Haun v. Claire

MARKS, J.

At a municipal election held in the city of Newport Beach, in Orange County, on the ninth day of April, 1934, Lloyd Claire was elected a councilman of that city. William M. Haun received the next highest number of votes. Mr. Haun brought this proceeding under the provisions of section 1111 of the Code of Civil Procedure to contest the election of Mr. Claire for alleged violation of provisions of subdivision three of section 54 of the Penal Code.

Section 54 of the Penal Code contains the following:

“Every person who, with intent to promote the election of himself or any other person, either— ... 3. Furnishes or engages to pay or deliver any money or property for the purpose of procuring the attendance of voters at the polls, or for the purpose of compensating any person for procuring attendance of voters at the polls, except for the conveyance of voters who are sick or infirm; . . . —is guilty of a misdemeanor.”

The particular violation alleged in the complaint is that Claire hired " automobiles and the drivers thereof to take voters to the polls at said election who were neither sick nor infirm” for the purpose of promoting his election to the office for which he was a candidate. It is particularly alleged that he paid Malcom D. Robertson $3.50, Charles W. Fowler $5, and John D. Willey $4.

At the close of contestant’s ease a motion for nonsuit was made and granted. A judgment of dismissal was entered which carried costs in the sum of $44.30.

[751]

Contestant presents the following grounds for a reversal of the judgment: (1) that under the provisions of section 1122 of the Code of Civil Procedure a judgment of nonsuit is improper in the contest of an election; (2) that the evidence produced made out a

prima facie

case against Claire and that it was error to grant the motion for nonsuit; (3) errors of the trial court in ruling on objections to questions propounded to witnesses.

Section 1122 of the Code of Civil Procedure provides as follows: “The court must be governed, in the trial and determination of such contested election, by the rules of law and evidence governing the determination of questions of law and fact, so far as the same may be applicable; and may dismiss the proceedings if the statement of the cause or causes of the contest is insufficient, or for want of prosecution. After hearing the proofs and allegations of parties, the court must pronounce judgment in the premises, either confirming or annulling and setting aside such election.”