157 Mass. 403 | Mass. | 1892
This is an indictment under St. of 1890, c. 423, § 131, charging the defendant with altering a ballot cast for the office of Governor, at the election held in November of the year 1891. The ballot was admitted in evidence, against the objection of the defendant. The ballots of the precinct where this particular ballot was cast had not been destroyed pursuant to § 101 of this chapter, the town clerk having been required by a justice of the Superior Court to produce them before the grand jury which found the indictment. Section 101, c. 423, St. of 1890, was originally enacted in St. of 1876, c. 188, § 1, as amended by St. of 1879, c. 203, and it appears in the same form in Pub. Sts. c. 7, § 34, as in St. of 1890, c. 423, § 101. The §§ 101 and 181, c. 423, St. of 1890, are the same as §§ 26 and 43, c. 299, St. of 1884, under which the decision in Commonwealth v. McGurty, 145 Mass. 257, was made. In that case the ballots had been destroyed pui’suant to the statute, and the court admitted secondary evidence of what was on the ballot. In the case at bar, the ballots having been preserved, the ballot itself was admitted in evidence. It is argued that the words “ until the requirements of law have been complied with,” found in § 101, c. 423, St. of 1890, refer to the provisions for retaining the ballots where notice is given of an election contest, or an application is filed for a recount under § 103, 104, or 105 of this chapter, and that when the ballots are not retained for these purposes they must be destroyed by the clerk; that the time having expired for retaining the ballots for any of these purposes in the present case, neither
The remaining exception was waived at the argument.
Exceptions overruled.