Elbin v. Wilson

Robinson, J., delivered the opinion of the Court. This suit was brought by the appellee, a registered voter, under the Act of 1865, chapter 174, against the appellants, as Judges of Election, to recover damages for refusing his vote. At the trial below, the appellants challenged, for cause, certain jurors, upon the ground, “ that they had formed or expressed an opinion, that the defendants, as Judges of Election, ought to have received the votes of all registered persons without further question.” Whatever may be the rule elsewhere, it is the settled law of this State that, in order to sustain a challenge for cause upon this ground, it must appear that the juror has formed and expressed an opinion in regard to the merits of the case. Edelen vs. Gough, 8 Gill, 89 .

The office held by the appellants as Judges of Election, was one of a judicial nature, and in the discharge of its duties, they could not be held responsible for anything more than an honest and faithful exercise of their judgment. Bernard vs. Hoffman, 18 Md., 479 . The gist of the action, therefore, was, whether they had “fraudu lently, wilfully or corruptly” denied the appellee his right to vote, and the mere formation or expression of opinion on the part of jurors that the Judges of Election ought to have received the votes of all registered persons without further ques- ¹⁴³ lion, could not, in any just sense, be considered as an opinion in regard to the liability of the appellants in this action. They may have differed with the appellants as Judges of Election in regard to the manner in which they ought to have discharged their duty, without imputing to them fraudulent or corrupt motives.

The appellee’s demurer was, therefore, properly sustained by the Court. We concur also with the ruling below on the second bill of exceptions. In all cases involving the fraudulent intent with which an act is done, any fact, however slight, if at all relevant to the issue, is admissible in evidence. Waters vs. Duvall, 1 Md., 474 ; Mayor and City Council of Balto. vs. Williams, 6 Md., 235 ; Feigley vs. Feigley, 7 Md., 537 .

It is true, the mere fact that the appellants knew the appellee to be of different politics, may not in itself have been sufficient to have justified the inference of bias or prejudice on the part of the Judges of Election, or that they had corruptly rejected the vote of the appellee, yet, in an action of this kind, we think it was an element of proof properly submitted, together with other facts, to the consideration of the jury. We find no error in excluding the evidence offered in the third bill of exceptions. The appellee had been registered as a voter in conformity with the Constitution and laws of this State, and his registration as such was evidence of his legal right to vote. Constitution 1864, Art. 1, sec. 2.

Now, in an action against the appellants for corruptly depriving him of this right, they cannot, with a view to exempt them from liability, offer in evidence the declarations of the appellee made to other parties, tending to prove that he came within the disfranchising clause of the constitution of 1864. Resides, such declarations, if made, were unknown to the appellants at the time they rejected his vote, and could not, therefore, have had any influence upon their action. The fourth and fifth bill of exceptions present substantially the same question. It is an unbending rule, that a witness testifying in regard to the declarations of a party, must state ¹⁴⁴ either the language or the substance of what was said.

It would be a dangerous innovation upon the well-established rules of evidence to allow him to give the impressions which the' party’s declarations made upon the mind of the witness. In regard to the sixth bill of exceptions, it may be stated as a general rule, that public policy requires the preliminary examination before the Grand Jury, as to the guilt or innocence of a party, should be secretly conducted. The obvious reasons of the rule are, first, in order to secure the utmost freedom of deliberation on the part of the Grand