152 N.W. 337 | Supreme Court Of The Territory Of Dakota | 1915
This is an appeal from an election contest wherein the contestant sought a recount of the 'ballots cast in certain precincts. After introducing- evidence showing the disposition of the ballot boxes at the -close of the canvass of the votes by the election judges of the several precinct's, as well as the care of such boxes from such time until the trial of the cause below, contestant offered each box in evidence, together with “the poll •book and the ballots therein contained, and asks that the court order the same opened and the ballots counted.” Respondent objected to each of said offers because no proper foundation had been laid to the introduction of the ballot box in evidence; because the -ballot box had not been delivered info -the care of the proper official by the election judges; because such box had not been kept properly locked at all times; because the key to the box had not been timely delivered to the proper custodian; because the box had not been kept in a secure place-; -because such box had not been so cared for as to keep it above suspicion in a contest case; and because there was no allegation in the notice of contest under which the said box or the ballots, as contained in said exhibit, would be competent evidence. The objections were sustained; findings and judgment were entered for the respondent
“It certainly would have -been proper for the court to have done so, in this case, and this court will, we believe, presume that il would have done so if requested. On the other hand, it certainly would have been, in the highest degree, improper for the court to have decided that whatever was in the box' was competent evidence without an inspection of the contents.
It will be noticed from the above quotation that respondent is attempting to justify the ruling of the court upon the ground that appellant was in-error in asking that the ballots toe received in evidence and counted, when, at the time of such request, no one knew what was in the boxes or the condition of their contents. While we think it would have been proper for the appellant to have offered- the contents of said box together with said box for one purpose — to reveal whether the ballots had -been so cared for as to entitle them to be received as evidence of the several voters' choice for the office in question — the appellant erred in asking the court, before it had inspected the ballots to ascertain whether their condition was such as to free them from suspicion, to rule upon whether it would count them. It will be noticed that this particular ground of objection was not suggested to the trial court by respondent; furthermore, we think -that, while the trial court was justified in refusing to pass upon the
There was no merit 'in the claim that there were no allegations- in the notice of contest under which the -boxes or ballots ■would be competent evidence.
The judgment and order appealed from are' -reversed.