156 Ind. 355 | Ind. | 1901
Appellant and appellee'were candidates for the office of trustee of Perry township in Miami county, at the November election, 1894. There were counted to each 185 votes. Appellant commenced proper contest proceedings, which by appeal and change of venue reached the Fulton Circuit Court, where the case was tried, and, upon a general finding supporting the original count, fhe court gave judgment for the appellee. The question in this appeal is narrowed to two ballots, both of which were cast for appellant, but neither of them counted, upon the ground that they bore distinguishing marks. If either one of these
Appellee insists that the disputed ballots are not properly before this court for each of three reasons: (1) Because the original thereof, instead of copies, ’is incorporated in the body of the bill of exceptions containing the evidence. This objection is ruled against appellee by Zeis v. Passwater, 142 Ind. 375, 382; (2) it is contended that the bill of exceptions containing the evidence is not made up and certified by the stenographer in conformity to any statute, and that it is insufficient for failure to show that the stenographer was first sworn to take and make a true and impartial report of all the evidence. It is apparent that an effort' has been made to comply with the act of March 8, 1897^in respect to bringing the evidence into the record on appeal. Section 1 of the act referred to (Acts 1897, p. 244) is as follows: “That to make the evidence, and all rulings of the court in respect to the admission and rejection of evidence and the competency of witnesses and the objections and exceptions thereto in any civil or criminal cause a part of the record upon appeal to the Supreme or Appellate Court, it shall be sufficient if the transcript contain the original bill of exceptions embracing all such evidence; including that which is oral, documentary and by deposition offered and heard in such cause; and all such rulings, objections and exceptions: Provided, however, That it shall appear from the record that such bill was presented to the proper judge of the trial court for settlement and signature within the time permitted by law and that allowed by the court,, and that the same was'signed by the judge and filed with the' clerk of said trial court or in open court. And it is hereby^ made the duty of the clerk of any trial court, when requested to do so by the party appealing, to embrace in the transcript such original bill of exceptions instead of a copy thereof.” It should be noted
We can not admit as valid the further objection on this point, that the clerk had no such request from the appellant as authorized the incorporation of the original bill of exceptions into the transcript, instead of a copy,- under the provisions of the act of 1897 above quoted. The - request upon the clerk here provided for may be either written, or oral, and conceding all that is claimed by appellee, that appellant filed a written precipe with the clerk directing the making up of the transcript, and which included “the bill, of exceptions filed in said eause”, and that this amounts to a written request for a copy of the bill of exceptions, ■ and not the original, it by no means follows that an oral request was not subsequently made to insert the original, and not a copy. We find the original in the transcript; it may lawfully be here if requested by the appealing party, and, in the absence of anything to the contrary, we must presume that the clerk discharged his official duty and incorporated it upon- the subsequent oral request of appellant.
Appellee contends that the authentication' of the bill is inadequate for failure of the judge to certify that it contains'' all the objections, rulings, and exceptions reservéd ‘during the trial. We can not assent to the position assumed^ The' settling of a bill of exceptions is as much a judicial act as ■ the rendition of a judgment. And it is as much the duty of the trial judge in the settlement of a bill to see that it' contains all the law requires, namely, all the evidence givén and offered, and all the objections, rulings, and exceptions reserved, as it is in the rendition of a judgment his duty to consider all the relative rights of the litigants as established hy the evidence. In either case the law does not require him to certify to anything, but in the solemn act of affixing his official signature is implied an affirmation of all the things enjoined hy the law. The recitals at the opening of the bill are a part of the bill. Rejected offers, objections, rulings, and exceptions, are noted throughout the body of the bill. It is expressly stated by the judge that it contains all the evidence, and the affixing of his official signature must
The record shows that the motion for a new trial was overruled and final judgment entered on March 4, 1898, and ninety days were given in which to prepare and file a bill of exceptions. The bill was presented to the judge for settlement April 27, 1898, and upon the- same clay signed by him, and upon May 11, 1898, the same was filed in open court. This discloses a compliance with the act of March 8, .1897, supra, and the bill of exceptions and disputed ballots are, therefore, in the. record.
This election was held under the law of 1891 which required the use of a stamp in indicating the choice of candidates. Ballot designated as G twenty-nine, which was admitted in evidence, had no mark or character upon it, except that in the large square inclosing the party emblem there appears immediately above the emblem a faint impression of the regular stamp, and immediately below the emblem there appears a heavy purple daub, the same in color, as the impression made with the inked stamp in lawful use, irregular in outline,’ and four times as large as the face of the stamp. It is such as will readily and distinctly appear to be violative of the statute, and under the. rule declared in Sego v. Stoddard, 136 Ind. 297, 22 L. R. A. 468, was properly rejected by the court as containing a distinguishing mark.
The identity of ballot thirty-two N and the failure of the board of election to count it are conceded, but appellee earnestly contends that it was rightfully excluded from the evidence because it is not shown that it was protested by a member of the board, and was therefore neither a protested nor a disputed ballot, nor belonged to that class of ballots which it was the duty of the inspector to preserve for submission in evidence in case of a contested election; the argument being that as the ballot was not protested, nor dis
We do not feel warranted in giving the statute the narrow construction contended for. It reads that in the canvass of the votes any ballot which does not contain the initials of the poll-clerks, or which bears a distinguishing mark, or is mutilated, or any part of a ballot that is so uncertain as to. make it impossible to determine therefrom the elector’s choice shall not be counted. Provided that on the protest of any member qf the board, such ballots and all disputed ballots shall be preserved by the inspector. This means that any ballot which has been regularly cast by an elector that exhibits any of these elements of discredit, and objection is made by a member of the board to its being counted, whether it is, or is not counted, it is a protested
It seems clear that the' statute does not authorize the destruction of any uncounted' voted ballot. Section 6247 Burns 1S94 reads as follows: “Immediately on dosing the polls, the board shall count all the ballots remaining unvoted, record the number of the same on the tally sheets, and destroy all of such ballots by totally consuming by fire.” Section 6248,' supra, in directing the' procedure of' the board after the polls have been closed and all unvoted ballots have been destroyed, provides that on completing the count and recording the same on the tally-sheets all remaining ballots-(that is, all voted ballots that have been counted without question) shall be destroyed by fire, “except those marked, mutilated, or otherwise defective”, that is, except those bearing' distinguishing marks or mutilations, 'or are otherwise defective as legal ballots, which necessarily includes within the exception all voted ballots that have not
Should it have been counted for appellant ?■ This ballot has, 'clearly within the body of the large square inclosing the party emblem, a clean and distinct impression of the regular stamp; otherwise the ballot is entirely free from any mark, spot, or character, except that near the bottom between two names standing for the office of constable are three small, faint, smears, of the same color as the impression of the stamp, each separated from the other by one-eighth of an inch, and indicating a straight, horizontal line — the. first about one-sixteenth of an inch wide and one-eighth of an inch long, the second not wider ■ than a pin scratch and one-eighth of an inch long, and the third one-thirty-second of an inch wide and one-eighth of an inch long; the three shadowy stains, indicating the merest touching and movement of the inked stamp from left to right, the stains becoming fainter as the movement progressed, so that the last stain is hardly discernible to the naked eye. As a whole the mark is such as to be unnoticed in a casual observation, and of a character to forbid the belief that it was made by design. It is quite supposable that the voter in handling the ballot with the inked stamp in hand accidentally and unwittingly suffered the stamp and ballot to come in slight contact, and the stain being so indistinct as to be. imperceptible in the dim light usual to the booth the ballot was executed and cast without the knowledge of the voter' that such stain was upon it. In such case the mark, was not a distinguishing mark within the meaning of the law. A distinguishing mark that will invalidate a ballot is such a one as fairly imputes upon its face design and a dishonest purpose. The slight soiling of a ballot, which reasonably appears to have been the result of accident) or want of due care, is not sufficient to condemn it, if otherwise fair. As was
Judgment reversed, with instructions to sustain appellant’s motion for a new trial. ':