*1 Arrington v. Ladd.
4-2921 Opinion delivered December 1932. Montgomery W. & Morrow, J. J. Williams J. appellant. Williams, Reynolds Hays McKennon,
Paul & Mase & Smallwood, Appellant, appellee, and D. Bart- J. B. McIíaNey, County, were rival candidates of Johnson
lett sheriff primary Arkansas, August in the Democratic election held According to the official returns made judges central com- and clerks *2 received mittee, votes, 1,000 1,247 appellee gave votes and Bartlett 387 which votes, plurality, and a certificate of nomination was there- votes after issued to him to the Democratic nominee sheriff. prescribed by appellant the time law insti-
Within appellee, tuted this action to contest the nomination of alleging illegal that more than 900 were cast votes against appellant, il- and that such votes were printed not on list of were electors, legally properly sundry grounds and assessed, and other Appellee illegality. time answered, and Bartlett due joined. September 22, issues were Thereafter on parties appeal agreed stipulated 1932, this naming election, there were 513 votes cast illegal voters, that were because their did not names appear printed on the certified list of electors of the county. ,to September From that date the court heard 30, testimony illegal to other votes at which time adjourned court to October to hold an interven- was ing regular Conway County. term of court in On Oc- testimony tober the court from the found that there illegal 239 other cast in said votes illegal agreed made a total of then votes cast. judge that each side should select or referee and a appoint judge clerk, that the third or and that referee, this committee examine the should bal- agreed illegal, lots they held and to be ascertain for whom report findings for sheriff, voted their the court. The court then deduct would the number of illegal each from had received the total of each as shown the election and declare result ac- officials, cordingly. Objection appellant judge was made appointed by or referee so the court court, sat Thereupon with the committee as the third man. including judge, began the trial committee, to make an agreed tabulation of the examination and shortly adjudged illegal, to be thereafter it was dis- judge large covered or a number ballots, from a vote them, showed appel- to a vote for soon as As attacking discovery, motion lee learned of this filed seeking stop the count. the ballots and Proof then taken refer- sides, on this motion both counted, red to and later all the ballots were hereinafter, many illegal, changes both with the result that were found to have been made ballots. sus- taining this motion the court found: “That the ballots counting integrity, have lost their there could be and, recounting or ballots because destruction integrity, of their the election not im- returns are peached by testimony, *3 the and that all votes cast stand as by and the counted election the officials, contest and Judgment accordingly should be dismissed.” enter- appeal. ed, from which is this
Appellant argues eight propositions for a reversal necessary only of the case. We find it to discuss the principal as the sixth, one, fourth, seventh eighth pass as incidental thereto. The others out be- cause of the disposition we make of the case. principal question did the err sus- is,
taining appellee’s attacking the motion the dismissing* answering the bállots and in the contest? In question negative, this the in we are not unmindful of
unpleasant speak, taste left in mouth, to unsatisfactory illegal of with result, out of 752 votes a total of 2,63'4votes for sheriff. Had cast honesty remained inviolate, as the law and common decency require, might changed then the result have been by casting illegal out But ballots. the court has if, goodly found, the ballots or a number of them have been changed, altered, erased, to remarked so as show they were cast for a other than candidate the one for pursued whom the voter cast it, and this is such origin- extent that the court is unable to recount them as ally necessity then of their has de- stroyed. exactly This is what the trial court found. has question determining
In this we are bound findings settled rule of this court that the of fact a sitting jury are conclusive circuit court as a jury, no different the rule court as the verdict of a Ark. Buchanan, in election contest cases. Williams numerous to 259, 110 are too S. W. 1024. The decisions jury mention that the will not he disturbed verdict of support it, evidence to unless there is substantial light when the verdict. viewed most favorable to supported evi- Is the court’s substantial judge, including dis- committee, dence? When changed, illegal covered that and contestee motion to brought was filed contest dismiss townships, in '28 from several witnesses, illegal to have been who changed and shown ballots, had voted appellee. to one for from ballot they appel- These testified witnesses refused to for whom lant. Also 8 other witnesses ap- change from but their ballots showed voted, pellant appellee. of a was other evidence There directed satisfied, naturé. The court, similar proceed, judge a third the committee to the count being agreed to and all illegal. that 111 found both
examined, from a vote for votes had been approximately illegal appellant, votes, one for appellant, originally now be for show to *4 township cast not numbered the first 40 votes were one judges when examined the com- of election, irregu- other numbered, all were found to be mittee in box, were found this same as disclosed larities testimony judges after of the which occurred they it to central committee. think had We delivered support that the this was court’s sufficient they destroyed, the ballots had been satisfactory longer evidence of the result. furnished knowing exactly were Without accurately That a not determine the result. court could changed, large number of ballots been can plainly be no doubt as the are erasures visible without magnifying glass. of a aid says testimony appellant
But the voters they differently from that their bal- shown parol incompetent, (1) lots was inadmissible evidence be introduced contradict the ballot cannot destroyed, (2) where the ballot not lost or has been being in ballot, that the is the best evidence as evidence, to how the Gibbs, elector voted. v. Condren Ark. support S. W. cited to the contention. In that is case the court said: “A voter cannot be allowed to tes- tify person that he voted one when he admits showing changed, cast ballot, his not has since been person. that he upon voted another This rule founded is principle writing, that the is a ballot and so can- by parol not be contradicted evidence. like other But, writings, changed be shown that the ballot has been since it was cast or that another or different ballot has put place.” in its already
But here the
of the
ballots
witnesses had
they
changed,
been examined, and showed
permitting
the court did not err in
witnesses
tes-
tify
they
appellant
voted
whereas the bal-
they
lots as
showed
voted for
It is
true that the ballots were not shown to the witnesses, nor
they
identify
asked to
them.
It would be difficult
impossible
identify
if not
for a witness to
a ballot not
signed by
subject
inquiry
him.
in-
was the
tegrity of the ballot, since
ballots themselves
they
changed,
showed
their face that
had it was
quite proper
testimony
to admit
as to how
actually
holding
voted. Nor
does
in the case of Cain
Lee,
Carl
against
94 giving votes and Bartlett 29 votes, plurality of 37, and that he be should declared the nominee on agree, this account. We cannot in this Meroney, in Tucker v. announced principle
respect here. There 631, 182 Ark. 32 S. W. (2d) governs to do so townships, were 24 voting precincts in the other disfranchise would voters or of the election officials. without fault on their part call to Nor we think the court erred refusing do to as to testify in all the voters hold The law not the court to require had voted. does develops an if it there contest, determine may is no on which the legal basis Brown v. Nisler, contest, Compare it must fail. 179 Ark. 178, 15 (2d) S. W. that, many changes,
The court found no safe or certain determine way could result. this we think the court correct. Even had the. voters whose though called as to how still the result they voted, doubt, be in evidence shows 95 ballots voting would all against simple candidates. would have been mat- ter for thief who unlawful access to have out the name of whom marked the candidate for the voter had cast ballot as to a vote against his show all three. Or the voter failed to mark out again name but all any on, left them would to mark be easy or scratch off two and a vote for third, show and in either case no one detect a No change. could erasure would We the result appear. agree not be could determined. This sub- supported is very stantial evidence, must affirmed. judgment be
Smith, J., The effect of the practical (dissenting). that an not opinion is election be contested majority thereof where 'ballots returns mutilated to extent sufficient destroy presump- tion of otherwise verity would be indulged. think conclusion, cases cited do and I sustain case can be found. such we contrary, On the case Taaffe Sanderson, 74: “The real 173 Ark. S. W. object in all election contest cases courts determine *6 n whetherthe contestant or the respondent has received highest legal the guiding number should be of votes. This like the star of Bethlehem the wise men
star, opinion only pos- majority of it not old.” Tet the makes object, cer- its defeat sible to defeat this real but makes destroys thief or mutilates tain where some election so that the court erasures, etc., alterations, originally majority The is unable to recount them as cast. appear happened if can to decide that there be this has no contest. might justification if it were
This rule have some ¿applied adherents, to a or himself, contestant who whose rule is not lim- mutilated but the thus ballots; finding, showing, ited. There no in no as to fact, who had not know mutilated the ballots. We do whether this was the work of of the contestant or adherents majority those of the contestee. The treat this as immaterial. ought
It not to be the law that fraudulent elections may provided not be contested of the bal- destroyed by If lots has been mutilation or alteration. actual nominee law, this be the then one who was not the may defeat a contest of his nomination the added having wrong mutilating or that additional the ballots perpetrated; previous wrong holding No of this court or so leads to so unfair unfortunate. decision majority refusing say The did not err in court in call all the voters require for the reason that the law does not
the court to it is also said that if election; hold develops basis which the determine a contest it fail. must required court cannot be to hold another elec- may, re- tion; should, but the court determine who majority in the election which ceived right held contested, judicially ought to have determined contestant this fact desperation. not to an act of be defeated eight appears destroyed; the ex- bnt, had not been we had all the ballots had treme case of an election which *7 destroyed, yet right or their been stolen There even would, the election wonld remain. contest for a that basis contest; extreme be a basis ease, all of them, for the to hear the electors, necessary, party either wish to or such of them as testify, would now vote, not how heard, they then voted. say Kirby con- that Mr. I am authorized Justice expressed. in the views here curs Taylor. Company Home Life Insurance 4-2797 January Opinion delivered