v . " ..' ........
THE UNION REPUBLICAN. WINSTON-SALEIL N. 0. SEPTEMBER 21, 1911. J
REFEREE BOBBINS REPORTS.
SAYS FLYNT IS ELECTED SHERIFF OF FOR
SYTH COUNTY BY TWO VOTES.
Gives Jones, Republican, Middle Fork Township
ana riym, democrat, 15 road bay Township No
Appeal rei ueciaea upon Text of the Findings in
tne case. - . ; ,v, :
Capt. F. C. Robbins, of Lexington,
referee in the case of the State of
Xorth Carolina on the Relation of D
A. Junes vs. George W. Flynt, filed his
report with the clerk of the superior
fourt -Monday auernoon at 5 o'clock,
the report being in favor of Sheriff
Flvnt.
. liie reieree ueeiuea tne vote in
Broadbay township in favor of Slier
iff Fly n't ami the vote in Middle Fork
township, precinct No. 1, in favor of
Mr. Jones, giving Sheriff Flynt the of
fice by a majority of two.
The referee sustains a priina facie
case as to Broadbay township and
finds as a fact that Jones received 433
and Flynt 214.
He finds as a fact in Middle Fork
township that Jones received 196 votes
and Flynt 4!), giving Flynt a major
ity of two votes in the county.
The referee finds that in the event
he has made an error in overruling a
prima facie case as to Middle Fork
and that Jones only received 18G votes
iu this precinct, then Flynt 's majority
would be 12.
The report of Referee Robbins in
the Jones vs. Flynt contest case for
the ofiice of Sheriff of Forsyth county
and filed Monday was a lengthy .doc
ument, covering 39 closely type-written
pages. Whether or not the case
will be argued at this term of court on
exceptions filed on questions of law
we cannot say, or whether an apeal
will he taken or the Referee's decision
be 'accepted as final, or has the coun
sel for Jones yet decided.
The history of the case is familiar
to the readers of The Republican, but
as a matter of record let us briefly
summarizei
Nov. 11, 1910, there was a contro
versy before the Canvassing Hoard
as to returns from Broadbay and Mid
dle Fork township No 1. The returns
gave Flynt, Democrat, the office by a
small majority. The Republicans
claimed errors in making out returns
in these two townships, which if cor
rected, would give Jones, Republican,
the otliee of Sherif by a small ma
jority. Jan. 20th, 1911, Attorney General
Bickett gave 1). A. Jones permission
to bring suiiJn the name of the State
lor the office of Sheriff of Forsyth
county.
Feb. 3rd, 1911, summons was served,
entitled State of N. C, in relation of
I). A. Jones vs. George W. Flynt, ask
.ihg that he recover jossession of the
ofiice of Sheriff of Fjpyth county.
Feb. 27th, petition to have the re
lator appear before the Clerk of the
Superior Court to be examined under
Sections 8t" and 8Gu" of the Revisal of
1!)0." wus inade and an order was is
sued to Coroner W. N. Dalton to noti
fy the relator to bo present before the
Clerk of the Superior Court on March
7th and on. this date the examination
of tlie'adverse parties were held.
March 21th answer of the defend
ant to the complaint of relator was
filed.
At May term, 1911, Forsyth Superi
or Court, by agreement of counsel, the
Judfre presiding appointed Capt, F.
C. Robbins, of Lexington, I.., as
Referee to ascertain the correct votes
east for the- two candidates in.Middle
Fork township, precinct No. 1, and in
Broadbav township. All other mat
ters were waived.
July 13th hearing of evidence was
begun before Referee at Court House
in this city and lasted several days.
The stenotrranhie notes of evidence
covered 57(5 typewritten pages. Coun
sel for 'the relator put on 44 witnesses
in direct examination and in remit
tal. Counsel for the defendant put on
19 witnesses. Counsel for the relator
entered 23 exhibits consisting of tally
sheets and tickets and counsel for the
defendant entered G exhibits consist
ing of the original returns as made to
county board of canvassers,
" August 30th case was argued before
Referee at Lexington, N. C. .
Sept. 18, Report of Referee filed
with Clerk of the Suierior Court.
the parties and their counsels, the re
lator being represented by his attor
neys, Lindsay Patterson, A. E. Hol
ton, R. C. Strudwick and W. P. By-
num, r,sqs., and the defendant bv his
attorneys, C. B. Watson, A. II. Filer,
G. II. Hastings, and E. B. Jones, to
near me evidence offered by the re
spective parties, and on the 30th dav
of August, 1911, heard arguments of
counsel in the case. i;
To N save words, the relator of the
plaintiff is spoken of as Mr. Jones,
the defendant as Mr. Flynt.; "Ex."
is used for exhibit and the lire person
al pronoun instead of the word ref
eree. ,
As to the precinct, Broadbay, Mr.
Jones contends that the countv board
of canvassers counted for him ten
votes less than he was entitled to.
that is, that they counted fori him 433
votes j w hereas he contends that he re
ceived and is entitled to have counted
for him 443 votes. The evidence he
offers in support of his contention is
contained in substance in the forego
ing recital of it, but since it clusters
around his Ex. ro, 5, I bere give a
brief summary of it as consisting of
plaintiff's Ex. No. 10, known as the
Reynolds return, and the plaintiff's
hxs. 13, 14, 1;, 10 and 17, being en
tries made on tickets by the several
witnesses on the night of the election,
and the telephone message overheard,
all of which, it is plain to Mr. Jones
that he received 443 votes:
Also plaintiff's Ex. No. J8, being
the poll book of Broadbayji township
showing GG8 votes cast at I that box.
Also plaintiff's Ex. No. 21, (being du
plicate return of votes from Salem
precinct, and plaintiff's Ejf. No. 22,
being duplicate returns of votes from
Third Ward Winston, and plaintiff's
Ex. No, 23, being duplicate return of
votes from Abbott's Creek, j
Ex. No. 11 referred to in the evi
dence was abandoned by ijtfr. Jones'
counsel in the argument and numbers
12 and 20 on account of! misunder
standing, do not appear. i
And on the other hand! Mr. Flynt
conteitds that he received 214 votes
at this precinct (about which there is
no dispute) and that Mr. Jjnes receiv
ed and is entitled to have counted for
him only 433 votes at this precinct,
and that the same were properly
counted for him by the county board
of canvassers. M
In support ot his contention he of
fers in evidence defendant s Ex. No.
2, which is the original retiirn brought
in by W. U. Kominger, registrar, ap
pointed for that purpose, tjo the county
board of canvassers signjed and cer
tified. by the judges of election, which
was passed upon by the bord giving
Mr. Jones 433 votes, written and in
fiViires. and Mr. Flvnt 214. written
and in figures. There wa ? also before
the board defendant's Ex. No. 3
brought in fronl the office of Mr. W.
T. Wilson, secretary ot the county
board of elections, where it had been
deposited, also signed nd certified
bv said office,r showing for Mr. Jones
433 votes written and in figures and
for Mr. Flvnt 214 votea written and
in figures. Both of these Exs. No. 2
and No. 3, are what are known as the
"long sheets," the onlyj official ones,
Mr. W. T. Wilson testifies, which
were sent out to the several precincts.
Another defendant's Fx. 4, was al
so introduced, eoming from the office
of Mr. Wilson, found by him in the
envelope with Ex. Noi 3 and signed
and certified by said officers of elec
tion and showing for Mr. Jones 443
Votes, written in words, and 433 in
figures and for Mr. Flynt 214 votes,
written and in figures. This Ex. No. 4
is on what is known as the "short
slipct ' These two Exs. 3 and 4 were
introduced by Mr. Flynt for the pur
pose, so his counsel said in me argu
ments, of contradicting Mr. Reynolds
may be beard by a canvassing board,
and moreover one of the presumptions
iifuu uru iue aocinne ina tne re
turn, is prime facie evidence of the
result of the election is based, is that
sworn officers will discharge their du
lies with care. Therefore, in this
case, wherein are some peculiar feat
ures, with some misgivings as to the
soundness of my ruling," I overruled
the objection and admitted the evi
dence offered in behalf of Mr. Jones
Having considered and weighed it
all with care I here state as briefly as
possible some of j the points in it,
which led me to the conclusions
reached :
Plaintiff's Ex.; No. 10 showing 443
votes for Mr. Jones, written and in
tigures, and 214 for Mr. Flynt writ
ten and in figures, is signed and cer
tified by election' officers, and Mr. J
F. Reynolds testifies that he made it
out and that it was the first one and
put it in an envelope, and Mr. Rom-
inger took it ; and Mr. Glenn Hoover
one of the judges, testified that after
they get through, sijnuus returns Mr.
Rominger took charge of them; Sid
ney Teague, the other judge, testifies
that he don't know whether Ex. No.
10 was given to j Rominerer or not.
Mr. Rominger brought the sealed en
velope of the countv vote to the can
vassing board and Mr. Bynuai, secre
tary testifies that he took out of that
envelope defendant's Ex. No. 2; that
mere was no other in it and that Ex.
10 was not in it ; and Mr. Foy testifies
that he saw Mr Bynum take Ex. 2
out of the envelope.
Reynolds further testifies on his di
rect examination that he made out
but two returns, plaintiff's Ex. No. 10
and defendant 's Ex. No. 3, and per
haps one other for congress but on
Wilson's examination, when confront
ed with defendant's Ex. No. 4, he ad
mits that he filled that out also.. He
also testifies that while making out
Ex. No. 10 he did not sav. "It is easv
to think one thing and write an
other," in. which , he is contradicted
by Sidney M. Teague one of the jud
ges. And Mr. Langston also testifies
that he thinks Mr. Reynolds made
that remark.
Also when he; came in before the
canvassing board he testifies that he
walked up to. the table and one of the
ii Ex.
thing
wrong about this," and he also denies!
pulling Ex. N. JO out of his pocket;
whereas several witnesses for Mr.
Jones, to-wit : May, Tavis, Savage and
Boyles, and several witnesses for Mr.
Flynt, to-wit: Foy, Shamel. Conrad,
Goode, Hinsbawjand others, all testi-
ty thai he hrst got hold of the wrong!
return, defendant's Ex. No. 2 and
said, "It is not right, or "it
is
Referee's Report.
The Republican prints herewith the
findings of Referee Robbins, together
with his summary of the evidence in
both Broadbav and Middle Fork town
filiin W 1. it f'linmrises the essential
fentiir. .," Hio rpiwirt ' The rest of
the document was a review of the evi
dence, verbatim, as given at the bear
ing before' Capt. Robbins in Mns cii)
To the Simcrior Court:
In obedience to the order of the
court in this action made at May term
1910, appointing the undersigned ref
eree to hear and determine said cause
and that the referee shall consider and
determine only the votes actually cast
for the office of sheriff of said, county,
in the township of Middle Fork Pre
cinct No. 1, and the township of
Broadbay, in said county, for the re
lator and for the defendant at the
election of 1910, the referee makes the
followinff report:
: After due notice the referee pro
ceeded on the 11th, 12th and ' 13th
days of July, 1911,in the presence of
and other witnesses.
Excent Ex. 18 all the evidence of
fWpd bv Mr. Jones was in apt time
ohieeled to bv counsel for Mr. Flynl,
- . . l 1 A.
for that it is incomieicni io comm
dict official returns ami in many pla
ces, in the book or evidence, u
iwars that the objections j was
in general terms, and Ex.jNo. 21 and
'3 were obiected to on the ground
that they throw no light on the ques
tion at issue. i
Wlnlrt the statute provides for but
one original return, or statement of
the result of the election to oe sent
un bv tlm nrecinct officers to the coun
ty board of canvassers and the dec
lfirrttion of the result of jthe election
bv said board issues a'-right '.of the
oiie (Mr. Flynt in this case) thereby
ascertained to be elected, yet in a
timcpedinor like this the matter is
oien to examination to determine the
correctness and sumciency oi me re
turn and thd true result of the elec
f ion
Wbile manv of the authorities cited
bv counsel for Mr. Flynt and others
I have been awe to consult- miu iu
snoli evidence as is offered by Mr
Jones is incompetent and sbonld be
excluded vet-1 find some conflict on
that point in the course of the differ
onf ctnliitP: nnd tnose cueu i num
wrong, ' ' or soraei such words ; and Mr.
Beroth and Mr.! Stafford testify that
he did not get it, Ex. No. 10, off the
table, nor was it handed to him from
the table but that he pulled it out of
his pocket, Mr. Stafford saying, "on j
of his left breast-coat pocket." Mr.
Ilinshaw testihejrthat when Mr. Rey
nolds got half way to the table on
coming in he saw the paper in his,
Reynolds' hand; and Mr. Crouse tes
tifies that that paper was not on the
table prior to that time.
This with other evidence on that
point shows by the greater weight of
evidence that Ex. No. 10 was brought
in before the board by Mr. Reynolds.
In filling out defendant s Ex. No.
3 he testifies that he did not sav,
"No Doe. (M. E. T.) aint that right,"
and "is that right" but Mr. Lang
ston testifies that he did say it.
It seems to be a matter of some
weight, if not of considerable weight,
that Mr. Reynolds suggested that the
tally sheets, especially that of ' Mr.
CTodfelter be left on the table at the
counting of the votes on the night of
the election, as Mr. Clodfelter testi
fies that he did; and again when it
was suggested before the canvassing
board in the dispute about the vote m
Broadbav that the tally sheets be
sent for Mr.- Reynolds said they were
destroyed, so Mr. Foy testifies, and
Mr. Bvnum says that he thinks Mr.
Reynolds said; they were destroyed.
Basins his ' contention that Mr.
Jones received 443 votes, upon his in
spection of that tally sheet and sev
eral of his party friends also point-
inir to that tally sheet as the source
of their entries on tickets it is little
short of amazing that Mr. Reynolds
did not see to it that that tally sheet
was safely preserved.
He is also contradicted about drink
ing liquor that night and about ask
ing somo gentlemen to go by Ins house
for "Wilkes t ounty l-orn," and
other minor points which appear in
the evidence,1 but, which 1 do not stop
to mention. !
It is also very significant that after
admitting that he took great interest
in the election, and while contending
for 443 for Mr. Jones is right because
he bad so written it that night from
Mr. Geo. Clodfelter' tally sheet as he
says, Mr. Reynolds then wrote out de
fendant 's Ex. No. J which for Mr.
Jones 443 written and in figures and
for Mr. Flynt 214 written and in fig
ures, and then another defendant's
Ex. No. 4, which shows for Mr. Jones
443 written and 433 in figures.
It seems to me that these mtroduc
tions and thiar sort of action can only
be accountedVfor on the ground that
Mr. Reynolds' memory is treacherous.
and on the fhrther ground that being
anxious for Mr. Jones' election, under
the impulse of partizan zeal to run his
vote up, he Some how or other got
those figures' 443, into his head under
the force of the same zeal now wishes
to maintaiit them.
A number of witnesses on both sides
testify that i Mr. Reynolds claimed
ined oeiore me ooaru ana yet it is
significant that Mr. " Rominger after
being sworn as a witness for Mr.
Jones, was not examined, although he
was one of the election officers which
Mr. Reynolds claimed knew' all about
how the vote wasand whether Mr.
Jones received 443 votes;' and- it is
also noticeable that neither of the jud
ges or the election Air. Hoover and
Mr. Sidney Teague, testify as to
what the vote for Mr, Jones was al
though both were examined for Mr.
Jones. ; t'1 - "-.'
These two judges testify that they
heard the declaration of the result of
the vote when the counting was com
pleted.'The statute says, "The count4
ing of votes shall be continued with
out adjournment until completed and
the result thereof declared." But I
have not been able to find any decision
defining the meaning and purpose of
the words "the result thereof de
clared." Whatever ltsjneaning I do
not think it can mean simply a dee
laration made by. one tallyman to an
other, as Mr. Clodfelter says he did
to MK Teague alone as they added up
the tally sheets, although it may have
been overheard by three or four men
standing around Mr. Reynolds, Mr.
Charlie Teague, Mr. Sides and Mr.
Stewart, as appears in their testi
mony. , i
Andrew Stewart.' Cicero Jones, S,
A. Sides and J. F. Reynolds all testify
that they saw the tally sheet of Mr,
Geo. Clodfelter as he ran up the vote
and it showed 443 for Mr. Jones and
it down on said
me that it would
Fork' making' 2,924 ' giving Mn Geo,
W. Flynt a majority of 12. ,
And I find as a conclusion a law in
either event that Geo. W. Flynt was
duly elected and is entitled to the of
fice of Sheriff of Forsyth County for
the term of two years next ensuing
the election of Nov. 8, 1910, and that
D. A. Jones relator, 'was not elected
and is not entitled to said office, all of
which is respectfully submitted.
F. C.ROBBINS,
-.' .... .. ',.:..:;, Referee,
they severally took
Exs.
While it seems to
be competent evidence for one present
at the counting and figuring by the
judges and who saw and heard what
they said at the time of the counting
and figuring and saw what they ac
tually did to testify to it: yet it will
be observed that the testimony clus
tering around said Exs. and the en
tries on the tickets are based on what.
Mr. Clodfelter, a tallyman, said and
did and in the abseuee of the tally
sheet I am in grave doubt whether
such evidence is competent at all and
if competent, its weight is quite an
other matter, and declarations of by
standers and excited 1 partisans and
entries made by them on tickets under
such circumstances are I think enti
tled to but little weight.
W." A. Hege testifies that he got
the vote from Mr. Clodfelter 's ticket.
443, and it seems to me that this had
less weight than the ones last above
mentioned.
"Viat J. A. Nicholson testifies he
heard Geo. Clodfelter phone and what
Charie Clodfelter heard him say in
the store i excluded as hearsay
Mr. Jones, Cicero Jones testifies
that independent of the ticket he re
members the vote was 443 for Jones
and 214 for Flynt, but how he got his
opinion does not appear.
Dr. M. E. Teague, the other tally-
roan and a supporter ofMr. Jones and
who must have known what his own
tally sheet showed, filled out the offi
cial return, defendant's Ex. No. 2,
sent in to the county board of can
vassers signed and certified by elec
tion officials, showing for Mr. Jones
443 votes written and in figures and
for Mr. Flvnt 214 votes written and
in' figures; and Mr. Reynolds filled out
defendant 's Ex. No. 3' showing for Mr.
Jones 433 votes written and in figures
and for Mr.Flvnt 214 written and in
figures, and both of these Exs., Nos. 2
and 3, were filled out and signed some
hours after the entries on tickets as
aforesaid. .
The sworn election officials when
they sign and cerlpfy official returns
(notwithstanding SCme carelesness in
signing and certifying too many pa
pers) must have known and seen to it
that they were sending up a correct
return of the votes east for Mr. Jones
and for Mr. Flynt to the county board
of canvassers at this precinct. Broad
bay , which return shows for Mr.
Jones 433 votes written and in figures
and for Mr. Flynt 214 written and in
figures.
After a careful consideration and
weighing of all the evidence, that par
ticularly specified and all the other
offered by Mr. Jones, I am freed to
the conclusion that he has failed by a
preponderance of the evidence to
overthrow the prima facie case made
in favor of Mr. Flynt on said return
passed upon by the canvassing board.
I, therefore, find as a fact that u.
Jones, relator of plaintiff, received
433 votes and that Geo. W. Flynt, de
fendant received 214 votes at Broad
bay precinct. "
Gives Middle rork to Jones.
I also find as a fact that D. A. Jones
relator of plaintiff, received 196 votes
and that Geo. W. Flvnt, defendant,
received 49 votes at Middle Fork pre
cinct No. 1. If, however, it should be
found by the court that I have com
mitted an error in overruling defend
ant's obiechon and admitting the evi
dence offered in favor of Mr. Jones, in
that evidence I find as a fact that Mr,
Jones received 186 votes . and Mr.
Flvnt 49 at this precinct
Adding the nnmbers herein before
found for the parties to the numbers
respectively admitted for each in the
order of reference. I find as a fact
that Geo. W. Flvnt, defendant, re
ceived in the whole county 2,673 (ad
mitted) plus 214 (Broadbav) plus 49
(Middle Fork) making 2,936 and that
D. A. Jones, relator or plaintiff receiv
ed in the whole county 2,30j (admit
ted) . plus 4.33' (Broadbay) plus 196
(Middle Fork) making 2,934, giving
Mr. Geo. W. Flynt a majority of two
votes. '
Or in'lhe alternative event: Mr,
Geo. W. Flynt, defendant, received in
the whole county the 236 aforesaid:
; and Mr. D. A. Jones, relator, received
The decision of Referee Robbins
was a surprise and it was not. The
Republican had formed one of two
conclusions as to the result. First
That he would declare, that while
Jones had received a majority of the
votes in these two townships, that he,
as Referee, could not go behind the
decision of the Board of Canvassers
and thus throw the question npoii the
higher courts for decision. Second:
That he would divide "honors," giv
ing one township to Jones and one to
Flynt, which he did. The contest
seems to have been virtually settled
per the agreement. Naturally the Re
publicans still believe that Jones re
ceived a majority of votes in Broad
bay Township. Middle Fork No. 1 be
ing conceded thim by the Referee,
ami there are Democrats too, of the
same opinion. If there were mistakes
in one, it is quite probable that there
should be also the same in the other
and t life Canvassing Board had the
right to examine witnesses and inquire
into and settle the matter when the
vote was canvassed, had they been al
lowed to do so, t he same as was done
in Bethania, Old Town, Salem Chajiel
and perhaps other townships, when no
votes- for certain officers were given
on the returns and they inquired and
accepted figures from those present
who had them. At the next election,
however, the majority for D. A. Jones
for Forsyth of Forsvth county, will be
such that there will be no need of a
contest. The induction of Flynt into
the office of Sheriff, this term, under
existing circumstances will produce
such a result beyond any question of'
doubt, i
MOVED
TO '. ; I
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