A. I do not think there was. Q-His name was then printed on all the tickets-Republican, Independent, and Democrat? A. I think that the Republican ticket was left blank in places. I do not know, though. I am not sure but there was a number of tickets-some Republican tickets were not like other Republican tickets, because they never nominated a whole ticket. Q.-There was no other candidate for Sheriff, except Rogers? A.-I do not know now, but I think there was no other candidate. Q.-If there had been some one nominated, you would have been apt to know it, wouldn't you? A.-Of course I would; but what I knew then, and know now, is two things. Q-If there was but one candidate, what object would there have been in leaving the blank? A.-I do not know that it was blank. I think there may have been some names left blank. Q-Do you remember to have seen any ticket with the Sheriff's place blank. A.-I do not remember. There was a number, a variety of tickets, consequently I could not say. Q. Did you go with him to the polling place? A. Yes, sir. Q.-Did you go ahead of him, or behind him? A.-I didn't go with him at all, I went home. Q -You didn't go with him? A.-I did not go to the polling place with him at all; I went home. Mr. Edgerton-Do you state that the name, "Montgomery," was on both of the tickets which you handed him? A.-I think Montgomery was on both of the tickets. Q.-Did the Republican party nominate anybody for Sheriff in that county? A-I do not think they did. The Republican party only nominated two or three. Mr. Terry-I think that is admitted. Mr. Turner-I will ask you if you did not know that the Repub lican tickets in that county were printed with the name of the Sheriff blank? A.-I could not be positive; there was so many tickets. But I know that I gave him an Independent ticket, and also, I believe, a Republican ticket. I know that he was Republican in his sentiments. Mr. McGarvey-Do you know that you gave him a Republican ticket? A. I know that I gave him a Republican ticket, and I think gave him an Independent ticket, too. Mr. Edgerton-What name was generally printed on the Republi can ticket for State Senator? A.-Montgomery. Q.-Throughout the county, or in that precinct? A-Well, I am not conversant with what was done throughout the county. I did not go anywhere, and took no particular interest în the election at all; only went to vote. was generally Q.-What name was generally printed upon the ballots in that precinct for State Senator for the Independent party? A.-"Montgomery." Mr. McGarvey-Can you tell who you voted for on that day? Q.-I did not ask you what ticket you voted. Can you tell me whom you voted for? found in 14 Barbour, page 298. Also, the same case in the appellate Court, found in 4 Selden, page 82. I also desire to call your attention to this case, found in 55 New York Reports, page 535, dated January eighteenth, eighteen hundred and seventy-four. It may be proper to call your attention to the fact that in the State of New York the remedy given for contesting elections is by a case of quo warranto. Ours is by petition, which is similar in every respect. I will refer you to the People v. Pease, found in 27 New York, page 59. I will also call your attention to a case found in "Contested Elections of the Assembly of the State of New York," page 455; and on page 450 of the same book the same thing is done. On page 370 of the same book the same course is pursued. I call your attention to the case of William Williams v. J. H. Lyon; and on page 364, the contested case of Joseph Shock v. M. Hunderford; and on page 337, in the same case, they discussed the matter. On page 281, to the report of the committee; I will call your attention to that. [Reads.] On pages 258 and 259, the case of Snow v. Russell Smith; also, page 243 and the previous pages; also, page 164, the case of George T. Pierce v. Ebenezer Crosley; also, pages 119 to 124, Sanderson v. John J. D. Graff; also, page 94, Henry F. Jones v. Thomas Treadwell; and, also, to pages 55 to 58, all of the same book-("Contested Elections of the Assembly of the State of New York"). In that book, from first to last, we find the common course of procedure in practice in the Election Committee of that House is to send summonses out for persons, and put the witnesses. on the stand, and ask them the direct question: "For whom did you vote for the office?" and it was received by the Election Committee. In conclusion, I will call your attention to the case in 7 Lansing, page 277, decided in eighteen hundred and seventy-three, in the Supreme Court of New York. The committee here adjourned until Tuesday, January fourth, eighteen hundred and seventy-six, at seven P. M. TUESDAY EVENING, January 4th, 1876. Present-Senators Graves (Chairman), Pierson, Hilborn, and Mc Garvey. The Chairman-The question now before the committee is the admissibility of the testimony introduced the other night. Judge Terry will not be here, I suppose. I presume the contestant will take such a course in regard to the contest that it will be proper for the committee to rule upon the question now. Mr. Pierson I should think it entirely unnecessary to decide upon that question, considering that Ward has withdrawn. Mr. Turner I will submit an authority upon the question, that he has no power to discontinue the contest. The Chairman reads a communication from R. H. Ward, with drawing from the Senatorial contest, and giving his reason therefor Mr. Pierson-Did you say you had an authority that he cannot withdraw from the contest? Mr. Turner-Yes, sir; half a dozen of them. I will refer you first to The People v. Holden, 28 Cal. [reads]; also, Mann v. Cassidy. Mr. McGarvey-Mr. Chairman, I move that, whereas the contestant has withdrawn from the contest, we report in favor of the right of the sitting member to his seat by reason of the other party having withdrawn. [After discussion.] Mr. McGarvey-I withdraw my motion, and now move that the evidence before taken be received as evidence, and that we do report that we find from the evidence that the sitting member was duly elected. Mr. Pierson-I cannot vote in favor of that motion, because I am convinced myself that that evidence is not admissible. In this case, it is very true, it is a pure matter of form, yet I do not propose to have myself placed upon the record as voting in favor of the question that I cannot convince myself of the truth of. The question I was about to ask Mr. Turner was, whether he proposed to introduce any evidence to show that these ballots-outside of the fact of their being voted at the election-that these ballots were mutilated after they were placed in the ballot-boxes. Mr. Turner-We do propose to introduce that testimony. Mr. Graves-Can you have it by eight o'clock? My view of this question is, that the testimony offered by the respondent is admissible. Its weight as evidence, of course, will have to be considered afterwards. As to its admissibility, I have no hesitancy in deciding that it is admissible. The Chairman-The majority of the committee, then, rule that the evidence is admissible, and we therefore will consider it in. Mr. McGarvey-I move that we report that from the evidence we find that the sitting member, was legally elected and entitled to his seat. Mr. Hamilton-Before you pass upon that motion we will have testimony to offer which will tend to arrest-the doubt which is on the mind of your committee. The Chairman-What is the character of the affidavits, the same as the others? Mr. Hewell-No; these are the affidavits of officers of elections and of bystanders who saw the count made. The Chairman These affidavits are admissible under the stipulation. Have you the evidence of any witness tending to show fraud? Mr. Turner-Yes, sir, we have. Then the committee takes a recess until half-past eight o'clock. The committee re-assembled at eight o'clock and forty minutes P. M. Present-Senators Graves (Chairman), Hilborn, and Pierson. JAMES R. AULL, called for respondent and sworn: Mr. Pierson moved to exclude all persons from the room except the parties, their counsel, the witness in the stand, and the reporter. Carried. Mr. Pendegast I do not appear as an attorney in the case at all, but Mr. Aull has made some statements to me about what he proposed to testify to and wanted me to be present. Mr. Pierson-Is there any objection to Senator Pendegast remaining? Mr. Turner-No objection. Our sole object is this: that none of this testimony shall get out in any way, shape, or manner beyond the committee. That is our sole and only object. Mr. Pendegast-If the committee will allow me, I want to call the attention of the committee to this section [Section 304 of the Political Code], and distinctly say that Mr. Aull at this time, as at all times hereafter, will claim the protection given by this section. Mr. Turner-Mr. Aull, about what age are you? A.-Thirty-one. Q. Where did you reside during the month of September, eighteen hundred and seventy-five? A.-Modesto. Q-In what county? A.-Stanislaus County. Q-Were you at that time an elector of that county? A. Yes, sir. Q. Do you know the contestant here, R. H. Ward? A.-Yes, sir. Q-Were you in Modesto during the election held in September, eighteen hundred and seventy-five, at which Ward and Montgomery were candidates for the office of State Senator for the Fifth Senatorial District? A. Yes, sir; I was there. Q-On which side did you act or take part in? A.-On behalf of Mr. Ward. Q-After the election-at any time after the election-did you have any connection with the ballots-any ballot or ballots, or packages of ballots-cast at that general election? A.-Well, in what manner? Q-Had you any connection at all? A. Yes, sir. Q-State to the committee all the connection, and all the facts, connected with any transaction that you may have had in connection with them, right from the first? A.-Well, sir, the connection I had with them was to go with Mr. Walden to the Court-house. Q-Commence at the first, Mr. Aull, and state the whole thing, as if you had not stated it before to anybody? A. Right from the beginning, or shall I mix it up, and interpolate? Q.-State right from the beginning? A. I will tell from the beginning. Mr. Ward came to me on Sun day morning Q-State right here what Sunday morning? A. Well, it was some ten days after the election-I cannot remember whether the first or the second, I could not swear to which-and came to my room and woke me up in the morning, and told me he wanted me right away. At the time I knew nothing about what was to be done, or proposed to be done. We took a team and wen down to Mr. Walden's ranch, about eight miles, and there we met Mr. Walden. They had a private conversation of half an hour, I suppose, and we got in the buggy and came back to Modesto; got there about noon. In the afternoon, I understood from their conversation, they were going to proceed [?] and I was invited to participate in it; which I did, very foolishly. Mr. Walden came to me in the afternoon and told me that everything was ready, and about eight o'clock came to me and told me to get a room, which I did; got a room across the railroad track, back of the Race Track Saloon, on the west side of the track; and then I went with him. I went to the Court-house-the basement of the Court-house-where he slepthe and another party--and we got three or four packages of ballots. I think there were four precincts: Westport, Empire, Tuolumne City, and Turlock-four precincts. Mr. Pierson-What were those four? A.-Turlock, Empire, Westport, and Tuolumne City. The packages were opened and taken off the string. He took them off, and where the name of Mr. Montgomery was printed it was scratched off and Mr. Ward put in its place.. Mr. Pierson-In the presence of Ward? A.-No, sir; Mr. Ward was not present at all; nobody but myself and Mr. Walden. Q.-Who did the writing? A.—Mr. Walden. Mr. Turner-Where was it that this alteration took place? A. On the west side of the railroad track; the Race Track Saloon. Q.—Where did you first see the packages? A.-I saw them when I met with Mr. Walden, in the basement of the Court-house. Q.—Then what did you do? Where did you go with the packages of ballots? A.-Right to the west side of the railroad track. Mr. Graves-How far was it? A.-Three or four hundred yards? Mr. Turner-You went into the room you hired at Walden's suggestion? A. Yes, sir. Q.-What means did you use to open these packages? Q.-You say that you and Ward and Walden had some conversation returning from Walden's, by which you were invited to participate. Tell us what conversation you had, if any, that you remember. A.-I do not remember any particular conversation, at that time, that occurred; because I was not a party to it at that time. I had no knowledge of Mr. Ward-nothing particularly from him. Q-What was said by him at all about this matter? A.-Well, all that was said was that he was satisfied, the way the returns had come in, that he was beaten, and he was not going to be beaten. Q.-Did he say anything about fixing it, or anything of that kind? A. Yes, sir; that was the range; something of that purport. I cannot remember what was said. I cannot recollect in regard to the words, only what the general purport of it might be. I could not mention any particular words, only that the matter was to be arranged. Mr. Pendegast-I do not think there is any question before the Q.-In Modesto?, A. Yes, sir. 38: How was the package from Turlock? In what condition was en you first saw it? I do not remember. s-In relation to being sealed, or open? I could not swear. I think, though, that it was sealed. I am No, sir; there were none of the packages open. -In what condition was the package from Westport Precinet? -You are positive of that? -Yes, sir. Pierson-What motive had you for doing this? In seeing these ballots changed in that way? Q-Who was it occupied the room with Walden in the baseIn the first place, I cannot exactly tell why. I was a very of the Court-house? A.-Who with him? Q-Yes; you said the room was occupied by somebody with A. Yes, sir. partisan, and strongly interested, and I did not hardly count You were a strong partisan of Ward Were you paid anything for what you did at that time? Mr. Hilborn-Does Mr. Walden occupy any official position ?Turner-Was anything said about pay? A. No, sir. Not then. Not during the canvass. Mr. Graves-Had you to go into the room where the ballot am not speaking of the canvass, but at the time? got? A. No, sir. Of course it was understood that any show of doing anything Mr. Hilborn-They had been brought before you went there herson-Understood between you and Ward? A. Yes, sir. Q.-Was Lane there when you first saw them? Mr. Turner-Just state to this committee the reason you 'ou mean in the shape of influence in putting into office, or your mind. for taking the course you have pursued, just as furner I want to ask you, if at the time that this alteration though you had not stated it to anybody else previously. ig on, was anything said in reference to this Tuolumne Pre in the I thought and Mr. Branch; and the result of the thing would inevital. Walden said so? the matter should not rest upon them at all, and no suspicionilborn→About how many changes did you make in each upon them, and I was determined that they should not [sufferes, sir. vault was em? You e itself? desire to 35 A.-The desk they used. It was not in the vault. The vault was adjoining the main room. Mr. Hilborn-That was not the place where you found them? You found them in the basement, but restored them to the office itself? A. Yes, sir. Mr. Pierson-Do I understand that Judge Terry does not desire to be here at this examination? Mr. Hewell-He stated he would not be here. |