last administration, ad-ministration, deputy county clerk. Sho Identified a number of the packages which she had receipted for. and also those which others had received. She testified tes-tified that the packages were in exactly tho game condition now as when she had received them from tbo election Judges. Thu wltncos further detailed the manner In, which the packages wcro disposed dis-posed of as received and ultimately were stored In the vault, and stated that all employees of tho office, also attorneys and abstracters, had access to tho vault. Sho did not know of any instances where newspaper reporters had ever entered tho vault. Thla was during the cross-examination by Judge Maglness. who remarked: "Of , course not, you would naturally be sus- f plclouc of newspaper men and would not admit them." MIbc Erb was the clearest and most self-contained witness who nas yet been on the stand Judge Powers moved tho court that the bailout for first and second Hooper bo opened and counted. Objection was made by A. It. Hey wood on the ground that evidence had not been introduced to provo that tho ballots had been kopt undisturbed, untouched and Inviolate, and cited authorities to show that the burden of such proof was on the contestant. The evidence thus far, he contended, showed that every one except the contested had access to the returns re-turns since their receipt by tho county clerk. His contention was that tho whole of Weber county should ho Included In the order, and not alone tho two districts referred to in the motion, nnd he asserted that the manner of keeping the ballots had rendered them inudmlsslble as evidence. evi-dence. Judge Powers Replies. Judge Powers replied that he would move for the opening of nil of tho Webor county ballots as fast ns ovldenco could bo taken as to their receipt. Judge Maglness argued lo the court that no ono package could he opened until niter the contestant had proven that every package had been properly received and kepi Inviolate. The court dlifered diametrically from this view and overruled the objection. Gen. Kimball suggested that la the Interest In-terest of convenience the poll books be used In connection with the recount of the ballots. Judge Powers objected saying the ballots bal-lots wire the primary evidence. Tho court explained to Judge Powers that tho suggestion was in tho Interest of convenience and expedition. Judge Powers- "Yes, but the other side Is so technical." There was a titter among tho attorneys and Judge Powers continued "When tho Greeks come bearing bear-ing gifts to us we are suspicious." The suggestion wan adopted, however. His Honor Reads Ballots. His Honor descended to the body of the c( urtrooni and after appointing the clerk and reporter as tellers ranged counsel for the contestant on his right and for the. ccntestee on bis left. He then personally opened the packages of ballots from First Hooper election district and taking the ballots ono at a time, called the count to the tellers, passed the ballot to Judge Maglness Ma-glness and associates, who In turn passtd them to Judges Powers and Richards. The first four ballots were blank as to the Judgeship The count showed olghty-three olghty-three for Howell, thirty-four for Rolapp. lour blank ballots and one contested. This contested ballot was evidently Republican Re-publican but was defectively marked and argument as to Ifs admission or rejection will bo made later. The count shows a gain of one vote for Rolapp and possibly two, If the contestant can secure tho rejection re-jection of the defective ballot, in tho crlglnul canvass Judge Howell had eighty-live eighty-live votes m this precinct and the present status of this recount leaves him a loss of two votes In the Second Hooper there was one ole contested against Howell and three against Rolapp, but Howell gained a vote In some manner as the canvas showed a total or eighty-three votes, outside of tho one vole challenged, the same total as tn the original count. The Burch Creek count brought out cno challenge against Howell and three against Rolapp. Here are tho figures: OrlBlnal count. Ru-count. First Hooper District Howell 83 S3 Rolapi 31 31 Contested '.. '1 1 Second Hooper District Howell W M Rolapp 70 67 Contested ." I llurch Creek-Howell Creek-Howell 32 31 Rolapp Gt CI Contested 1 At the close of this canvass adjournment was taken until 9-30 tomorrow. |