The People v. Pease. The arrangement had the effect to change, what otherwise would have been a question of right, into one of discretion. The two first exceptions to the charge present only the question, already considered, whether the qualifications of the voters could be inquired into on the trial, and, therefore, require no further notice. The charge in relation to the change of residence of Bellinger, was too clearly correct to require comment. (4 Cow., 516, note 2; Westlake on Private International Law, 36.) No doubt can arise in regard to the correctness of the charge, that where it was proved that a voter was alien born, and there was prima facie evidence that he had not become a citizen by naturalization or otherwise, the vote given by him must be rejected, unless proof of his citizenship was produced. The refusal to charge in the case of Rivinot, that if the jury found that he was an alien born, then, in the absence of any proof of naturalization, his vote must be disallowed; and the charge, that in such case the legal presumption was that he had been naturalized, presents a question of greater difficulty. As a general rule affirmative facts are not to be presumed, but must be proved by the party asserting them. There are, however, some exceptions to this rule, and the question presented by this part of the charge is, whether the case falls within any of those exceptions. I am of opinion that it does, and that the charge was correct. Greenleaf, in his work on Evidence, says: "Where the negative allegation involves a charge of criminal neglect of duty, whether official or otherwise, or fraud, or the wrongful violation of actual lawful possession of property, the party making the allegation must prove it; for in these cases the presumption of law, which is always in favor of innocence and quiet possession, is in favor of the party charged." (1 Greenleaf on Ev., § 80.) The request to charge in this case involved, on the part of Rivinot, something more than a criminal neglect of duty, or fraud. If he voted without naturalization, the act constituted a misdemeanor. (1 R. S., 5th ed., 449, § 13.) The presumption against positive crime cannot be less strong The People v. Pease. than the presumption against fraud or criminal neglect of duty. The negative, therefore, which was involved in the plaintiffs' request, could not be presumed, but required to be proved by the party alleging it. (Williams v. East India Co., 3 East., 192, 199; King v. Hawkins, 10 Id., 216; Powel v. Milbank, 2 W. Bl., 851.) I can perceive no difference between the present case and one where the right to vote depends on residence. In the case of the Commonwealth v. Bradford (9 Metc., 268), the defendant was indicted and convicted for voting at the general election in Boston on the 11th of November, 1844, when, as was alleged, he was not a qualified voter, not having resided in Boston the six months next preceding that election. It was proved that the defendant resided at Kingston until about the first of April, 1844, when he went to Boston, and entered into partnership there with the express understanding that he should make that place his residence: that he continued in Boston until the election, with occasional returns to Kingston, where his family remained until a short time before the election, when they removed to Boston. There was conflicting evidence as to his declarations and intentions respecting his domicil. The judge, at the trial, charged the jury that, as "the defendant's domicil was at Kingston, until he acquired one in the city of Boston, the burden of proof was upon him to satisfy the jury affirmatively, and beyond a reasonable doubt, that on the 11th day of May, 1844, he had changed his domicil from Kingston to Boston, and then dwelt and had his home in that city." Chief Justice SHAW, in delivering the opinion of the Supreme Court upon this point, said: "The court are of opinion that this direction was wrong, and that the burden of proof was still on the government, to prove that the defendant had no right to vote, and that he had not been an inhabitant of the city six months. This, it is true, is a negative proposition, difficult to prove, but necessary in order to charge a party with a criminal offence." On that ground the conviction was set aside. In such cases the presumption in favor of innocence overcomes the presumption, which would: The People v. Pease. otherwise arise, of the non-existence of the fact not proved. To rebut such counter and stronger presumption, some positive evidence to establish the negative is necessary. What that should be, must depend on the nature of the case. (Calder v. Rutherford, 3 B. & B., 302; Phil. Ev., C. & H. ed., 196.) The negative in regard to naturalization would ordinarily be much more difficult to prove than it would be in regard to residence, but the principle of both cases is the same. (Rex v. Rogers, 2 Campb., 654; Rex v. Twyning, 1 B. & A., 386; Hicks v. Martin, 9 Mar. [1 Louis.], 47; 1 Cow. & Hill's Notes, n. 325, p. 423.) Full and conclusive proof, where a party has the burden of proving a negative, is not required, but even vague proof, or such as renders the existence of the negative probable, is, in some cases, sufficient to change the burden to the other party. (Calder v. Rutherford, supra.) The last request of the plaintiffs' counsel was, therefore, properly overruled. The judgment of the Supreme Court should be affirmed. EMOTT, ROSEKRANS, and BALCOM, Js., concurred. DENIO, Ch. J. (dissenting.) The circumstance that the plaintiff had to make out his title to the office by claiming the allowance in his favor of ballots in some respects imperfect, and which had not been allowed him by the canvassers, has no proper influence upon the main question involved in the case. If the plaintiff had received an undisputed majority of all the votes given, and had obtained the adjudication of the board of county canvassers in his favor, and had been prosecuted in such an action as this by the present defendant, the same precise question now under consideration would have arisen. That question is whether a candidate, who is found in a minority upon a correct estimate of the ballots actually deposited according to law, can, notwithstanding, claim and obtain the office, by showing that a number of the votes of the opposing candidate, sufficient to have changed the result, were cast by persons not qualified to vote. It is a very The People v. Pease. important practical question; for where the constituency is as numerous as it must always be where universal suffrage prevails, it can rarely happen, in an election even for a local office, that reasonable doubts may not arise as to the qualifications of a greater or less number of voters for the one candidate or the other. Hence, where the majority disclosed by the ballots is small, the strongest temptation will be held out to the defeated party to institute a scrutiny, of the character resorted to in this case, into the qualification of the persons whom he supposes to have voted for his opponent. The suc cessful candidate will, of course, have an equal right to scrutinize his opponent's vote, and thus his right to the office will depend, not upon the official determination of the canvass, but upon the trial of an issue involving a great number of distinct questions of fact, entailing great expense to the parties and much inconvenience to the public, on account of the delay and the uncertainty, which must in the meantime prevail, as to the legal incumbency of the office. It is a plausible proposition, and in one sense a true one, to say that the right to an elective office ought to depend rather upon the number of legal votes given to the respective candidates, than upon the absolute number. But the position does by no means solve the difficulty presented by this case. The real question is who, according to the arrangements which the constitution and laws have provided for determining that question, received the greatest number of votes, and was elected to the office. If the law has left it as an open question, to be determined like ordinary matters upon which private rights depend, or, which is much the same thing, if the certificate of the canvassers is made only prima facie evidence of the state of the poll, as is argued, the right can only be definitely settled by the verdict of a jury. But the nature of the subject would lead us to conclude, a priori, that such could not be the system organized by the legislature. Nothing, in all the arrangements of civil gov ernment, can be more important than that the various official posts should be at all times occupied by magistrates not only lawfully chosen, but about whose title to their respective posí The People v. Pease. tions in the public administration there should be neither doubt nor uncertainty. The quiet and order of society and the due execution of the laws require that such should be the case. A person coming into an office under color of a legal election, no doubt has certain of the characteristics of a public officer; but common observation and experience show that, without an assured title to the office, the officer is not fully respected and obeyed, and is unable to accomplish the public objects which were intended to be secured by the creation of the office. If his title eventually proves defective, his right as an officer de facto will not protect him against the actions of individuals whose persons and property have been affected by his assumed official acts. I am of opinion that the policy of the legal provisions which have been enacted upon this subject is to secure record evidence of the result of the election, which, save in a few exceptional cases to be presently mentioned, is conclusive upon the public and upon all individuals, and against the verity of which no allegation can be admitted. I do not proceed upon one of the grounds relied upon by the plaintiffs' counsel, namely, that the inspectors of elections are made judges of the qualifications of persons claiming to be elected and who may offer to vote. The statute declares that when the right to vote is challenged, the party desiring to vote is to be sworn to answer such questions as shall be put to him touching his residence and his qualifications. If he refuses to be so sworn, or to answer fully, after he has been sworn, his vote is to be rejected. This is not a determination of the inspectors as to his qualifications; but he is put aside for refusing to comply with the terms prescribed by law. If he consents to be sworn and to answer, he is to be interrogated upon the various points involved in the question of due qualification. If, in the judgment of the inspectors, his answers have shown that he is deficient in any requisite, that is to be pointed out to him. If he persists in his claim to vote, and the challenge is not withdrawn, the inspectors are obliged to administer to him the general oath, in which he affirms the possession in |