es which warrant us in believing that the [2. TRESPASS (§ 46*)-EVIDENCE-POSSESSION.

deceased was under the apprehension of impending death."

Courts have always been very careful and cautious, and properly so, in admitting statements made by the deceased, as dying declarations, because they are not made in court or under its direction; and for the further reason that no opportunity for cross-examination is afforded the defendant.

In State v. Frazier the court used the following language in discussing this point:

"Such declarations are generally made without the sanction and obligation of an oath, and without an opportunity to those against whom they are used to cross-examine the party making them. Dying declarations of a deceased party are only admissible when made under a sense of impending dissolution, and some writers on the subject go so far as to say that such declarations, to be admissible, must be made under a sense of impending and almost immediate dissolution; other have somewhat relaxed the rule, and are not quite so rigid in their construction of it. We think the proper and most sensible construction is that there must exist in the mind of the party making such declarations, at the time they are made, a firm conviction of impending dissolution, if not immediate, at no distant day, and that there should not be a lingering hope of ever recovering." The objection to the admissibility of the testimony is sustained.

The state resting, evidence was introduced for the prisoner to prove previous threats by the deceased against him; the size and strength of the deceased; the injuries inflict ed upon the prisoner by the deceased, consisting of severe bruises about the head and face and the dislocation of his shoulder (the opinion of one physician who examined the prisoner, shortly after the affray, being that the wound on the head was made by some hard substance other than the fist); also evidence tending to prove the general good reputation of the prisoner for peace and good order in the community in which he lived.

The Attorney General, thereupon, under all the facts disclosed, with the concurrence of the court, entered a nolle prosequi; and the accused was discharged.

1. TRESPASS (§ 20*)-INJURY TO REAL PROPERTY-POSSESSION.

Plaintiff cannot recover in trespass to real property, in the absence of proof that she was in actual possession at the time of the alleged

trespass.

[Ed. Note.-For other cases, see Trespass, Cent. Dig. 8 32-47; Dec. Dig. § 20.*]

In trespass to real property, evidence held insufficient to warrant a finding that plaintiff was in actual possession at the time of the trespass.

[Ed. Note. For other cases, see Trespass, Cent. Dig. §§ 123-127; Dec. Dig. § 46.*]

Action by Mary S. Clendaniel against David B. Bennett in trespass for an injury to real property. Nonsuit ordered.

Argued before BOYCE and CONRAD, JJ. Andrew J. Lynch and John M. Richardson, Robert both of Georgetown, for plaintiff. C. White, of Georgetown, for defendant. The plaintiff, before a justice of the peace for Sussex county, first filed a written statement under hand:

"That David B. Bennett, of Cedar Creek hundred, in the county of Sussex aforesaid, on the 13th day of March in the year of our Lord one thousand nine hundred and eleven, at the county aforesaid, did then and there willfully and unlawfully trespass upon the lands of her the said Mary S. Clendaniel, situate in Cedar Creek hundred aforesaid, and did then and there make direct and immediate injuries to her said lands by cutting or felling certain trees standing or growing in the soil and attached to the freehold of the land of her the said Mary S. Clendaniel, without her consent first had and obtained."

March 20, 1911, David B. Bennett, the defendant, appeared and did say "that the place wherein the above trespass is alleged is the freehold of Alice Bennett, the defendant's wife, under whom he claims, and prays that this cause may be tried in the Superior Court, and thereupon J. Harry Reed, and J.

Wilbur Hammond become bound to the plaintiff in the sum of $100.00 that the damages and costs which she may recover in said

court shall be satisfied."

Whereupon the justice certified the record of the action to this court for trial, under section 4, Revised Code 1852, amended to 1893, c. 100, p. 768.

The case was pleaded to issue as other causes in this court.

When the plaintiff had rested, counsel for defendant moved for a nonsuit upon the following grounds:

1. That the plaintiff had not proved a paper title.

2. That she had not proved herself in possession of the lands, which is necessary to sustain an action for trespass. Clark v. Hill, 1 Har. 335.

The facts and questions presented appear in the opinion of the court.

BOYCE, J. (delivering the opinion of the court). [1] It is necessary to prove possession in order to maintain trespass. Whether the plaintiff has shown a legal title to the land in dispute, in this action, is unimportant if unaccompanied by an actual posses

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

sion at the time of the alleged trespass. [2. ELECTIONS (8 298*)-ELECTION CONTEST— Clark v. Hill, 1 Har. 335. QUESTIONS REVIEWABLE

There is, in this case, no question of mix- ceedings of the board of canvassers of said ed possession, or joint occupancy.

Keenan v. Cook, 12 R. I. 52; State v. Cong- | temporary duration; it settled no independdon, 14 R. I. 267. It is clear that the action ent right." From all of which it appears of the boards of canvassers in making up the that the canvassing and listing of voters by voting lists is not reviewable in a proceeding a board of canvassers at any particular time, of this character but by certiorari alone. while judicial acts, are limited in their scope Lennon v. Board of Canvassers, 29 R. I. 329, and effect, having in point of time reference 71 Atl. 305; Id., 29 R. I. 456, 72 Atl. 398. only to the election next following, and being This, however, is not a proceeding to purge therefore temporary in character, and being the voting lists of Cranston, and the court conclusive as to electoral qualifications upon will now make no order in relation thereto. the election officers conducting said election. [2] This is a proceeding to try the title to They can refuse the vote of no man on the an office, and the question raised is whether list; they can receive the vote of no man or not the judicial action of the board of not on the list. So far as the public is concanvassers in making up the voting lists in cerned as to any particular election, said any way limits the scope of the inquiry of listing of voters is conclusive in that all perthis court in this proceeding. In other sons not on the list, although qualified elecwords, is the action of the canvassers in tors, cannot vote (In re Polling Lists, 13 R. placing a man's name on the voting list, so I. 729), and in that all persons on the list far as this proceeding is concerned, conclu- may vote; but it is not conclusive as to the sive as to his right to vote as claimed by qualification of those on the list as voters. the respondent? The effect of such action Therefore, not only do those on the list, not by a board of canvassers has been discussed actually qualified, vote at their peril, but in State v. Congdon, supra. The court there also the effect of their illegal voting may be says that these lists are "conclusive evidence rectified. Such action of a board of canof electoral qualification for moderators and vassers is accordingly no bar to a full inwardens in the elections which follow next quiry in a proceeding like the present one as after they are made," and that the law does to the qualifications of voters participating "not purport to make the list conclusive in in an election. And this view is well susany other matter or for any other purpose." tained by authority elsewhere. State v. It was there urged "that the listing itself O'Hearn, 58 Vt. 718, 6 Atl. 606; McCrary on qualifies the voter or gives him the right to Elections (4th Ed.) § 470; Preston v. Culvote." The court held this argument unten-bertson, 58 Cal. 198, 208; Thatcher's Crimable, pointing out that the qualifications of voters are prescribed by the Constitution, and that it is utterly beyond the power of the General Assembly, either directly or indirectly, to alter, add to, or abridge them. And further on it says: "In fact, the listing, so far from giving the right, will not protect the voter, though it may enable him to vote, unless he is otherwise qualified." If a person listed as a voter, although not qualified, is not protected from being punished criminally if he votes with knowledge of his lack of qualification, is it nevertheless to be permitted that his illegal and perhaps criminal vote shall be counted as valid simply on the ground that his being listed by the canvassers has rendered the question of his qualification as a voter res adjudicata? Does public policy permit inquiry as to the lack of qualification of a voter, notwithstanding his being listed for the purpose of his punishment, if ascertained, but allow no investigation with the intent of preventing his illegal act having effect? That there can be inquiry in a criminal proceeding as to the qualification of a voter shows that the listing of a person as a voter is not conclusive as to his qualification as such.

In Cannon v. Board of Canvassers, 24 R. I. 473, 475, 53 Atl. 637, 638, the court quotes Durfee, C. J., in State v. Congdon, supra, to the effect "that the determination is required by the statute for a particular purpose of

inal Cases, 593, 595; Cyc. vol. 15, 307; 10 Am. & Eng. Ency. L. 773, note 2. It was also suggested, although little pressed, that a person voting at an election, although not qualified to do so, should not be permitted to testify for whom he voted. Upon grounds of public policy, the legal voter cannot, under our secret ballot laws, be compelled to disclose for whom he voted, but there is no good reason why an illegal voter should be thus protected. The rule is obviously in aid of the purity of the ballot and not for the protection of its corrupt use.

[3] It is well settled that the illegal voter may be required to testify for whom he voted. McCrary on Elections, §§ 490, 492, 494; Paine's Law of Election, § 776; Wigmore on Evidence, vol. 3, § 2216; Cyc. vol. 15, p. 424, and cases cited. Therefore, during the hearing, when it appeared that a witness had voted illegally in the election in question, it was permitted to inquire for whom he voted. This rule was also applied once in a case of a supervisor aiding an illegal voter, notwithstanding the provisions of section 45 of chapter 11 of the General Laws providing that in such case "such supervisor shall thereafter give no information regarding the same," as the court construed the word "voter" in said section to mean legal voter, and that the prohibition would not apply to an illegal voter.

Now what are the facts as shown by the

tion.

The petition is therefore denied and dismissed.

evidence? The petitioner offered testimony | the petitioner, and that the respondent was to show that 14 unqualified voters had il- duly elected mayor of Cranston at said eleclegally voted for the respondent. The latter offered testimony to show that 17 such voters had voted for the petitioner. It clearly appeared by the testimony that one of the 17, Thomas S. Hammond, was a qualified elector, and that the other 30 were illegal voters. This fact was challenged as to Charles Limb. Both his father and himself were born in England. There was no evidence that either was ever naturalized. The father died some seven or eight years ago,

[4] The son testified that he had been told by friends that his father was a voter; that is hearsay and is clearly insufficient to establish the fact that the father was ever a

STATE v. BRIGGS.

(Supreme Court of Rhode Island. April 9,
1913.)

INDICTMENT AND INFORMATION (§ 79*)—LAN-
GUAGE OF STATUTE TRANSPOSITION OF
WORDS.

Where the offense of having in one's possession a certificate used in playing a game known as policy and policy lottery was charged in the statutory language, the fact that the words "policy" and "policy lottery" were inverted was immaterial.

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. 88 209-214; Dec. Dig. § 79.*]

Exceptions from Superior Court, Providence and Bristol Counties; Charles F. Stearns, Judge.

Leander Briggs was convicted of having in his possession a certificate used in playing policy, and excepts. Exceptions overruled, and case remitted for further proceedings upon verdict.

Livingston Ham, Asst. Atty, Gen., for the State. Thomas J. Dorney and Fitzgerald & Higgins, all of Providence, for defendant.

PER CURIAM. This is a criminal com

voter, and thus raise the presumption that he was a legal voter. There was no serious objection raised by respondent as to the 14 voters alleged by petitioner to have illegally voted for respondent, except as to 2, and as to these we are of the opinion that in fact they did vote for respondent. As to 8 of the 16 illegal voters presented as witnesses by the respondent, petitioner, while he does not concede that they voted for him, urges no good reason why their testimony that they did so vote is not to be accepted as true, and we are of the opinion that their votes were cast for the petitioner, as they stated. The petitioner claims that the other 8 illegal voters produced by respondent as witnesses should, upon all the evidence in the case applicable to them, be found to have voted for the respondent, although they tes-plaint tried at first in the Sixth district court tify that they voted for the petitioner. We think that the evidence justifies such finding as to 3 of said 8; on the other hand, we are of the opinion that 3 of the 8 voted for the petitioner, as they testified to doing. As to the other 2, it may perhaps be more difficult to draw a definite conclusion as to the person for whom they voted; but it is immaterial as to them what conclusion is reached as affecting the result of the election as will appear by the following: The vote, as announced by the board of canvassers, was Mr. Sullivan, 1892, Mr. Horton, 1881. Deduct from Mr. Sullivan's vote the illegal 14 votes shown by the petitioner, and 5 out of the last group of 8, and his corrected vote is 1873; deduct from Mr. Horton's vote the 8 practically not disputed and 3 of the last group of 8, and his corrected vote is 1870, which gives Mr. Sullivan 3 votes more than Mr. Horton. But, if the two doubtfull voters of the last group of 8 be counted as having been cast for Mr. Horton, the corrected result is that Mr. Sullivan has 1875 and Mr. Horton 1868, which gives Mr. Sullivan 7 votes in excess of Mr. Horton. Our finding is therefore that the respondent received not less than 3 and not more than 7 votes in excess of the total number of votes cast for

and on appeal in the superior court. The defendant is charged with knowingly having in his possession on November 17, 1911, a certain bill, slip, certificate, token, and other device and article, such as is used in carrying on, promoting, and playing a game commonly known as policy and policy lottery. It is now before this court on defendant's bill of exceptions, which includes exceptions to the admission and exclusion of evidence, to the ruling of the court on a motion to dismiss after all the testimony was in, to the denial of a motion to direct a verdict of acquittal and of a motion for a new trial, on the grounds that the verdict was against the law and the evidence.

The offense is charged in the language of the statute, with the inversion of the words "policy" and "policy lottery," which is, of course, not material.

The evidence amply supports the complaint, and, in our opinion, the verdict was neither against the law nor the evidence.

In our judgment, also, not any of the other exceptions are well taken.

All of the defendant's exceptions are overruled, and the case is remitted to the superior court for further proceedings upon the verdict.

(Supreme Judicial Court of Maine. April 3, have been accepted by the jury as more sat

isfactory proof of the original location of the plaintiffs' northerly line than the indefinite In ascertaining the boundaries of a tract and unreliable evidence in regard to the podescribed in a deed, monuments control dis-sition of the "spruce tree marked." As the stances, except when a monument named no longer exists, and its location cannot be proved. alleged trespasses were committed north of [Ed. Note. For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. § 3.*]

Elmer P. Spofford, for plaintiffs. Deasy & the plaintiffs as "consisting simply of a couLynam, of Bar Harbor, for defendant.

But the defendant further contends that, even if the fence had been built 20 years before the alleged trespass, the plaintiffs' possession was interrupted by acts of ownership exercised by the defendant's predecessor in In the case at bar the measurement of the title; and he introduces evidence showing For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes