Smith v. Thomas

PER CURIAM. Plaintiff brought this action to contest the right of defendant to exercise the office of supervisor of the county of Tulare, for supervisor district No. 3 therein, for the term commencing January 4, 1897, to which said office defendant had been declared elected by the board of supervisors. The court found that three hundred and forty-six votes were counted by the board of election of the several precincts for defendant, and three hundred and forty-two votes for plaintiff, and that the board of supervisors thereupon canvassed said votes and the returns, and properly certified and declared defendant duly elected, and issued to him a certificate of election. The result of the trial was, and the court found, “that plaintiff and defendant each received and were entitled to have counted for them three hundred and forty-three legal votes cast at said election,” and, as conclusion of law, “that plaintiff take nothing by this action.” The appeal is from the judgment, and is presented by bill of exceptions.

1. Appellant’s first point arises from a certain ballot which it is claimed was erroneously counted for defendant. In the body of the ballot nothing irregular appears. Opposite the name of defendant is a cross stamped in its appropriate place. Above the printed matter on the ticket, in the open space at the right-hand top, and about opposite the words “General Ticket,” are two crosses, apparently stamped with the same ink and stamp as used by the voter, and an ink blotch of same color (red) apparently made with some sort of stamp or the end of some kind of implement round in shape, and about the size of a silver five-cent piece. This impression may have been made with the reverse end of the stamp. The disk is not entirely covered with ink. Appellant objected to the ballot upon general grounds, and specially because it bore upon its face distinguishing marks (above described), which were placed there with the intention of fraudulently designating the choice of the voter casting the ballot. The trial court, after taking the evidence of the election officers as to the condition of the ballot at the time it was taken from the ballot-box, and also after taking the evidence of the custodian of the package of ballots subsequently to that time, held as a fact that said ballot was not marked upon when it came out of the ballot-box, but subsequently thereto, and ordered it counted for defendant. The evidence is not at all clear and convincing in support of this finding of the trial court. At [978]the same time, there is sufficient evidence to support it. Hamrick, an inspector at the election, testified: “I was an inspector of election in the Fourth ward precinct, and I inspected the ballots closely, and strung them after they were counted. I observed all the ballots very closely as I strung them. I saw no marks upon any of the ballots. I did not see any ballot marked as ‘Defendant’s Objection No. 3’ is marked. I wore my glasses and I think I would have seen any ballot marked as this one is.” Douglas, a ballot clerk, also testified: “I was a ballot clerk. I sat behind Mr. William Kettner while he was calling off the ballots. I did not see any such ballot as ‘Defendant’s Objection No. 3.’ If there had been such a ballot, I think I would have seen it. I was representing the Republican party, and observed the ballots closely. I got up from my chair behind Mr. Kettner two or three times, and talked with Mr. Kelsey, but I do not think that I missed any of the tickets.” This evidence is sufficient to support the finding of fact made by the trial court.