vote being in, and he being in all other respects a qualified elector, his vote should not have been excluded.

In our opinion E. L. Jenkins should have been allowed to vote. He was born and raised in this state, afterward moved to South Carolina, but returned to Cleveland county, in this state, one year and three days before the election. He offered to register the day the registration books were closed, but was not allowed to do so, as it lacked seven days of being one year since he returned to live in this state. This action of the registrar was proper. But on the day of election, when he had been a resident of this state for one year and three days, he asked to be registered, and, with tickets in hand, proposed to vote. But he was refused registration and his vote was also refused. He proposed to vote for the plaintiff, and, being otherwise a qualified voter, his vote should have been received and counted: Code, sec. 2682; McCrary on Elections, sec. 102.

436 This brings us to the consideration of No. 6 and No. 8 townships, and we propose to consider No. 6 first. The referee, Burwell, finds as facts that on the evening of the election, at the close of the polls at No. 6, the boxes were opened and the vote counted by the judges and such other electors as chose to attend; and at this counting it was found that the defendant, Lattimore, had received five hundred and forty-eight votes, and this result was then and there so declared. The referee further finds that the defendant had not produced evidence sufficient to change the result of this count and declaration of the vote, and declares that the defendant's vote at No. 6 was five hundred and forty-eight.

But the judgment of the court finds that the vote was counted and declared, after the polls were closed, on the evening of the election at No. 6, and at this count the defendant only received five hundred and forty-eight votes, and this was officially declared as the result. The court further finds that this count was not correct, and that defendant insists that this is a finding of fact, and, there being some evidence to support it, it is binding on this court.

This is admitted to be the rule adopted by this court, that where there is evidence both ways, the court will not review the findings of the court below, and we do not propose to invade this rule of practice, whatever our opinion may be as to the correctness of the finding. But the law makes this count and declara

tion of the result, prima facie at least, the legal result of that election, until it is shown to be incorrect by proper and competent evidence. This, of course, might be shown by competent evidence, such as showing that a fraud had been committed upon the plaintiff in falsely declaring the vote. But no such evidence as this was introduced. The only evidence introduced to show that this count on the evening of the election was not correct was a tally sheet kept at the time of the count, turned over 437 to Tiddy, and placed by him in an unlocked safe in the register's office, where it remained all night. Next morning he took it out of the safe and put it in a pigeon hole over a desk in the same office, where it remained during that day. It appeared that this was a public office where all persons could go that had occasion to do so; that during this day it became known that the election between the plaintiff and defendant was very close, and that a few votes would change the result, which then appeared to be in favor of the plaintiff. It cannot be that such evidence as this, if it possessed no internal evidence of having been tampered with, could be allowed to rebut a legal presumption and change the result of an election. This count, at the time of election, is held to be more reliable than any count, after there had been an opportunity for the vote to be tampered with: McCrary on Elections, sec. 440. The supreme court of California refused to allow a recount upon its being shown that the ballots had not been kept in such a manner that they could not have been tampered with: McCrary on Elections, sec. 441. Where there has been an opportunity for the vote to be tampered with, it loses its chanacter as primary evidence: McCrary on Elections, sec. 441.

We, therefore, hold that the findings or declarations contained in the judgment of the court, that the referee committed an error in sustaining the original count, and that the defendant only received five hundred and forty-eight votes at No. 6 township, is error, but that he received five hundred and fifty-three votes is without evidence to support these findings; that the tally sheet relied on by the defendant (and this being the only substantive evidence), having been exposed and liable to be tampered with, had lost its character as primary evidence, and could not be relied on to prove anything.

We therefore overrule the court, and sustain the ruling of Referee Burwell, and find that the defendant Lattimore's vote at No. 6 precinct was five hundred and forty-eight and not five hundred and fifty-three.

438 As we have passed upon this exception, overruling the court, holding that there was no competent primary evidence to sustain the finding, we will state that we have thoroughly examined this tally sheet, without and also under a heavy magnifying glass. And while, under the rules of this court, we did not consider ourselves at liberty to find facts upon which to base our judgment, it is manifest to us that this tally sheet has been tampered with. The figures are admitted to have been changed from 548 to 553. But this is not what we refer to. The right hand tally on the third row bears internal evidence of not being of the same make as the others. The cross stroke of every other tally is horizontal, or the right end is the highest, while in this tally the right hand end of the cross stroke is considerably lower than the other end. Also, the first two down strokes bear evidence of not having been made at one stroke of the pencil, as would likely be the case in the hurry of tallying the vote, as it was counted. The second down stroke, especially, is forked at the lower end, as is quite apparent under a heavy glass. Without making any charge against anyone, as this could not be done, the paper having been exposed in a public office for so long a time, and without any disposition to do so, if we could, we are of the opinion it has been tampered with.

The discussions and rulings we have made, being decisive of the question before us, no matter whether we should decide the controversy as to the vote in No. 8 one way or the other; and as any ruling we might make as to this contention would not affect the result, and as we have examined it sufficiently to know that its solution is not without trouble, we have not and will not consider this exception.

439

The investigation of the case results in finding that the plaintiff is entitled to have counted for him the following votes that he was not allowed to have by the finding and ruling of the court, to wit: John Surat, Lawson Kindrick, Henderson Sanders, John Jameson, James Crosby, Julius Crosby, Pinckney Crosby, R. C. Hoyle, W. P. Costner, R. C. Ledford, Caleb Ledford, David Pratt, Ed. Rankin, Reuben Posten, J. McRollins, John Porter, Batts McIntyre, William McLaney, S. A. McLaney, W. A. Pryer, Sylvanus Gordon, Sam Towrey, George Otterson, John Chapion, S. R. McMurray, E. L. Jenkins, Bish Hamrick, Daniel McSwain, Calhoun Russ, Ezzell Russ, George Price, Webb White, Floyd Havener, A. A. Hendrick, M. V. Turner, and G. R.

Smith. And the plaintiff is also entitled to five votes in No. 6 township that he was not allowed by the judgment of the courtmaking, in all, forty-one.

And we find that the defendant is entitled to have counted for him the following named voters that he was not allowed by the ruling and judgment of the court, to wit: John Posten, Will Posten, F. P. Gold, Philip Martin, and Randall Roberts-making five in all.

Thirty, the majority found for the defendant by the court, deducted from forty-one, leaves eleven, and five which we find the defendant entitled to, that he was not allowed by the judgment of the court, deducted from eleven, leaves the plaintiff elected by six majority.

The judgment of the court, therefore, should have been that the plaintiff, Quinn, was duly elected to the office of clerk of the superior court for the county of Cleveland, and is entitled to the same and the fees and emoluments thereof from the first Monday in December, 1894, and for the next four years then next ensuing. There is error, and judgment will be rendered according to this opinion.

ELECTIONS-MISCONDUCT OF ELECTION OFFICERS-REGISTRATION.-Mere irregularities on the part of election officers, or their omission to observe some merely directory provision of the law, do not vitiate the election: Parving v. Wimberg, 130 Ind. 561; 30 Am. St. Rep. 254, and note; Moyer v. Van de Vanter, 12 Wash. 377; 50 Am. St. Rep. 900, and note. The legislature has power to pass proper and reasonable registration laws: Note to Southerland v. Norris, 28 Am. St. Rep. 260; but no such law can deprive a voter of his constitutional right to vote except as a penalty for his own fault or neg. ligence: Attorney General v. Detroit, 78 Mich. 545; 18 Am. St. Rep. 458, and note. See, also, Boyer v. Teague, 106 N. C. 576; 19 Am. St. Rep. 547, and note.

ELECTIONS-UNLAWFUL VOTING-RECEPTION OF ILLEGAL VOTES.-The reception of illegal votes at an election does not affect its validity, unless it is shown that their reception affected the result: People v. Cicott, 16 Mich. 283; 97 Am. Dec. 141, and note, Where a person votes at an election without having been registered, and without any proof of right, if it does not appear that he was challenged, or that any objections were made to his voting, the presumption must be that he was a legal voter and so known to the judges of election: Monographic note to People v. Pease, 84 Am. Dec. 268, and extended note to People v. Bates, 83 Am. Dec. 750.

ELECTION CONTESTS-BURDEN OF PROOF.-Poll-books and tally sheets made out and properly certified by the election officers, and the ballots themselves are the primary evidence of the result of an election: Dixon v. Orr, 49 Ark. 238; 4 Am. St. Rep. 42. In an election contest the burden of proof is upon the party who seeks to set aside the returns: Note to Kreitz v. Behrensmeyer, 8 Am. St. Rep.

378; Tebbe v. Smith, 108 Cal. 101; 49 Am. St. Rep. 68, and note; note to Boyer v. Teague, 19 Am. St. Rep. 567. See, also, important note to People v. Pease, 84 Am. Dec. 268-272.

STATE V. MCRAE.

[120 NORTH CAROLINA, 608.]

CRIMINAL LAW-GUILT, PRESUMPTION OF FROM POSSESSION OF STOLEN PROPERTY.-In a prosecution for stealing money an instruction that if the piece testified to have been stolen was stolen on the twenty-first day of a month and was given by the accused to a witness on the 23d of the same month, then the burden of proof shifts, and the defendant is presumed to be the thief, unless he satisfactorily explains his possession, is errone

ous.

Attorney General Zeb V. Walser, for the state.

Covington & Redwine, for the defendant.

609 FAIRCLOTH, C. J. The defendant stands indicted for stealing thirty dollars in money, and the case shows that it was a twenty dollar gold coin, the property of Edwin Eubanks. There was no direct evidence, and the state relies on the proof of recent possession. Many attempts have been made to tell what constitutes recent possession, such as "soon after," "shortly after," "so soon after the theft as to raise a presumption of guilt" and the like; and then presumptions are held to be strong, slight or weak, etc., and each case is at last disposed of on its particular facts.

We have no disposition to try to add to the list of what constitutes recent possession. Some of them will be found in State v. Jones, 3 Dev. & B. 122; State v. Turner, 65 N. C. 592; State v. Graves, 72 N. C. 482; State v. Wilson, 76 N. C. 120; State v. Patterson, 78 N. C. 470; State v. Smith, 2 Ired. 402; State v. Rights, 82 N. C. 675; State v. Rice, 83 N. C. 661; State v. Jen. nett, 88 N. C. 665.

Evidence: Eubanks, the prosecutor, testified that he was a postal route agent from Munroe to Atlanta, Georgia. That on January 21, 1897, at 11 o'clock A. M., he had the coin in his pocket at the postoffice in Munroe, when he went to his room at Mr. Courtney's and went to bed, slept till dark, dressed and went to a restaurant and stayed about depot till 9 o'clock P. M., when he took the train for Atlanta, where he arrived next morning, when he missed his gold coin. That the defendant cooked for 610 Courtney, but he did not see her there on the said 21st;