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(Evidence-rebutting testimony.)

aggregate of 1223, to have been given. Of course, the respondent found it expedient and proper to endeavor to shake the effect of that testimony; to accomplish this, he first produced persons who actually voted, whose numbers are long subsequent to Mr. Landon's; secondly, he called witnesses to show the appearance of individuals on the ground, whose names are on the list long posterior to Mr. Landon's; and thirdly, he called the assessor, to show that many of the individuals, whose names are supposed to be fraudulently interpolated on the list, have the same names as persons that he had assessed at their proper residences. In connection with the last point, the respondent produced the official list of voters, to prove that many of the persons assessed were of the same name as the person who purported to have voted posterior to the time when this fraud is alleged to have been perpetrated.

It is perfectly competent to rebut all the statements thus offered by the respondent, and such evidence would be strictly rebutting testimony. You can rebut, not only the positive testimony directly tending to sustain any position attempted to be taken in a judicial inquiry, but you can explain away the circumstantial testimony, by which your antagonist has proposed to support any position taken by him. As to positive testimony, I presume it is not disputed; for instance, a party swears he voted No. 1221, and his name is A. B.; you could certainly show, by a person having the same name, and duly assessed, that he did not vote, and that there was but one person of that name in the ward; this would not be disputed, as it would be the highest order of rebutting testimony. Can you not also contradict circumstances amounting to less than positive testimony? I think so; and we have done it with the last witness examined in this case; for example, a man named Winters is described as voting No. 947; Mr. Ringland was examined, and testified that he saw Mr. Winters on the ground, and that to the best of his recollection, he voted; he did not say he actually

(Evidence-rebutting testimony.)

voted, but it was a strong expression of opinion to that effect, though not a positive assertion of the fact. What inference, then, was proposed to be drawn from the testimony of Mr. Ringland? was it not, that Mr. Winters had voted? and if his testimony had not been explained, who would have hesitated in believing that Winters voted? When it became important to show circumstances countervailing this, how was it done? by producing Mr. Winters, who swore that he had not been on the ground the whole day; that took away the force of Mr. Ringland's testimony, and showed that he was mistaken in his impression. The admissibility of this was so clear, that it was not objected to by the counsel for the respondent.

But there was a third species of evidence offered—evidence tending to show the probability that the parties alluded to actually voted. The assessor being called said, he assessed certain individuals, among others, John Robbins (the witness now offered to rebut), a jeweller, living in a part of the district designated by him; the counsel, immediately after that, turned and said, Mr. Robbins' number was 957. Was not proof that Mr. Robbins was a duly-assessed inhabitant of Moyamensing, coupled with the name of the same person at 957, strong presumptive evidence to show that the John Robbins assessed was the John Robbins who voted at 957? suppose such a proposition submitted to a jury, to establish the fact, that John Robbins voted in Second ward, Moyamensing; what better presumptive testimony could you produce, than to show the assessment of John Robbins in that ward, and the fact that a person of that name voted? Would it not even be conclusive evidence of that fact, unless rebutted by testimony tending to countervail it, or unless the return were so utterly without credit, as not to be worthy of consideration? I say, it would. If this testimony have such a tendency, is it not competent to contradict it? is it not competent to show that, although the court might infer,

(Evidence-rebutting testimony.)

from the fact that a person voted at 957, named John Robbins, and that a person of that name was actually assessed, that vote was not given, because the John Robbins assessed was not the person who voted? To my mind, it is perfectly clear, that inasmuch as the testimony offered to show that John Robbins voted, was circumstantial, arising from the fact of there being such an assessed inhabitant of the ward, it is competent, by way of rebuttal, to show that the John Robbins so assessed in the ward did not vote.

It was said in the argument, that the assessor's list with the accompanying proof, was offered by the respondent for a different purpose; to contradict the effect of the statement of Mr. Miller, who alleged, he was not familiar with any of the persons contained in the long list referred to him, as inhabitants of the ward. But the testimony had another tendency; and no matter for what purpose testimony may be offered, if, in addition to its professed object, it have a tendency to establish something else, clearly affecting the case, the party on whom such testimony so bears, has a right to rebut that something; otherwise, I can imagine, that a man of talent, familiar with the conduct of a case, might introduce testimony for a collateral and secondary object, and yet, it might have the most direct and overwhelming influence upon the main question. Will the court, then, say, "we will not hear rebutting evidence, countervailing such testimony, because such countervailing testimony has not, necessarily, a tendency to rebut that for which the testimony in chief purported to be offered," although the court, at the same time, are conscious that it had another and more decided influence. To my mind, the proposition is clear, that the court should look to things, and not to words; they should look to the actual effect of such testimony, and rebutting evidence to meet that effect should be admitted.

Again, rebutting testimony is, after all, a thing dependent upon the sound discretion of the court, provided

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always, that the testimony is relevant; and the courts of Pennsylvania have gone very far upon this subject. To this effect, we have the authority of Chief Justice Tilghman, in Richardson v. Stewart, 4 Binn. 198, where he declares, that material testimony ought not to be rejected, merely because offered after the evidence is closed on both sides, unless it has been kept back by trick, or the adverse party would be deceived or injured by it. The same doctrine is asserted in Devall v. Burbridge, 6 W. & S. 529, where Judge Huston declares, that it requires a strong case, to authorize the absolute rejection of material testimony in any stage of the cause. Now, I myself, if I am justified in quoting my own experience, have admitted testimony after the case was closed; and for what? to advance justice and promote right; for those great purposes, the rule is, to receive material testimony offered at any stage, provided, the offer be made bona fide, under the stress of unforeseen circumstances, and unaccompanied by trick or fraud.

One more remark is called for by the line of argument of the counsel for the respondent-it does not follow, because testimony may be admitted in chief, it may not be admitted by way of rebuttal. The contrary is a matter of every-day practice; any judge who has ever tried criminal cases, to any extent, knows, that if a party be indicted, for instance, for assault and battery, and twenty witnesses be summoned to prove it, three of whom are examined, the court will say to the parties, "you can stop here;" and afterwards, if the prosecutor be found to be pressed by the defendant's testimony, his original testimony is then admitted by way of rebuttal. I refer to these doctrines, generally, to show that the admissibility of rebutting testimony, is always founded upon the sound discretion of the court, exercised for the promotion and advancement of justice, but guarded in such a way as to prevent the surprise of the opposite party; the court always giving an opportunity, as will be given in this case, of responding to

(Evidence-rebutting testimony.)

the testimony thus produced, if the party be, or appear to be, unfairly affected by it.

The essential ground, however, on which I rest my opinion, is, that the evidence offered is essentially rebutting testimony, and that it tends to explain away circumstances, which have been advanced on behalf of the respondent, in order to destroy or affect the testimony which has been produced by the contestant to sustain the allegations of his complaint.

Objection overruled.

CAMPBELL, J., dissented.

In Maryland, a judge of election, sued by a person whose vote he had refused to receive, having testified that he rejected the plaintiff's vote, because of his known disloyal sentiments, and that he was not governed by any bias or prejudice against the plaintiff; it was held, that to rebut this evidence, and show malice on the part of the defendant, it was competent for the plaintiff to prove, that the defendant, as register, had registered a person who, at the time, declared the same disloyal sentiments, for the expression of which the defendant claimed to have rejected the plaintiff's vote. Elbin v. Wilson, 33 Md. Evidence in rebuttal should be contradictory of that produced by the defendant, but not inconsistent with the plaintiff's evidence in chief. Husted v. Gardener, 28 Leg. Int. 140.

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