160 Ky. 528 | Ky. Ct. App. | 1914
Opinion of the Court by
Eeversing.
At the regular -election held in 1913 in the county of Breathitt, appellant, A. A. Allen, was the Democratic candidate, and appellee, John C. Griffith, the Eepublican candidate, for the office of jailer. On the face of the returns appellee received a majority of 100 votes, and was awarded the certificate of election. In due time appellant filed this proceeding contesting the -election. He asked that a certificate of election he awarded to him or that the election be declared void. The trial court adjudged that he was not entitled to the relief asked for, and dismissed the petition. From that judgment this appeal is prosecuted.
The evidence shows that in Crockettsville Precinct No. 8, which gave appellee a majority of 95 votes, a dispute arose early in the afternoon as to the right of a certain voter to vote. The voter was sworn, and three of the officers concluded that he had a right to vote, while Bobin Turner, the sheriff of election, refused to let him vote. Several witnesses say that Bobin Turner was intoxicated, as was also another officer of election. Bobin Turner was a partisan of appellee. Bobin Turner struck Walter Deaton, the Democratic Judge, on the back. About that time some one threw a rock through the window. A little later some one else threw something through the window which struck Walter Deaton on the hand. Just then two or three parties at the window yelled to Deaton to come on or they would kill him. Deaton, fearing for his life, took his saddle pockets and went out the window. Some of the parties are also shown to have had their pistols out. After Deaton left another officer was put in his place. Later on the ballot box was prized open for the purpose of counting the votes. Those who counted the votes say that they were counted correctly. According to appellant’s evidence, from 90 to 125 votes were voted openly on the table for appellee, without the voters making oath to their disability. Only one person was sworn during the day, and that was the young man over whose vote the dispute arose. According to appellee’s evidence, there was a large number of votes so cast, but the number was not quite as large as stated by appellant’s witnesses. ■ Appellee’s witnesses also state Deaton was in no danger, and that he left because the election was not going his way.
In Jackson Precinct No. 2, which gave appellee a ma
In Elkatawa Precinct No. 3 appellant’s evidence is to the effect that one man came into the booth after the poles were closed, and acted as Republican inspector, although the regular Republican inspector was present. On arriving he announced that he was a rapid fire mathematician, and could count the votes in a little while. He took charge of the count, and other supporters of appellee Griffith would frequently distract the attention of Flint Miller, the Democratic sheriff of election, by having him called out of the voting place and telling him that his child was sick and about to die., This happened several times. In making the tally the inspector would frequently tally for appellant and the other Democratic candidates by making a tally in the same pencil mark three or four times. In counting the vote he would frequently count appellant’s vote for appellee Griffith, and when his attention was called to the error he would say “I will pay it back next time.” Sometimes he would pay it back and sometimes he wouldn’t.
In Oakdale Precinct No. 5 there was some testimony of bribery.
In addition to showing the foregoing facts, plaintiff alleged that in Precincts Nos. 2, 3, 4, 5, 6 and 7, the of
As counter-grounds for contest appellee charged that 100 illegal votes were cast for appellant in South Fork Precinct No. 17. There was some proof conducing to show that several non-residents were permitted to vote, but the record does not show for whom they voted.
In Lost Creek Precinct No. 10 it is shown that 15 persons voted openly on the table for appellant, without being sworn as to their disability.
In Blackburn Precinct No. 11 appellee’s evidence shows that 72 voters voted openly on the table for appellant, without having been sworn, and his witnesses give the names of 60 of such voters. There is further evidence to the effect that in this precinct no booths were provided for the voters. It is shown, however, that the voters went to the end of the room to vote, but it does not appear that they exposed their ballots while voting.
Here we have a case where, in addition to the violence shown in Crockettsville Precinct No. 8, from 90 to 125 persons voted openly on the table without being sworn as to their disability. In Jackson Precinct No. 2, a very large percentage of the 125 voters who voted before the voting place was changed exposed their ballots to outside parties. Several also voted on the table without being sworn. In Elkatawa Precinct No. 3 there was fraud in the count of the ballots, though to what extent does not exactly appear. In Lost Creek No. 10, 15 voters who had not been sworn were permitted to vote openly on the table. In Buckhorn Precinct No. 11 there were from 60 to 75 ballots voted openly on the table, and none of the voters were sworn as to their disability.
It is well settled that ballots voted openly on the table by voters who are not sworn as to their disability are illegal and can not be counted. It is also the rule to purge the election of such illegal votes where the number is small and it is reasonably certain for whom they were east, and not to throw out the entire precinct. In this case, however, the number of illegal votes cast on each side is so large, and there is such uncertainty as to the precise number and as to the persons for. whom cast, that we can not say with any reasonable certainty that either appellant or appellee was elected It may be that in the early operation of the secret ballot there was some
This conclusion makes it unnecessary for us to pass on the propriety of the trial court’s action in refusing to open certain ballot boxes to recount the ballots.
For the purpose of emphasizing the provisions of section 1475, Kentucky Statutes, with reference to the manner of voting by illiterate, blind or disabled persons, we deem it proper in this connection to call attention to the fact that neither the clerk of election nor any other officer has authority to mark the ballot of the election unless the elector is blind or so physically disabled as to be unable to mark his ballot, and shall so declare on oath, in which event it must be done by the clerk alone. 'Where the elector simply declares on oath that by reason of inability to read the English language he is unable to mark his ballot, he may then declare his choice of candidates or party tickets to the clerk. It is then the duty of the clerk, in the presence of the other election officers, to make a
Judgment reversed and cause remanded, with directions to enter a judgment setting aside the election in question.