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(Objected to as immaterial and incompetent.) A. Yes. So far as I know, they were.
Q. Were the ballots sealed and put in bags, as required by law, at the time the commissioners received thom officially from the clerk?
(Objected to as immaterial.)
Q. Did you and the other commissioners count the ballots for the office of sheriff and compare the result of your count with the return of the vote as made by the board of canvassers.
(Objected to as incompetent and immaterial, and for the reason that the board were acting under an order of the circuit court of Marion County and enjoined to secrecy in the performance of their duty and not to divulge anything that was discovered or made known to any one, and that the report made by them to the court is the only evidence of what they did.)
A. My answer is that we did so count and compare, officially, the vote for sheriff.
Q. Did you find on that recount that the vote for sheriff, as made by said board of canvassers, was correct?
(Objected to as immaterial, for the reason that the return will speak for itself.)
Q. Was or was not a majority of said commissioners Republicans and supporters of Mr. Peelle for Congress, at that election?
(Objected to as immaterial.)
Q. Did you at that time count the ballots given in Marion County at said election for William E. English for Congress, and for Stanton J. Peelle for the same position ?
(Objected to as immaterial and incompetent, and for the reason that it was outside of the duties for which the witness was appointed by the circuit court.)
A. I did this voluntarily. I kept account of every ballot and looked at the tickets and counted them over, first on sheriff, and then went over in the second count—they were handled by fives—and then I noted the vote on Congress.
Q. Did you carefully examine and count every ballot?
Q. If you have that record please produce it, and read it, and attach it to your deposition as a part thereof.
(Objected to as immaterial and incompetent, and as an indirect attack upon the returns.)
A. (Reading): “In the election contest for sheriff of Marion County, Indiana, in the case of Lemon 18. Hess, I acted under appointment of the circuit court as a commissioner to recount the ballots received for that office at the general election held in that county November 7, 1882. The recount took place between the 23d and 27th of that month. At the same time I counted the vote for Congressman for that district, every ballot passing through my hands and being closely scanned by me, and of the ballots for Stanton J. Peelle for that office, 12,551 were of the kind commonly called card-board, or spring-back tickets; and the aggregate of all the ballots showed said Peelle's plurality over William E. English in that county to be 99 votes less than the number returned by the board of canvassers, making his plurality 443 without the vote of the second precinct of the twelfth ward of the city of Indianapolis, which precinct the board of canvassers returned as 98 majority for Peelle. My count embraced the ballots in all the election precincts of the county except the ballots in the second precinct of the twelfth ward, which could not be found; but the vote of that precinct was returned to the board of canvassers by the inspector of elections of that precinct as 98 majority for Peelle in said precinct. This 98 majority added to the aggregate of my count of the ballots of the other precincts would make Peelle's vote 541 more in Marion county than English's, being 99 less than the number returned by the board of canvassers November 9, 1882. "INDIANAPOLIS, November 28, 1882.
“AUSTIN H. BROWN.”
(The original will be found attached to this deposition as a part thereof and marked Exhibit I to the deposition of Austin H. Brown. P. C. H., notary public.)
(Answer continued). I made that statement out the day after the commissioners made their recount and made their official report, and have had it ever since.
Q. Is that a true statement of the vote cast in Marion County at said election as between William E. English and Stanton J. Peelle, as you found it at the time of the recount?
(Objected to as incompetent and immaterial.)
Q. Refreshing your recollection by that memorandum, what was the plurality of Stanton J. Peelle over William E. English in Marion County, as you found it by actual count of the ballots and of the return made of the second precinct of the twelfth ward, in Indianapolis, by said board of canvassers?
(Objected to as incompetent and immaterial.)
Q. Did any other person upon the occasion of that recount count all the ballots for
Q. Did you compare the number of the ballots with the number of votes returned on the poll lists?
(Objected to as immaterial.)
A. We did. We took the poll-lists and saw that there was a certain number of votes polled, and then we added the votes, counting the vote for sheriff and adding them together, and compared them with the book showing the total number of votes. We did that in the instance of every precinct; of course they would not agree because some of the tickets got the names scratched entirely off and it was counted as a full vote.
Q. Did you find them to agree? If not, what was the difference?-A. There were discrej ancies in most all the precincts.
Q. Were there more tickets than names on the poll-books?--A. There were in some instances; not many.
Q. In that recount did you find any ballot for William H. English for Congress?-A. There was one; in one of the precincts of the sixth ward, if I remember right.
Q. How did you count that ?- A. In my count I counted it for William E. English, supposing that to be the intention of the voter.
Q. In that recount did you find any ballots that purported to be Democratic tickets and contained the names of the Democratic candidates for the various offices, except that Stanton J. Peelle's name was printed for Congress in place of William E. English; and if so, how many ?-1. Yes, sir; I think there were not more than a dozen in the whole county got in the box of that character.
Q. How did these tickets count in your recount, as given by you in your statement of the result of that vote?--A. They counted for Stanton J. Peelle.
Q. Is the ticket I now show you the ticket to which you refer?-A. I think so.
(The ticket was marked Exhibit J to the deposition of Austin H. Brown, P. C. H., notary public, and will be found attached to this deposition.)
Q. What effect did it have upon the secrecy of the ballot, the voting of that Republican ticket at your precinct, if you know?
(Objected to as a conclusion of law.)
A. It was noticeable when one of those tickets came up you could tell it from any other. It had that effect upon the secrecy. I think the inspector could tell when he took the ballot that he had a Republican ticket in his band.
Q. I refer to the ticket headed - Republican Ticket," that I showed you some time ago.-A. That is the one you call the spring-back," as I understand the question; not to this last ticket.
Cross-examination by Mr. PEELLE:
Q. Have you not been very active in the interests of the Democratic party in this State for years?-A. Yes; I was not very active last year.
Q. But you have been an active politician?--A. I did not work at the polls last year.
Q. I will ask you to state at whose instance you kept an account of the vote for Stanton J. Peelle during the time of the Lemon-Hess contest.-A. Mr. William H. English came to me, I think it was a day or two before we commenced our duties there, and asked me to take an account of all of the so-called “spring-back" tickets-that is, the character of the tickets that have been explained in this evidence as such-and offered to compensate me for it.
Q. Did he do it?-A. He did.
Q. You kept an account of the matter at the instance of Mr. English ?-A. The matter of the vote between the two candidates I kept voluntarily myself. I did not ask a nickel for that.
Q. You kept the vote between Mr. Peelle and Mr. English ?-A. I did that voluntarily.
Q. Did you keep the total number of votes cast for Mr. English ?-A. Yes, sir; and the total number for Peelle, and the total number for Lemon, and the total number for Hess,
Q. What was the total number of votes, as counted by you, for Mr. English ?-A. I cannot say now.
Q. Have you not based in that statement simply the majority that was returned for Mr. Peelle as being 99 less by your count than was returned by Mr. English, as returned by the vote from the board for Mr. Peelle and Mr. English, basing it simply upon the vote as returned by the board of canvassers for Mr. English, and basing it upon the count for Mr. Peelle as made by yourself?-A. The board of canvassers showed a certain vote given for you and Mr. English. I took the vote and I counted and compared the two columns together and it showed there was 99 votes less, after deducting one from the other in the plurality than there was as shown by the board of canvassers. The count I made made that difference.
Q. Is it not a fact that you did not keep an account of the vote cast for Mr. English at all, but kept simply the account of the vote cast for Mr. Peelle?-A. I kept them both. There was scratches on both sides.
Q. You pretend to show by that statement you have made the vote cast for Mr. Peelle and Mr. English upon the basis of your count?-A. I do not understand the question.
Q. Is not this the fact: that the vote there that you claim that Mr. Peelle had less, was simply less than the vote as returned for Mr. English and not according to the vote, as counted by you, for Mr. English?-A. As reported by the board of canvassers, you mean?
Q. Yes, sir; is not that true?-A. It is just as I said. We would take up a precinct and we would count the vote for sheriff, and I would tally my votes for English as I went along; and when we got through that precinct I would refer to the tally-sheet and see what the vote was for Congressman and make a deduction, one from the other, showing the difference.
Q. Is it not a fact now that you did not detect or discover any mistakes in the vote of Mr. English, but accepted the vote as returned for him ?-A. No, sir; I gave Mr. English and you the benefit of everything. Your name was on a great many Democratic tickets, and I found his on some Republican tickets, and those I counted for you and the others I counted for him.
Q. I ask you again, if you have not, in the statement you made, based your estimate upon the return made by the board for Mr. English and upon the count made by yourself for Mr. Peelle?-A. They failed in his case. I took the board of canvassers and they have failed, and I took the vote as I counted it for both.
Q. Did you discover any errors against Mr. English in counting those ballots ?-A. Yes, sir.
Q. Is it not the fact that you did not take any note of them, but accepted the return as made?-A. No, sir; I took the vote both ways. The idea was to get at the correct vote.
Q. What was the difference in the return of the vote made for Mr. English and your count?-A. I cannot tell you the aggregate vote for Mr. English at all.
Q. Did you keep any account of the aggregate vote of Mr. English, or the mistakes made for or against him?-A. Yes, sir; I noted them as I went along, and that paper that I have presented gives the final result.
Q. I will ask you if it is not a fact that the paper you have read simply gives the errors that occurred to Mr. Peelle in the total vote cast for him upon which you give this estimate, and upon the return of the board of election for Mr. English? -A. That was not made of errors; that was the actual count of tickets.
Q. I ask you if the vote for Mr. English is not identically the vote you made your calcalations from ?-A. The identical vote as shown by the tickets counted ?
Q. Yes, sir.-A. Yes, sir. And so of you.
Q. The identical vote, as returned for Mr. English, corresponds with your count, don't it?-A. I do not get at the point at all.
Q. I want to know if it is not the fact that in the count that you made there you noted the errors as you went along, and it, when you got through, yon did not count the errors that were made for Mr. Peelle and accept the returns as they were made for Mr. English?-A. Do I understand your question, that I noted simply the discrepancies that were shown in the ballot and not the actual vote?
Q. The actual vote I am speaking of.-A. I did not put down losses and gains at all. I put down the facts as they were; the actual vote for Mr. English and yourself.
Q. What was the total vote, as counted by you, for Mr. English ?-A. I could not give you that. I have not got it.
Q. Was it not the same as returned by the board ?-A. No, sir.
Q. What was the difference?-1. There was some considerable difference, and both sides aggregated, as I have said.
Q. Didn't your count made of the vote cast for Mr. English correspond entirely with the vote as returned for Mr. English?-1. No, sir.
Q. By the board of canvassers ?-A. No, sir.
Q. What was the difference?-A. I took the majorities, as you would call it, and I show by that statement-and that statement is based upon facts-that when counted up there were 99 votes; you were given 99 votes more by the board of canvassers than the actual tickets gave you that I counted.
Q. I will ask you this: If the 541 votes there that you speak of being for Mr. Peelle is not 511 votes over the return made by the board for Mr. English, instead of your count?-1. It is 541 on my count. In that, of course, is this twelfth ward ballot. I gave the board of canvassers for that. I took that for granted as being the vote he had there.
Q. You say that, according to your count, Mr. Peelle had 541 votes over Mr. English. Now, do you mean he had 511 votes over the vote as actually returned for Mr. English, or over his vote as actually counted by you?--A. According to the board of canvassers you had a plurality over Mr. English or 640, and my count gives that 511-a difference of 99.
Q. That is the majority simply over the vote as returned for Mr. English, is it not, by the board of canvassers?-A. Well, it is two different counts, I take it. If you take theirs it is one way, and if you take my statement of the count it is different.
Q. Is not that majority for Peelle based upon your count as compared with the actual return for Mr. English by the board of canvassers ?--A. Yes, sir.
Q. I will ask you if it is not a fact that there was more than one hundred errors discovered in that count against Mr. Peelle?-A. In which count?
Q. That you discovered more than one hundred errors-errors in more than one hundred votes against Mr. Peelle on that count, as compared with the returns?-A. Well, there was some difference, of course. I suppose they showed errors of that amount.
Q. Against Mr. Peelle?--A. Yes, sir. The board of canvassers showed it differently, I wish to make a correction about the one hundred errors, because that is a mistake. The errors covered that number of votes. It would be 5 votes sometimes, and that would be one error only. I have a memorandum here of the exact difference in the count for sheriff. I know exactly what discrepancies were there and the number of them. It only goes to show that the thing was incorrect as a whole.
Q. I do not care anything about the vote for sheriff. I am getting at the vote for Congress. Do you remember what the total vote is?-A. There was not one hundred errors in the vote for Congress; I do not think there was that many.
Q. I will ask you if in that examination in the votes for.sheriff for the Republican candidate, if the vote was not largely increased over the returns made by the board?A. The Republican candidate got more votes.
Q. According to that count?--A. Yes, sir; I have it here exactly. Mr. Hess's vote was actually increased 7, and Mr. Lemon's was 35 of a loss.
Q. Making a difference of how much gain for the Republican candidate for sheriff?A. The whole number of votes decreased. The ballots less were 35.
Q. How many gain would that make for the Republican candidate over the return of the board ?- A. About 49, sir.
Q. Can you give me the total number of votes you counted as cast for Mr. Peelle for Congress ?-A. I cannot, sir. I can give you the total number of a certain ticket, on the “ spring-back” ticket, but your name was on some Democratic tickets and on a few National tickets.
Q. All the votes that were given for Mr. Peelle on any ticket were counted, were they not?--A. I have not that memorandum with me.
Q. Didn't you count all the ballots that were given for Mr. Peelle?-A. Yes, sir; but I have not the memorandum with me.
Q. Have you the memorandum of the total vote for Mr. English before you?-A. No, sir.
Q. Have you any way by which you can tell the total vote for Mr. Peelle as counted by you?-A. I think I have a memorandum somewhere unless it is mislaid.
Q. Can you state now what the difference was between the total vote cast for Mr. Peelle as counted by you and as reported by the board of canvassers ?-A. As I said before, I only gave it as to majorities and plurality. I can give you the aggregate vote by each, and you can deduct one from the other.
Q. Can you for the vote for Mr. English as counted by you, and the return of the board ?-A. No, sir.
Q. How did you get at it then ?-A. I took it down at the time; I made that memoran dum from the face of my notes.
Q. And the vote for Mr. Peelle was 541 majority over Mr. English as based upon the return made for Mr. English by the board of canvassers?-A. By comparison; yes, sir; it is my actual count.
Q. But you did not vary the total for Mr. English ?-A. Yes, sir; and you too.
Q. Did you compare the total vote of Mr. English as counted by you with the return?-A. Yes, sir.
Q. What difference was there between the total vote for Mr. English as counted by you and the returns as made by the board ?-A. You have got to take the two together and compare them.
Q. I will ask you if it is not a fact that Mr. English, according to your count, had 50 or 60 less votes than were actually returned to him by the board ?-A. No, sir.
Y. Did he have 40?–A. No, sir.
Q. Did he have a less vote as counted by you than was returned by the board ?-A. I don't recollect about that
Q. Do you remember whether Mr. Peelle had any less vote as counted by you than returned by the board of canvassers ?-A. In the aggregate I think he had. I know he had.
Q. I will ask you if Mr. Peelle did not have a greater number of votes, according to the count as made by yourself, than returned by the board of canvassers?-A. No, sir; I have no recollection on that subject.
Q. Can you explain how you got at the difference in that vote?-A. Yes, sir; I counted the ballots, five at a time, and kept a tally on the vote for Congress, and I footed that up, and there was always a period after we got through one before we took up another, for the purpose of verifying, and I took advantage of that time to foot up and make my comparison with the tally-sheet, which I had before me, and then I made my note as to the difference in the vote. After we got entirely through I sat down with my notes on Friday and I footed them up, and I kept a memorandum of the difference in the majorities; no, the plurality; that is, the vote between yourself and Mr. English.
Q. You kept simply the difference in the plurality ?-A. Yes, sir. And I footed that up and I made this statement. And that is the result of the count made in that way and noted in that way.
Q. I will ask you now if that is a fair way of arriving at the actual difference in the vote between Mr. English and Mr. Peelle on that election ?--A. I think so; I think I got the facts.
Q. You made a comparison simply in the pluralities?-A. Yes, sir. I did not count the Greenback vote as anything in the contest, because it was so small.
Q. I ask you again if you did not accept the return made by the board of canvassers, so far as Mr. English was concerned, in arriving at that conclusion ?-A. No, sir; except the figures of the missing precinct.
Q. You took your count of the vote for Mr. English, the total vote instead of the returns for Mr. English, did you?-A. Yes, sir; and Mr. Peelle the same way; and I added to it the report of the board of canvassers in the second precinct in the twelfth ward.
Q. I will ask you if at any time any one went over the figures with you in getting at this conclusion.-A. No, sir; I did that myself. I did not mention it to anybody.
Q. How long after you left the room there where you counted these ballots was it before you made this statement ?-A. Well, I went home that afternoon. We quit at 3 o'clock. I went home about 4. I went to rest. I was very tired and I was worn out, and some time in the middle of the forenoon following, on the 28th of November, on Friday.
Q. What did you do with the figures that you made there in that room?-A. The impression I have is that they are home. I think I put that memorandum away some place. I am not sure about it.
Q. Do you think you could find those figures?-A. I will make the effort. I do not say I can. I have given you the facts as I understand them.
Q. I want to know what you made the total vote for Mr. Peelle and Mr. English at that election, according to your count? (Objected to as having been asked several times before.)
A. Í stated before that I could not tell you that, because I have not got the figures with me.
Re-examination by Mr. WILSON: Q. I will ask you if you found errors against Mr. Peelle in the original count as made by the board of canvassers, and the return?-A. Yes, sir