to be used by said subcommittee as evidence in said contest; that the boxes containing said ballots were opened by Isaac N. Powell, the chief clerk of said board, in the presence of said election commissioners, said subcommittee, the contestants and their attorneys, and the ballots counted; that immediately after such recount they were returned to the respective boxes from which they had been taken, resealed, and again placed in said vault; that during such recount said ballots were not mutilated, disfigured, or in any manner changed, but were returned to said boxes in the same condition in which they were taken therefrom, and after their return thereto remained in said vault, with the other boxes containing ballots, until they were produced in court to be recounted in this contest.

The ballots were fully identified and properly and safely kept, and not exposed to the risk of being tampered with, and the court did not err in holding that they were better evidence, in determining the result of the election, than the returns of the judges of the election, and in basing its decision upon such recount and not upon the returns of the judges of the election.

The questions raised in the court below and discussed in the briefs filed in this court are numerous, cross-errors having been assigned. The ballots objected to, however, with few exceptions, which are not sufficiently numerous to affect the result, may be classified and the questions raised disposed of under the following heads:

1. A number of ballots were counted which had indorsed upon the back thereof only a single initial of one of the judges of election. The object of requiring one of the judges of election to officially indorse on the back of the ballot his initials before giving it to the voter is to identify the ballot as being one which had been cast at the election. Such identification is as complete from one initial as from all of the initials of such judge, and 64 the voter should not be disfranchised by reason of the failure of such judge of election to literally comply with the statute in that regard. While the statute requiring such official indorsement is mandatory (Kelly v. Adams, 183 Ill. 193, 55 N. E. 837), the indorsement of one initial is a substantial compliance with the statute, which is all that is required; also, under a wellknown canon of construction in force in this state (3 Starr & Curtis' Statutes of 1896, c. 131, sec. 1, par. 3), words importing the plural number include the singular. The court did not err in counting such votes. In Horning v. Board of Canvassers, 119 Mich. 51, 77 N. W. 446, under the provisions of the election

laws of that state requiring the inspector to write his initials upon the upper left-hand corner of the ballot and declaring void all ballots not indorsed with the initials of the inspector, as provided in the act, it was held ballots inadvertently indorsed by the inspector in the lower right-hand corner should be counted. To the same effect is Parvin v. Wimberg, 130 Ind. 561, 30 Am. St. Rep. 254, 30 N. E. 790.

2. A number of ballots were counted which had indorsed upon the back thereof the full name of the judge of election, instead of his initials. In Gill v. Shurtleff, 183 Ill. 440, 56 N. E. 164, it was held that where a legal voter properly prepares his ballot and the same is placed in the ballot-box, it should be counted, although some one of the election officers, without participation of the voter, made an indorsement on such ballot which might serve as a distinguishing mark. Under the rule as thus announced such votes were properly counted.

3. A number of ballots were counted with a cross in the Republican and Democratic circles, and a cross in the square preceding "Bertrand" or "Perkins." In the case of Vallier v. Brakke, 7 S. Dak. 343, 64 N. W. 180, a well-considered case construing the Australian ballot act of that state, which is substantially the same as the act in force in this state, the court held that a ballot marked with a circle at the head of both the Republican and People's 65 Party tickets and a cross at the left of the name of the plaintiff was correctly counted for the plaintiff, on the ground that the cross at the head of the two tickets neutralized each other and was equivalent to a cross at the head of neither, and that the cross to the left of the plaintiff's name made it a vote for the plaintiff. Under this authority, which seems to be the only one directly in point, the court properly counted ballots thus marked for the candidate before whose name the cross appeared in the square.

4. The court declined to count ballots marked in the circle at the head of the Republican or Democratic tickets in cases where the voter had erased the other tickets upon the ballot by drawing vertical lines through the same. This ruling was correct. In Kelly v. Adams, 183 Ill. 193, 55 N. E. 837, where the fac-simile of a similar ballot is printed, the court held that such ballot was improperly counted, on the ground that such lines amounted to distinguishing marks, and avoided the ballot.

5. The court counted a number of ballots upon the face of which appeared letters, words, or marks made by the voter, which were claimed to be distinguishing marks. The original ballots

have not been certified to us for inspection, and the trial court, from an inspection thereof, was in much better position to determine the question, which is largely, if not wholly, a question of fact (Kelso v. Wright, 110 Iowa, 560, 81 N. W. 560), whether said letters, characters, and marks were distinguishing marks, or whether they simply evidenced the honest intention of the voter to indicate the candidate or candidates for whom he desired to cast his ballot, than we are from a description of such ballots or from the exhibits found in the record. We are not, therefore, inclined to overrule the action of the trial court in counting said ballots. In Parker v. Orr, 158 Ill. 609, 41 N. E. 1002, it was contended that the word "yes" or "get" upon a ballot amounted to a distinguishing mark, and that the trial court erred in counting the same. In disposing of such con

tention we say (158 Ill. 618, 41 N. E. 1005): "The word 'yes' or 'get' tended to indicate the voter's choice upon the proposi tion submitted; and that it served the further purpose of distinguishing the ballot is, to say the least, a very remote conjecture."

6. The court counted a number of ballots found in the envelopes containing "defective and objected to" ballots. Before counting the same the judges of the precincts from which the ballots came were called and testified that the ballots were voted by legal voters, and gave their reasons for not counting the same, none of which appear to be valid. Said ballots were official, had the initials of one of the judges of the respective precincts on the back thereof, were properly marked by the voter, and were inclosed in envelopes securely sealed, and so marked and indorsed as to disclose their contents, as provided by section 26 of the ballot act. The court did not err in counting such ballots.

7. The court counted a number of ballots which, it is contended, should not have been counted because not properly marked, of which the following are examples: "Ballot with no marks on its face except two in the circle at the head of the Democratic ticket; two pen-marks meeting at a point. The court thinks, on close examination, these two pen-marks cross. Counted for Perkins." "Ballot with a cross in the circle at the head of the Republican ticket. There are two pen-marks that look like blots, one immediately to the left in the first square, and the other one over the square, before the names 'Bertrand' and 'Weil' and partially over 'Schmidling.' The court thinks they were made by accident. Counted for Bertrand." The trial Am. St. Rep., Vol. LXXXV-21

court saw the original ballots, and in some instances examined them with a magnifying glass, and was in a much better position to judge than we, whether or not the same were probably marked by the voter. It is therefore impossible for us to say they were not properly marked and entitled to be counted.

67 8. Appellant objects to the counting of ten ballots that did not have the initials of any judge of election on the back thereof. Under the authority of Kelly v. Adams, 183 Ill. 193, 55 N. E. 837, such ballots were not entitled to be counted. The record in this case, however, does not disclose for whom they were counted, nor that at the time they were counted appellant objected to the count thereof. It is now too late for him to make such objection. For aught that appears, they were all counted for the appellant.

9. Ballots were counted which had figures thereon, placed thereon by the judges at the time they were cast, under a mistaken view of the law and without the knowledge of the voter, of which the following are examples: "Ballot marked for Perkins has on back figure '3,' counted for Perkins." "Ballot marked for Bertrand has on back, in lead pencil, figure '13,' counted for Bertrand." In Pennington v. Hare, 60 Minn. 146, 62 N. W. 116, where ballots had been numbered, without the knowledge of the electors casting them, by the judges of election, by reason of a misunderstanding of the law on their part, the ballots were held to be properly counted for their respective parties, the court say (60 Minn. 147, 62 N. W. 117): "To hold otherwise would place it in the power of election officers to disfranchise electors at their pleasure." Such votes were properly counted.

We have examined each question presented by this record with care, and while it is impossible to comment in this opinion upon each of the numerous ballots to which objections have been made, we have carefully considered the same, and have reached the conclusion that the county court properly held the ballots to be the best evidence from which to determine the result of said election, and that said court committed no reversible error in the recounting of said ballots.

The decree of the county court will, therefore, be affirmed.

Elections.-Ballots are the best evidence in an election contest of how the electors voted: Tebbe v. Smith, 108 Cal. 101, 49 Am. St. Rep. 68, 41 Pac. 454. A perfect ballot is exclusive evidence of a voter's intent: Wimmer v. Eaton, 72 Iowa, 874, 2 Am. St. Rep. 250, 34 N. W. 170. See, also, Coughlin v. McElroy, 72 Conn. 99, 77 Am St. Rep. 301, 43 Atl. 854.

Marks on Election Ballots which appear to have been made Inadvertently or accidentally, and not for any evil purpose, are not within the meaning of a statute requiring the exclusion from the count of all ballots having thereon marks not authorized by law, and should not be construed as identifying or distinguishing marks: Dennis v. Caughlin, 22 Nev. 447, 58 Am. St. Rep. 761, 41 Pac. 768; Coughlin v. McElroy, 72 Conn. 99, 77 Am. St. Rep. 301, 43 Atl. 854. See, further, the monographic note to Taylor v. Bleakley, 49 Am. St. Rep. 246-248.

Election Ballots.-When a cross is placed in the circle preceding the party appellation, and one or more crosses are placed before the names of candidates on another ticket, the ballot is to be counted for the candidates so marked: Whittam v. Zahorik, 91 Iowa, 23, 51 Am. St. Rep. 317, 59 N. W. 57. See, further, Young v. Simpson, 21 Colo. 460, 52 Am. St. Rep. 254, 42 Pac. 666, monographic note to Taylor v. Bleakley, 49 Am. St. Rep. 240-243.

An Election Ballot Indorsed by the clerk at an improper place cannot, for that reason, be rejected: Parvin v. Wimberg, 130 Ind. 561, 30 Am. St. Rep. 254, 30 N. E. 790. Neither will a ballot be rejected because of marks made by election officers after it has been cast by the voter: State v. Sadler, 25 Nev. 131, 83 Am. St. Rep. 573, 58 Pac. 284, 59 Pac. 546, 63 Pac. 128.

KELLY v. PEOPLE.

[192 Ill. 119, 61 N. E. 425.]

CRIMINAL LAW.-UNCORROBORATED TESTIMONY OF AN ACCOMPLICE is sufficient to convict a person of crime. (p. 324.)

CRIMINAL LAW-CRIME AGAINST NATURE.-An indictment charging a crime against nature in the language of the statute, or so plainly that its nature may be easily understood by the jury, is sufficient, and it need not set forth the manner of committing the offense. (p. 325.)

CRIMINAL LAW-BILL OF PARTICULARS.-It is only when it appears that defendant cannot properly prepare his defense without a bill of particulars, that the court will require the prosecuting attorney to furnish it. (p. 325.)

J. E. W. Wayman, for the appellant.

H. J. Hamlin, attorney general, C. S. Deween, state's attorney and F. L. Barnett, for the people.

119 WILKIN, C. J. At the February term, 1901, of the criminal court of Cook county plaintiff in error was convicted of the "crime against nature." His motions for a new trial and

in arrest of judgment were overruled, and he was sentenced to the penitentiary at Joliet. By this writ of error he brings before us for review that record of conviction.