130 Mo. 530 | Mo. | 1895
This is an appeal from the judgment of the circuit court of Cole county in a contested election for the office of sheriff of said county.
At the general election held on November 6, 1894, Charles F. Williams and Samuel H. Sone were candidates for the office of sheriff. On the face of the returns as cast up and certified by the judges of election in the several precincts Charles F. Williams, the contestee, received a majority of thirteen votes.
On November 14, 1894, contestant Samuel Sone served the contestee with a notice of contest setting forth in substance that the election judges in the various precincts refused to count ballots on which Sone was voted for for the alleged reason that said ballots were not properly prepared and marked according to the laws of this state when in truth and fact said ballots were valid and legal ballots; second, that said
Thereupon contestee Williams served contestant with a counter notice of contest making charges of errors and mistakes similar to those made by contestant and in addition charged that contestant had received the ballots of a number of illegal voters whose names were set out in the notice. No effort was made to sustain this last charge and it is not before us for review.
Within twenty days after the election, contestant filed a supplemental notice, which was quashed on motion of contestee. A motion was also lodged against the original notice of contest which was overruled.
At the December term, on the sixth day of December, 1894, the court made an order directing the county clerk to open, count, and compare the ballots in the presence of the parties and their attorneys. The contestant was' represented by F. M. Brown and Dante Barton, members of the Cole county bar, and the contestee by Messrs. Waldecker and Chamberlin, of the Cole county bar, and Major Moore, of the Moniteau county bar. After due notice to all parties the clerk, in the presence of both parties and the above mentioned attorneys, made the recount and subsequently filed the same in court as directed.
A correct tabulated statement of the official count and recount as contained in the clerk’s return, is as follows:
*538 
After the return of the clerk had been filed and before the trial, on January 9, the contestee filed the following motion for another recount:
“And now comes Charles F. Williams, the above named contestee by his attorneys, and moves the court to order that a writ issue to the clerk of the county court of Cole county, Missouri, commanding him, the said clerk, to open, count, compare with the list of voters, and examine the ballots in his office which were cast for the office of sheriff of said county, at the general election held on the sixth of November, 1894, and to take down and preserve all facts which the contestee herein requires which may appear from the ballots affecting or relating to the office of sheriff of said county, and that he certify the result thereof to this court.
*539 “Contestee makes this application and motion upon the following grounds and facts:
“Because the result of the recount of said ballots made by the clerk of the county court of Cole county, as shown by his report, is not a correct and true statement of the ballots as cast by the electors of said county, and as counted and returned by the officers of election in the various precincts of said county for the respective parties herein, for said office.
“And contestee avers that he has good reasons, to believe and does believe, and so charges the facts to be, that since the ballots were cast by the electors of Cole county on said sixth day of November, 1894, and after said ballots had been counted by the judges and clerks of election and the poll books made out and signed, and after the returns were made by the election officers in the several precincts of said county, and prior to the recount of the ballots by the county clerk on the application of contestant, a large number of such ballots have been changed and altered by some party or parties to this contestee at present unknown, so that the result of the vote for the office of sheriff of said county has apparently been changed; and contestee avers that his name has been, since said election, erased on some of the ballots, and that the name of the contestor has been written in and substituted on some of said ballots in the place of contestee’s name which has been erased thereon.
“Contestee avers that if a re-examination be had on his motion, he will be able to establish these allegations by competent evidence, and that he was duly elected sheriff of said county at said election by a larger majority than that shown by the official count.
“And contestee avers that in at least ten precincts of said county the contestee’s name has been erased on a number of ballots, and that the- contestant’s name*540 has been written in and substituted for the office of sheriff; in place of this contestee, and the candidate of the people’s party for said office, which have been erased on a number of ballots in such precints where the ballots have been tampered with since the returns were made by the officers, to wit, the judges and clerks of election; that by reason of such erasures and changes made upon the ballots as cast and counted, the contestor has made an apparent gain of at least sixty-five votes in the county, and contestee avers that in no other way than by a re-examination of the ballots for sheriff is he able to prove and establish his allegations, as herein made, that he could not contemplate the state of facts as to the changes in the ballots prior to the recount on the application of contestant.
“That if a re-examination be had on contestee’s motion he believes from facts and evidence that have come to his knowledge that he can show to the satisfaction of the court that on the face of the ballots as counted by the judges and clerks of election in the various voting precincts of Cole county he was, on the sixth day of November, 1894, chosen sheriff of Cole county, Missouri, by a majority of the legal ballots cast by the electors of Cole county.
“Wherefore contestee prays for an order that a writ issue for a recount and re-examination as heretofore prayed.”
This motion was overruled by Judge Shackleford, and thereupon contestee filed his application for a change of venue because of the alleged prejudice of Judge Shackleford, and thereupon by consent of the parties,-Arthur M. Hough, Esq., a member of the Cole county bar was elected special judge to try the cause.
On January 10, contestee renewed his motion fora recount for the following reasons: .
*541 “Because, the recount as made by said clerk on the application of contestant is not a correct and true statement of the ballots as cast, and said report is incorrect, and said contestee specifically charges that since the ballots were cast and counted and the returns made by the election officers, in the various voting precincts of Cole county, a large number of the ballots have been altered and changed, by parties unknown, prior to the recount by the county clerk, so that the result of the election for said office has apparently been changed. That on some of' said ballots the name of contestee has been erased and the name of the contest-, ant written in and substituted therefor, subsequent to the return of the poll books,- and prior to the recount aforesaid.”
(Eight precincts are enumerated where such changes were made, a specific number being given in each, the aggregate amounting to thirty-eight erasures of contestee’s name and the substitution of contestant’s on thirty-six of such ballots, which alone would give contestee a larger majority than the official count shows.)
“Contestee alleges that he had no reason.to anticipate these- alleged forgeries before the recount, and was not fully satisfied thereof until near the time of the completion of the recount, and too late (as ruled by the clerk) to keep a full and complete memoranda of such fraudulently changed votes; that by a re-examination of the ballots the contestee will be able to fully substantiate these charges by the election judges and clerks, and by the testimony of the voters themselves who cast the ballots so fraudulently changed.
“The facts are now known to contestee which were not known at the time of the recount and which 'it would be improper for him to state, until the ballots are re-examined, by which he will show that these allegations are true; that the purpose of the motion is*542 not for vexation or delay and he is willing to proceed at once with such an examination of the ballots.”
This motion was supported by the affidavits of contestee; also by a judge and clerk of election of Taos precinct, that the pouch containing the ballots of that precinct was opened by the county clerk and the poll books taken therefrom before the recount; also by Conrad Waldecker, Esq., one of contestee’s attorneys, as to his belief and as to the mutilated condition of the envelopes containing the ballots. Also of S. D. Chamberlin, Esq., also an attorney of contestee, who states he believes he saw evidence at the time of the recount that the ballots had been tampered with, and that he demanded of the clerk a. review and recount before the work of recounting was fully completed and that the ballots were in some cases not strung or sealed as required by law; also by several judges and clerks that in their precincts the name of contestee was not scratched on the republican column, though he loses and contestant gains votes therein. Then follows the affidavit of F. W. Roer, county clerk. He states that after the return of the ballots by the election officers to his office, such ballots remained in his office more than two days in such condition and places that they might have been changed and tampered with; that persons might have entered his office at night during such time and tampered with them, but so far as his knowledge goes, such has not been done.
Resisting this motion contestant filed the following affidavits of himself and his counsel:
“State of Missouei, j “County of Cole. Jss-
“Samuel H. Sone, of lawful age, being duly sworn, on his oath states that he was present, as contestant, during the examination, comparison, and recount of the ballots before the county clerk in the eon-*543 tested ease of S. H. Sone vs. C. E. Williams for the office of sheriff of Cole county, Missouri; that while so present said contestee, by his attorneys, after the recount had been make and footed up and the result announced, requested the clerk to reopen the boxes containing the ballots of Elston precinct, Eussellville precinct, and Union Store precinct, in order that he, said contestee, might have the opportunity of examining the handwriting of such ballots as had the name of Williams erased and Sone written in — said contestee, by his attorney, stating that he wanted said opportunity of examination for the same purpose that he had made similar memorandum from the ballots in Taos and Osage City precincts; which request the clerk refused, at the time stating that he did not believe he had the. legal right to grant said request, and because contestee and his attorneys had already fully examined all of said ballots, and because contestee’s attorney stated that he wanted such information for his own private use, and because he had expressly stated to said county clerk that he did not wish to embody in this return the result of like examinations made by him of the ballots of Taos and Osage City precincts, in Liberty township,
“And affiant further states that during the recount of the ballots of said Taos and Osage City precincts, said contestee, by his attorney, Maj. John W. Moore, made memoranda of all ballots where the name of Williams was erased- and the name of Sone written in, and in answer to questions expressly asked him by the county clerk E. W. Eoer, and Dante Barton, one of the attorneys for contestant, expressly stated that he did not want said memoranda embodied in the return, but was making it for his own private use, and that said county clerk and said attorney need not make any memoranda of the same, as they had nothing to do with the return.
*544 “And affiant further states that said eontestee and his attorneys had ample opportunity to examine all of said ballots, and, in fact, did fully examine the same at the time they were open and out of the boxes for inspection, and that they were not returned to their boxes until both the cóntestor and eontestee and their respective attorneys had expressed themselves as satisfied with the examination they had given them.
“And affiant further states that he examined all of said ballots of every precinct in the said Cole county at said recount, and particularly the ballots at Taos and Osage precincts in Liberty township, and all of said ballots were in proper condition and bore no evidence whatever of fraud or of having been tampered with, and that no question or suspicion of fraud was at any time during said recount raised by said eontestee or his attorneys until after the footing up of the total-vote and the result announced, giving Sone a majority of thirty-five over said eontestee, except that contestee’s attorneys, during the count of Osage City precinct (the last one recounted), suggested that the handwriting in the name of Sone written in said ballot was unlike the other manuscript writing as to other names of the said two ballots. S. H. Sone.
“Subscribed and sworn'to before me this tenth day of January, 1895. W. H. Lusk, Clerk.
“By J. A. Droste, D. C.”
“State of Missouri, 1 “County of Cole. J '
“E. M. Brown and Dante Barton, of lawful age, being duly sworn, on their oaths state that they were present as the attorneys for the contestor, S. H. Sone,. during the examination, comparison, and recount of the ballots before the county clerk in the contested election case of S. H. Sone vs. C. E. Williams for the office of sheriff of Cole county, Missouri; that while so*545 present said contestee, by his attorneys, after the recount had been made and footed up and the result announced, requested the clerk to open the boxes containing the ballots of Elston precinct, Russellville precinct and Union Store precinct, in order that he, said contestee, might have the opportunity of examining the handwriting of such ballots as had the name of Williams erased and Sone written in, said contestee, by his attorneys, stating that he wanted said opportunity of examination for the same purpose that he had made similar memoranda from the ballots in Taos and Osage City precincts; which request the clerk refused, at the time stating that he did not believe he had the legal right to grant said request, and because contestee and his attorneys had already fully examined all of said ballots, and because contestee’s attorney stated that he wanted such information for his own private use, and because he had expressly stated to him that he did not wish him to embody in this return the result of like examinations made by him of the ballots of Taos and Osage City precincts in Liberty township.
“And affiants further state that during the recount of the ballots of said Osage City precinct said contestee, by his attorney, Maj. John W. Moore, made memoranda of all ballots where the name of Williams was erased and the name of Sone written in, and in answer to questions expressly asked him by the county clerk, E. W. Roer, and Dante Barton, one of the attorneys for contestant, expressly stated that he did not want said memoranda embodied in the return, but was making them for his own private use, and that said county clerk and said attorney need not make any memoranda of the same, as they had nothing to do with the return.
“And affiants further state that said contestee and his attorneys had ample opportunity to examine all of*546 said ballots, and, in fact, did fully examine the same at the time they were opened and out of the boxes for inspection, and that they were not returned to their boxes until both the contestor and contestee and their respective attorneys had expressed themselves as satisfied with the examination they had given them.
“And affiant Brown further states that he examined all of said ballots of every precinct in the said Cole county at said recount, and particularly the ballots at Taos and Osage City precincts in Liberty township, and all of said ballots were in proper condition and bore no evidence whatever of fraud or of having been tampered with; and both affiants further state that no question or suspicion of fraud was raised at the time during said recount, by said contestee or his attorneys, until after the footing up of the total vote and the result- announced giving Sone a majority of thirty-five over said contestee, except as to the first and second ballots counted at Osage City precinct in Liberty township, in which contestee contended that the handwriting in the name of Sone written in said ballots was unlike the other manuscript writing in the ballots.
“E. M. Beown,
“Dante Baeton.
“ Subscribed and sworn to before me this tenth day of January, 1895. W. H. Ltjsk, Clerk.
“By J. A. Deoste, D. C.”
A part of the return of the clerk was also read in evidence, as follows:
“The contestor and his attorneys, and the contestee and his attorneys, were permitted to fully examine the ballots, and all the facts either party desired are hereinafter stated. The poll books and ballots of each voting precinct in said county were opened, counted, compared with the list of voters and*547 examined separately, and facts in regard thereto noted as follows, to wit: * * *
“After the recount was made and footed up and compared with the official count, and- the majority ascertained and declared to be thirty-five for contestor S. H. Soné, and the ballots of each precinct, except Osage City precinct, had been re-strung and returned to their boxes or envelopes, contestee, by his attorneys, requested and demanded of me that I reopen the boxes containing the ballots of Elston precinct, Russellville precinct, and Union Store precinct, in order that he, contestee, might have the opportunity of examining the handwriting of such ballots as had the name of Williams erased and Sone written in, which request I declined to grant, because I had no legal right to do so, and because contestee and his attorneys had already fully examined all of said ballots, and because contestee’s attorney stated that he wanted such information for. his own private use, and because he had expressly stated to me that he did not wish me to embody in this return the result of like examinations made by him of the ballots of Taos and Osage City precints in Liberty township.”
No -exceptions were saved by contestee to reading in evidence by contestant of foregoing affidavits and part of the clerk’s return.
Contestant also offered the following testimony in explanation of the affidavit of E. W. Roer, filed by contestee:
E. W. Roer, being duly sworn, testified as follows (against contestee’s exceptions to oral evidence on said motion):
“My name is E. W. .Roer; I am county clerk of this county; I had in my care and keeping the ballots returned to the county clerk’s office east at the general election held November 6, 1894; they are now in the*548 vault in my office; I received them from the messengers that returned the ballots — some judges and some clerks; some of the ballots were in good condition, others were in a dilapidated condition, caused by long horseback rides; they were in paper boxes, heavy pasteboard. (One of the boxes containing the ballots was brought in and shown to the court by the witness).
UQ. They were in that shape, were they? A. Yes, sir.
“Q. Those were tied and sealed up? A. After the recount, we resealed them. * * * About a dozen were in a dilapidated condition. By dilapidated, I mean the sacks were torn. They were broken where the strong cases were. Some of them were sealed: That is, mucilage pasted there (illustrating). They (the ballots) 'did not bear any evidence of ever having been out of the envelopes; only the envelopes ivere torn.
“Q. You mean by being torn, where the string goes around them, they were broken? A. There was no string around them when I got them.
“Q. Well, Imean abouthere (illustrating), where that string is? A. Yes, sir; that is one that was torn, and there are others a heap more than that. I remember one precinct torn on the side and pinned together. * * * I kept them in my office; I am now keeping them in the vault in my office. I opened one of those ballots — the Hickory Hill precinct. That was when the ballots were brought in; on the evening of the election I think it was. There was one precinct 'returned by the messenger or one of the judges, and I asked for the poll books and talley sheets, and he said it was inside with the ballots, and I said, that is not the proper way to have them. I wanted them to cast up the official count. Then I called the attention of all the people in the office to the fact that I had open it in order to get the poll books out, and the judge of*549 the election said, ‘there is nothing wrong in that,’ and I sad, ‘No, I guess not.’ There was at least thirty or forty people in the office, and I resealed it in the presence of all the people. These envelopes are in the same condition, so far as I observed, as when I received, them. Most of them were brought in on horseback— carried from eight to thirty miles. I have handled documents and papers a good deal. The ballots in the envelopes were brought in in sacks that lay across the horse. My idea is that, in carrying them that distance-in sacks, they were cracked. * * * I opened those ballots and counted them .after I had an order from the circuit court, at the recount. * * * The ballots were not changed or tampered with in my office to my knowledge. My deputy is Mr. Horace Church. I did not open the poll book from Taos precinct;. I think it, was Hickory Hill; I know it was only one, and that it was Hickory Hill.”
Horace Church’s evidence .is to the same effect.
The circuit court upon this showing overruled the motion, and the cause came on for trial, and contestee demanded a jury which the court denied and the cause was tried by the court.
The contestant offered evidence tending to prove his eligibility to the office; that the contestee held the certificate of election; that the ballots had not been changed or tampered with after reaching the county clerk; that the county clerk had called to his assistance two judges of the county court and canvassed the votes at the general election in 1894, and that upon the face of the returns contestee was elected, and then read in evidence the return of the county clerk on the recount, showing a majority of thirty-five for contestant. This result showed the votes counted and returned by the clerk to which no objections whatever were made by
There were, however, sixteen ballots to which objections were made and In all of these cases a facsimile of the ballot thus challenged was made by the clerk and returned with his report to the court. Of these the court counted nine for contestant and four for the contestee, changing the totals to one thousand, eight hundred and ninety-seven for contestant and one thousand, eight hundred and fifty-seven for contestee, and changing contestant’s majority to forty instead of thirty-five.
At the close of the contestant’s case, contestee offered evidence of what transpired during the count, which does not materially differ from that of contestant’s witnesses, the witnesses differing upon some minor points which could not affect the result either way, the principal evidence being, the ballots were kept in the clerk’s office for three or four days, but not in the vault; that during the daytime the clerk or his deputy was always in the room, and at night the janitor went in and cleaned up the office. These officers all testify the ballots were not molested by themselves or any other person to their knowledge, and that the pouches were in the same condition when the ballots were recounted that they were when received by the clerk.
The circuit court made a special finding that the county clerk had made return in his report of the recount.of every fact that either party required pending the count, and that the ballots had not been changed or tampered with after they were filed with the clerk.
I. It is now the uniform practice in this court to disregard assignments of error of which no. complaint is made in the motions for new trial, and in arrest. It therefore becomes unnecessary to decide whether either party to a contested election can demand a jury.
III. The learned counsel for contestee bases his argument for a reversal of the judgment principally upon what he contended was an abuse of discretion in the trial court in refusing to order a second recount of the ballots, and as the solution of this point is decisive of the case we have given it our most careful consideration.
We do not agree with counsel for contestant that the court had exhausted its power when it made one order for the examination of the ballots. We can conceive of' cases in which county clerks might arbitrarily refuse to make return of facts which a party might deem important to his case, and of cases when, through ignorance or inadvertence, he might err as to what ballots should be counted or rejected, and, upon a satisfactory showing, the court should require the recount made over, under proper directions.
But, granting that the court is authorized, upon a proper showing, to order more than one recount, it does not follow that it is a matter of right. A court, having once afforded both parties an opportunity for a full examination and comparison of the ballots with the list
The motion of contestee for the second recount charges no specific fact, but consists of a vague, general allegation “that he has good reason to believe, and does believe, and so charges the fact to be” (that is to say, solely upon his belief) “that after the ballots had been counted and the returns made, a large number of the ballots had been changed by some party or parties,, to contestee unknown, and thereby the result had been changed; that upon the prior recount of the ballots he had no knowledge of any such alteration and did not suspect it until too late to investigate the ballots.” And in support of this application he filed affidavits as follows:
Schneiders and Weckemberg, who testify they saw the county clerk open the envelope of Taos precinct, and that he gave to the affiants, who were respectively a judge and clerk of the election at said precinct, one of the poll books and one tally sheet of that precinct upon their asking the clerk if they should not have one, and he answering, yes. The county clerk in his affidavit explains that when this precinct came in he asked the judge who brought the returns for the poll books and tally sheet and he said they were inside with the ballots. He wanted them to cast up the ballots, and he called the attention of everybody, some forty persons, in his office, that he was going to open the package for that purpose, and in their presence he opened the package, took out the poll books and tally sheet and at once resealed them in the same presence.
C. Waldecker makes affidavit that he is informed and believes the ballots have been tampered with, but does not inform the court of the source of his information.
• The affidavit of Martin Weith says he was one of the counting judges at Taos precinct, and that the ballots were counted over three times and verified; This witness testified on the trial and explained that he did not mean they counted .the ballots over three times, but simply verified the'footings on the tally sheets three times.
Herman Sommer and Anton Pringer made affidavit that they were judges of election at Osage Bluff and, Taos precincts respectively, and, to the best of their recollection, the name of contestee was not scratched on any ballots at said precincts and contestant’s name inserted in lieu thereof.
E. W. Roer, the clerk, that the ballots were in his office for two days and they might have been tampered with by persons entering said office at night, but to' his knowledge said ballots were not changed in their-substance or form. Mr. Roer afterward explained that he meant simply his office was not burglar proof, and. that he told Mr. Chamberlin to so prepare his affidavit, and this Mr. Chamberlin admits. ■
The allegations in the motion amount to nothing ^upon which a traverse could be framed. They simply state the belief of the contestee, and are supported by affidavits' as vague and unsatisfactory as the averments they were made to support. When it is considered, ■ that these statements and affidavits are made by gentlemen who had an opportunity to scan and examine' every ballot cast at that election, it is remarkable that
So far, we have considered the case upon contestee’s averments and affidavits, regardless1 of the counter showing of contestant, but when we consider the affidavits and evidence offered by contestant it completely refutes every inference of any unfairness or injustice in the count, and rebuts every presumption that anyone had tampered with the ballots. Upon such an issue and evidence we think much must be left to the discretion of the trial court, and we are justified upon the facts in saying he has not abused his discretion.
IY. Counsel also complains that the circuit court refused an instruction asked by contestee to the effect that if the ballots were not placed in the vault in the county clerk’s office and that there was a possible opportimity to tamper with said ballots by outside parties, and there was reasonable suspicion the ballots might have been tampered with, then the court would reject the recount. Counsel insists it was error to refuse this instruction upon the authority of Ex parte Arnold, 128 Mo. 256.
That the burden is upon the party relying upon the ballots to overturn the canvass by the election officers to show that they have been preserved in the manner prescribed by law, and by the officers charged by law with their keeping, is supported by the great weight of authority. But the expression that it must also appear “that no opportunity has been afforded whereby they might have been changed or tampered with’ ’ is too strong, and it will be misleading. The writer wrote the opinion in PJx Parte Arnold and adopted the rule as formulated by Judge McCrary in MS’ book on Elections (sec. 440, loe. cit. p. 293), and quoted with approval in People ex rel. v. Livingston, 79 N. Y. 279; but, upon a more careful consideration and review of the decisions upon this point the better rule appears to be that, as between the canvass of the votes by the election officers and the ballots themselves, the ballots are the best and primary evidence, provided they have been kept by the proper custodian and in the manner required by law, and have not been tampered with. Coglan v.
The supreme court of Kansas in Hudson v. Solomon, 19 Kan. 177, in an opinion by Judge Brewer discusses the identical proposition involved in contestes’s instruction and condemns the instruction as too extreme. In that case, as in this, it was argued that it was^ possible that someone might have reached and opened the ballot box, and the learned judge answered the suggestion by saying, “it is true there is a possibility of such a thing, but is there any probability of itV And he concludes his opinion with two cardinal rules: “First. As between the ballots cast at an election, and a canvass of these ballots by the election officers, the former are the primary, the controlling evidence. Second. In order to continue the ballots controlling as evidence, it must appear that they have been preserved in the manner and by the officers prescribed in the statute, and that while in such custody they have not been so exposed to the reach of unauthorized persons as to afford a reasonable probability of their haviug been changed or tampered with.”
A close reading of People ex rel. v. Livingston, 79 N. Y. 279, and Hudson v. Solomon, supra, will, we now think, demonstrate that in both of those cases those courts admitted the ballots in evidence, though in each case there were- circumstances far more suspicious and suggestive of opportunities for tampering with the ballots than in this case.
While it is true that the result of the official count made immediately after the ballots were cast and while they were yet in the hands of those who received them from the voters may be overturned by a subsequent count, in every such investigation it should appear to-the trier of the fact that the recount is of the identical
It becomes, then, primarily a question as to the burden of the proof, and, following the analogies of the law, we consider that when the contestant calls for the ballots in a contested election and they are .produced by the lawful custodian, and it appears that he has kept them in the manner required by law, a prima facie case is made, unless upon their face and the condition of the boxes or pouches they appear so mutilated, or are in such a condition, as of themselves to rebut the prima facie case of correctness, or raise a fair presumption of having been tampered with. The condition of the ballots and the circumstances of their custody present in each case a question of law on the admissibility of the evidence, to be determined by the analogies of the law governing the admission of documentary evidence. The ultimate fact must be found by the trier of the fact by the weight of the evidence. If the court finds the ballots have been tampered with and is not satisfied they are the same ballots cast at the election, or are not for the same candidates, it is its duty to reject them. If it finds that, notwithstanding some irregularities, they are the identical ballots cast at the election and have not been changed so as to alter the result then they are the controlling primary evidence.
In this case the contestant assumed the burden of showing the ballots had been constantly in the custody of the county clerk and had not been touched or handled by unauthorized persons, and the court found as a fact they were not changed or tampered with, and against this proof and this finding the contestee relies upon the naked presumption that they had been tampered with because they were not in the vault, and it was barely possible someone ■ could have entered the courthouse at night and changed the ballots, though
