People ex rel. Orman v. Riley

15 Cal. 48 | Cal. | 1860

Baldwin, J. delivered the opinion of the Court

Field, C. J. and Cope, J. concurring.

This was a contest for the office of Sheriff. The only point we think it necessary to notice, is the objection to the admission of a muster roll offered, to show that some contested votes given at one of the precincts of the county, were given by soldiers of the United States army stationed there. The mere fact that the men voting were soldiers of the United States army, did not disqualify them from voting. But they were not entitled to vote unless citizens of this State and of the county for the required period before the election; and a mere residence, or sojourn in the county in this capacity, does not make them citizens, or prove them to be such. The rule, as fixed by the Constitution is, that the fact of such sojourn or residence as soldiers, neither creates nor destroys citizenship—leaving the political status of the soldier where it was before.

But the proposed proof was not admissible. The muster roll was a mere copy of a copy, and not authenticated in any such manner as to make it evidence of the facts which the paper asserts. We know of no case which recognizes the admissibility of such evidence, and we are not aware of any principle or rule which would justify it.

It seems to us that the proof that these men were soldiers, and not citizens of the county, is very simple. It could, we presume, be easily shown that these men came into the county as soldiers, and that they have been since acting as such, and that they were not citizens of the county before; and thus the presumption would arise that they were not legal voters. But the burden of this proof rests upon the party contesting their right to vote.

Judgment reversed, and cause remanded for a new trial.