24 N.M. 616 | N.M. | 1918
OPINION OP THE COURT.
At the general election held November 7, 1916, appellant was a candidate on the Republican ticket in Sandoval county for the office of county clerk of said county. Appellee was the candidate on the Democratic ticket. On the face of the returns appellee was elected by seven majority over appellant. Appellant instituted a contest for the office under article 6, c. 32, Code 1915. In his notice of contest he alleged that certain persons not qualified to vote in designated precincts in said county had voted at said election for appellee. He also alleged that the returns made in certain precincts were incorrect. Appellee answered, denying generally the allegations in the notice of contest, and set np the fact that certain illegal votes had been cast in designated precincts for appellant. Appellant asked for a recount of the ballots in certain precincts as authorized by section 1999, Code 1915. The recount was made by the board of county commissioners as in said section provided, and the result certified to the court. There was a discrepancy between the returns made by the election officers as to three precincts so counted, Nos. 5, 8, and 15, and the return made by the board of county commissioners. The count made by the board of county commissioners, if allowed to stand, would alone have given appellant a slight majority.
• The evidence was taken before a commissioner appointed by the court. Appellant introduced evidence to show that in stated precincts certain named persons had voted; that such persons so voting were not residents of the precincts in which they had voted; and it may be stated that the fact that they had voted, and that they were not legal voters within the precincts wherein they so voted, was clearly established by the evidence.
Thereupon appellant placed upon the stand the person so voting and asked for whom he had voted. The witnesses in several instances, without objection, testified that they had voted the Democratic ticket and had voted for the appellee. In other instances the persons so shown to have voted illegally either refused to testify or could not be obtained as a witness. In these cases appellant put in evidence facts and circumstances which he claims show conclusively that the voters in question voted the Democratic ticket. His evidence tended to show that in some instances the voters were taken to the polls by Democratic workers, that they received their ballots from parties engaged in distributing Democratic tickets, and.other facts and circumstances which tended to show that the voters in question supported the Democratic candidates.
After the evidence for the appellant was put in, ap-pellee introduced evidence for the sole purpose of impeaching the recount by the board of county commissioners of the three precincts stated. The evidence on this point was quite voluminous, and it would unduly lengthen this opinion to set it out. The evidence directed to this end consisted, first, of the testimony of the election officers in the three precincts in question to the effect that they had correctly convassed the vote and certified the result. In each precinct there was also evidence of some parties present at the count to the same effect. Second, it was shown that the boxes had been sealed with wax, the key of each box tied to a string and dropped in the aperture for the reception of ballots, and paper or cardboard sealed over the aperturethat, as to precinct No. 5, at the time of the recount by the commissioners the card placed over the aperture had been reversed; that one end of the card was loose, so that the key could be removed. As to one of the other precincts it was shown that the lid of the ballot box had been sealed down with wax at the time of the canvass, in addition to sealing the aperture, and that, at the time of the recount by the board of county commissioners, the lid was not sealed. A paper had been seal.ed over the aperture for the reception of ballots, but it had been sealed in such a manner that the key of the lock could be removed and. replaced without breaking the seal. In the other box the key was sealed inside the aperture. The evidence was to the effect that these boxes, or two of. them at least, had been taken to Bern-alillo, one of the boxes by some one other than the judge of election, it having been sent by a messenger carrying boxes from other precincts. When the boxes reached Bernalillo they were taken by the parties having them in charge to the county clerk’s office. There they were +old either by the county clerk or by some other person that it was their duty to send the boxes to Antonio Lucero, Secretary of State, at Santa Fe. Thereupon the boxes were taken by the persons paving them in charge to the Wells Fargo Express office, in Bernalillo, and were sent by express to the Secretary of State. Just how long these boxes remained in the possession of Mr. Lucero does not clearly appear, but some time after his receipt of the boxes he sent them by express to the county clerk of Sandoval county at Bernalillo. The county clerk testified that, during the time the boxes were in his possession prior to the canvass of the returns by the board of county commissioners, he placed the boxes in a closet in his office, having a wooden door, locked by an ordinary lock, and that each political party appointed guards who stood watch, both day and night, until the completion of the canvass by the board of county commissioners,- that immediately after the canvass 'he placed all the ballot boxes in the iron safe in his office; that his predecessor in office knew the combination to the safe, and that the appellant in this case had been the county clerk of the county immediately prior to the election of appellee’s predecessor; that he purchased the safe and knew the combination; that the ballot boxes remained in the safe until after the institution of the contest herein, .when, by order of the district court, he took the boxes to the First Savings Bank & Trust Company in Albuquerque, and they were placed in the vault of said trust company for safekeeping.
Mr. Montoya testified that he did not know the combination to the safe in the clerk’s office; that while he was county clerk he did not give personal attention to the office, but left it in charge of his deputy, and that the deputy alone knew the combination to the safe.
All the parties having charge of the ballot boxes in question, with the exception of the Wells Fargo Express Company agent, the Secretary of State, and the officers and agents of the First Savings Bank & Trust Company,, testified that while the boxes were in their possession they were not tampered with. The county clerk said that he had not interferred with them, but he did not know wbetber tbe safe bad been opened while they were in it by other persons.
No further evidence was introduced by the contestee. Upon this state of the evidence the contestee moved the court for judgment upon the ground that no legal evidence had been introduced tending to sustain the appellant’s right to the office. Later appellee filed a request for certain findings of fact, and the court found in findings 4 and 5 as follows:
“(4) That the said ballot boxes of precincts 5, 8, and 15, when presented to the hoard of county commissioners to he opened for a recount of the ballots then contained therein, were in such condition that the recount so reported by the said commissioners is discredited; that the seals of the said boxes were broken, and not in the same condition as when they were returned to the clerk by the officers of the election; and the court finds that the evidence is not sufficient to show that the ballots found in the said boxes in said recount were the identical ballots cast at said election, or that the same had not been tampered with or changed. The court further finds that the original certificates of the officers of election held at said precincts 5, 8, and 15 are true, and respectively correctly state .the result Of said election in said precincts.
“(5) That no other competent legal evidence was introduced by the plaintiff to support his contest.”
Judgment was entered for the appellee, from which judgment this appeal is prosecuted.
“The decisions generally support the holding of the reported case to the effect^that circumstantial evidence is admissible to prove for whom illegal votes were cast at an election.”
Many cases are eitel in support of the text. Circumstantial evidence may be resorted to where it does not appear from the testimony of the voter for whom he voted. Tunks v. Vincent, 106 Ky. 829, 51 S. W. 622; Lane v. Bailey, 29 Mont. 548, 75 Pac. 191; People v. Pease, 27 N. Y. 72, 84 Am. Dec. 242, per Selden, J.; Boyer v. Teague, 106 N. C. 626, 11 S. E. 665, 19 Am. St. Rep. 547; Moore v. Sharp, 98 Tenn. 491, 41 S. W. 587. In the note in Ann. Cas. 1912CT, p. 521, will be found many cases showing the facts and circumstances which justify a finding as to the party for whom the illegal vote was cast.
The evidence in the case at bar, as it stood at the time the finding was made by the court, was sufficient to show that appellant was'entitled to the office, and the court erroneously held that there, was no evidence to sustain the contest.
“One who relies, therefore, upon overcoming the prima fa-cie correctness of the official canváss hy a resort to the ballots, must first show that the ballots as presented to the court are intact and genuine. Where a mode of preservation is enjoined by the statute, proof must be made of a substantial compliance with the requirements of that mode. But such requirements are construed1 as directory merely, the object looked to being the preservation inviolate of the ballots. If this is established, it would be manifestly1 unjust to reject them merely because the precise mode of reaching it had not been followed. So, too, when a substantial compliance with the provisions of the statute has been shown, the burden of proof shifts to the contestee of establishing that, notwithstanding this compliance, the ballots have in fact been tampered with, or that they have been exposed under such circumstances that a violation of them might have taken place. But this proof is not made by a naked showing that it was possible for one to have molested them.”
The case of Newhouse v. Alexander, 27 Okl. 46, 110 Pac. 1121, 30 L. R. A. (N. S.) 602, Ann. Cas. 1912B, 674, affords an able and exhaustive discussion of the question as to when ballots should be received in evidence and when rejected.
For the reasons stated, the case will be reversed and remanded for further proceedings in accordance with this opinion; and it is so ordered.