Show mulct 0 cause of action LANGUAGE graham by and MONDAY AFTERNOON R K irvine was the next I 1 live at provo whore I 1 have beon for four and a half years I 1 came from halt lake I 1 am a merchant engaged in the busine ea of dry goods and notions I 1 waa in business last november 13 and prior what was the extent of your busi ness then to by the defense and objection su rained I 1 have known john 0 graham about 29 years I 1 last did business him a year ago what was the nature of it objected to by defense and hiob overruled mr came in and asked if we did not want a write up for I 1 answered no I 1 then called his attention to an alicle and said it waa false I 1 told hini there was no appropriation of alvo to the marshal was there any thin eaid or done that indicated mr grahams feeling he gave me to understand objected to by defense and objection he ccady believe 0 ejected to and objection sustained witness tell what was said dont put bour construction on it witness I 1 dont know how to do it he hemd and cawed hawed and gave me to understand it was polities cross I 1 can not re member whan he called on me it wag in december no one present he dimply aaker me if I 1 wanted a writt up I 1 cannot tell how often he hemd and cawed he said nothing that I 1 could understand HP aard something about I 1 waa a member of the city council mr sutherland called his attention to a number of bills of articles furnished city by the firm of irvine sc barney and waira ata issued in payment for barns they were ail identified aa between the firm and the city while witness was a of the city coacci coa oci moat of the bills mr irvine had audited ando kd both myself and battner were mem bors of the city council when these alla were prenter mr sutherland I 1 move now to strike out tle conversation with mr graham that witness testified to motion denied and exception noted mr warner offend in evidence all tha issues of THE wherein the alleged libi loui appeared and onerea 10 rad r ad them the court they are already in the an kaaua of TUB comment ine on the case filed aa offered in vi deuce also an issue publishing the answer to the libel suit the latter was objected to and the objection overruled the iffa rested mr sutherland bean makine a statement when ha vas interrupted by mr warner who wanted to introduce evidence a to the bood character of plaintiff the court held this could not be done except in rebuttal mr sutherland then proceeded to make an operine statement or defense attorney Att oraey sutherland made the op ning for the deleneye de lenee he baat ed that the publication ot the alleged articles waa done aa mattera of news for the benefit of the public nd that no malice or il will had caused the the defense would ebow that mr irvine had audited the billa of his jovn firm while he and the other aniber of the firm mr barney were members 0 the city council it also b that mr irvine and mr barney had acted violently one of em ha 1 assaulted the editor of the E Qs iRKa and the other bai assaulted a bu inin 11 pine the first witness called lor tha defense lia lesti nad to oi nene 0 elac loa in the eiith ward provo city at the last election alter the polls closed all the ballots were taken out and placed in the centre of a table aud the judges proceeded to count them first the envelopes were coupled and then the tickets and it was found that the votes with tle tally cheat then the democratic and re publican tickets were counte dand afterward the tr teti while count ing the latter found a ticket on which names had been written the printed names and the printed names haj not been scratched mr irvine eaid he he did not know how to count that ticket A scratched ticket was here shown to witness he aid he was not sure it way the samp but believed it was mr irvins laid the ticket down later another similar ticket was found some dispute arose aa to how these tickets awauld be counted mr irvine wanted them thrown out altogether it was finally agreed to count all the names except those written in and the two printed names for the same when the counts were complete mr irvino proceeded to roll up the two ballots and put them in hia pockets witness objected and told mr irvine he had ofin beu b eu a jude ot election and and navr dpn a u ige put bai ois ij his becore M irame said 1 I am attending to any tu aj you siuai attend to yours ho then put his in his docket balint BA Vint ahey are there ant chev answered yes mr irmino said well they will stay there and if not called for within 20 days they will be destroyed witness had not seen mr irvino out the ballots back after the count mi sutherland you had some talk with mr irvine after election mr pyne yea air he called at mv place of mr sutherland what did he aay mr ayue he asked me if I 1 ha 1 said he was carrying two ballots around in his pocket I 1 replied I 1 had eaid be put two babota in hia pocket he asked aam if I 1 had e iid be carried two bal 1 its in his and repeated the question alveral times and finally said shaking hia fiat in my face if TOU aay I 1 am carrying tao ballots in my pocket you are a d liar and it you will come out on the sidewalk I 1 will lick the out of you using louia very baa language mr sutherland well what was il mr pyne hesitated the court tell what it was mr ayue well if you aatto know he said he would lick the out of me on cross examination mr pyne stated that he had not seen two ballots put back into the box he was sitting ao be could see mi irvina all the time he knew mr irvine did not put the two ballots into ahe box mr warner how do you know T mr pyne because mr irame put the ballots in his pocket and said they would atay there mr pyne also testified that be had not seen mr irvien get blank and make duplicates of the two tickets in question john H mcewan testified to being present at the fiti ward place laet november watching the voting he was present when ane count took place and remembered the dispute about it wa decided to lay them aside for future consideration afterwards mr irvine rolled them up and put thorn in his pocket mr ayno objected and mr irvina said ha would do aa he d d pleased when the count was the deion of the scratched ballots again came up abw they had been counted mr 1 cioe pit them back in hia pocket a dinst to protest of mr pyne witness mr irvine said they would atay there but waa not buro he had not aaen mr irvine take the baliola out 0 bin pocket that evening on cross examination mr mcewan testified that be saw mr irvine d some fionnu on a table it was done oa writing paper but not on blank tick teta thay ware all taken away from that table ha had not seen mr irvine eo to tho window and gut two blank tickets and make dup of the tickets in question the deposition of judge J D jones was read and practically agreed with the testimony of tha two leat witnesses in regard to at the poling place deponent alao testified that he was present when the ballot box ws opened at thu court house last decem bar the seal and strings on the box were loose aid a id aoud easily be taken off the two ballots wih names written under the names were in ane box jolin watson testified to being present in the excelsior when mr called on mr evne he corroborated ro mr paned testimony in regard to tha conduct and of plaintiff on that mccamon camon oc james giove ol 01 THE testified fied taftt some time before last fall el pian he had a with mr baru y of irvine A barnev mr sutherland slate the difficulty objected to by plaintiff objection overruled mr olove then briefly tod of an adult made upon him by mr barney without any provocation he aa tes to writing moat of the articles complained of by and didenti I 1 fied three articles as ten by him balf upon cross examination he testified that be had not consulted manager graham ahn the first ballot box article waa written ha did not believe had read tho proof or bad renown any thing about it till it was published the bills floii irvine barey against provo city were nov r alkred in evidence moat of the aiila were 0 kd by mr irvine and were mae cut on the films bill deais manager graham testified that corn had bieu ahde to him by prominent merchants in regard to it vine barney doing with the city ahila they were members of the city council those merchants thought it was unfair for tham to have opportunity to bid lor city mi graham named a number of merchante tc editor clove was recalled and testified that similar complaints had made to him sam schwab testified that he was engaged in competitive business with irv me barney in provo he had heard of that firm furnishing oplies eu to the city ha nad never bad an opportunity to bid on city supplies had talked wita uther merchants in regard to thid con of affairs and they hd expressed dissatisfaction in regard to ahe matter mayor holbrook testified to seeing the ballot box opened at he court house in december last A string was wound several lemaa around tha box and sealed with sealing wax tae seal was broken loose from the box but remained attached to the string the seal and atrium could easily be taken off tha box and was pulled off bouce or before tha bor waa opened the two tickets in question were found in tho box chev we re democratic tickets and were found in a bunch of republican tickets on cross examination mr caruer asked you are the ballots were in the box air holbrook replied QS I 1 have been satisfied all along attorney sutherland eue estad that hia satisfaction arose from the fact that ho was elected which caused considerable amusement mayor holbrook further stated that mr irdine took two duplicate tickets from his packet and said were the tia ets he had carried witness admitted eining a statement to tho effect that ahe ballots were foaad in the b x he had signed this at the of V L holiday mr irdine was recalled by the defense he was asked it be had ever taken the ballot box lie fore tue arand jury and he eaid he had mr sutherland for the purpose of inducting indicting Indic ting mr graham mr arylie no in my own defense mr sutherland dont yon know thal the grand burp dont make deelse for peaola mr irdine well I 1 took the baiot box there in my own I 1 did j not know what the grand jury was do ing mr sutherland was the ballot box opened in the grand jury room mr irvine not while I 1 was there I 1 aint think it was assistant prosecuting attorneys rich ards testified that a charge of crim inal libel against J C graham had had been investigated by the grand jury last december but no indictment nad been brought the ballot box before the rand jury but was not opened this closed the for the defence nae mr irvine was the first witness an fn rebuttal ke asked the judge if be might stand while testifying he waa permitted to stand and than dramatically proceeded to show the position of tue table the judges and others while the count of ahe ballots was made judee jones waa standing behind witness when cams to the two tickets id question witness hesitated in regard to should be done with baem he finally agreed to let them go over a while and placed the ballots in bia pocket mr pyne objected and witness cakl yon attend to your work I 1 have charge of the ballots and if they are not called for within 20 days they will be destroyed just before the count was finished the two ballots were counted except the two written names and the two printed names for the same offices the witness next showed how he cat two blank ballots laid them down on the table and made copies of the two tickets laying the two names written on them enose two tickets were then placed in the ballot box and locked agn cross examination he testified that the box waa taken home and placed in his bed room ana not disturbed ti 1 taken before the grand jury then the seal was taken mr sutherland yon amt the ballots in your pocket till alter the coant mr arvino lea air air sutherland aid A id mr objected mr irvine he did mr sutherland why did you not listen to hie phorest mr irvine I 1 thought it was none of his mr sutherland mr pyne was a judge ot election was he not mr irvine yes sir mr sutherland why did yon think it was none ot his business mr irvine because he had his work and 1 had mine mr sutherland do yon still think you did liht in not listening to hia protest mr irvine yes sir wm testified to seeing mr irvino RO to a table aad get two ballots on which he wrote could not tell if be duplicated the ballots in question or not J beck testified be was a judge of election at the ath ward last november he had seen mr irdine take two tickets and write duplicates of the original tickets having the written names on and put the implicates in hia poc keie ahe original were put in the ballot box on crosa examination he denied tell ing mr sutherland in the morning that he had an impression the ballots were put in the box but was not eure he also denied making the same statement to mr graham last court adjourned till lodah at 9 TUESDAY V L halliday Halli dav waa called by plains tin and ackad as to the good reputation of mr irvine objected to by defense objection sustained was rp called by the defense Hs denied to stating to mr graham on saturday baat that he was not positive that mr irvine had put the back in the bos mr graham was recalled and testified to having a conversation with mr beck last saturday when he mr beck said he bad an impression that mr irvine pdt the ballot back but could not testify positively the defense rested A motion by the defense to make the boening and closing menta in the case was denied upon motion of plaintiff the third and fifth counts in ane complaint were dias missed those counts are the ones ing to business with the city this leaves the bol ot box business the only thing far the jury to consider counsel were kiven an hour on each side to argue the caad after instructions of aba court ahe jury retired and returned at five minutes to 3 and rendered a verdict in favor of the defendant no cause of action manager graham was surrounded by a number of friende both democrats and republicans who congratulated him upon the result of the trial and com mended the jury for the justice ol 01 the verdict |