190 Ind. 51 | Ind. | 1920
— This was an action by the appellant to contest the election of appellee to the office of clerk of the Bartholomew Circuit Court. The only error assigned is the overruling of appellants’, motion for a new trial.
No special finding was asked nor made, and we can only conjecture as to which of the ballots introduced in evidence or concerning which evidence was offered were
It is urged that the evidence does not sustain the finding. It appears that thirty-eight witnesses gave oral testimony, which is set out in 241 legal cap typewritten pages of the transcript, and that printed and written exhibits numbered from 1 to 193, inclusive, were read in evidence, the originals of which were attached to the bill of exceptions as parts of it, until they were detached for safe-keeping, by order of this court. But there is no index whatever in the transcript or bill of exceptions to any of the exhibits. And, while appellant has put into its “argument” (pages 113 to 118 of appellant’s brief) an index to ninety of these exhibits, there are more than a hundred not indexed even there. And appellant sets out, in thirty pages of his brief, a portion of the testimony of fourteen of the thirty-eight witnesses, and a general assertion of what was the effect of the facts shown by nineteen of the exhibits, but does not even suggest what evidence was given by the other twenty-four witnesses, nor what facts appeared from the other 174 exhibits. Bradley v. Onstott (1914), 180 Ind. 687, 103 N. E. 798.
Counsel are in error in assuming that in such a case
The appellant’s brief is not so prepared as to present any question upon the admissibility of this evidence. But, if the declarations were made in connection with the removal by the witness of his family and household" goods to another precinct and as explanatory of what he was doing, they would be competent to rebut the inference that in so removing he changed his place of residence. And there is no suggestion that they were made at any other time, nor did appellant object on the ground that.the showing that they were made in connection with such removal and as explanatory of it was insufficient.
A party who has made out his own case by introducing a kind of evidence objected to by his adversary is in no position to insist that, while such evidence remains in the record in his own favor, other evidence of the same class favorable to his adversary shall be excluded. Whether a party who has introduced incompetent evidence of a kind afterward offered by his adversary may successfully move to strike out and reject all of such evidence, including that which is in his own favor, is a question not before the court as to which we decide nothing.
And since the general election law only provides for furnishing blue pencils for use in the booths at the polling places, and prohibits, under severe penalty, the removal from the room in which the election is held of any blue pencils furnished by the election board for marking ballots, or the possession outside of that , room of pencils so furnished, we cannot infer that the-legislature intended that the ballot of an absent voter should be rejected because not marked with one of those pencils. Acts 1897 p. 49, §3, §6927 Bums 1914; Acts 1889
A construction of this statute which would result in the disfranchisement of the many soldiers who, in 1918, complied with all the provisions the Absent Voters’ Act, because they failed also to comply with the act of 1897, by using only a blue pencil to mark their ballots, should not be adopted unless the legislative intent to that effect is so clearly expressed as to be unmistakable. So far from this being true, we think that only by a very strained construction could the general election law be held to command the use of blue pencils by absent voters.
There was no error in admitting in evidence and .counting for the candidates named therein the ballots cast by the absent voters which were marked with ink, and with pencils that did not have blue lead, where they were not otherwise open to objection.
The judgment is affirmed.