Dennis v. Caughlin

By the Court, Belknap, J.: This is the second appeal in this case (Dennis v. Caughlin, 22 Nev. 447). As stated in the'former opinion, the question is whether John Hayes or William H. Caughlin was elected sheriff of Washoe county. Ths district court rendered judgment in favor of Caughlin. It was admitted at the trial that Hayes had received 538 votes and Caughlin 527, exclusive of the Glendale and Salt Marsh precinct returns, and 2 other ballots counted for defendant. The errors assigned consist in these returns and the 2 ballots. In our view it will be unnecessary to consider the rulings of the district court further than the Glendale returns. The count of the ballots of this precinct showed that Hayes received 35 votes, and Caughlin 33. If these ballots be counted irrespective of other matters in the record Hayes *192 would be elected by 13 votes. On the other hand, the canvass by the election precinct officers shows that Hayes received 24 votes and Caughlin 37 votes. This would elect Caughlin by 2 votes. The question then to be determined is whether the canvass by the election officers upon the night of the election or the ballots themselves should have controlled the district court in its decision. It was shown at the trial that after the official canvass by the board of county commissioners, and until the first trial, the ballots have been kept in a cupboard in the county clerk’s office. The cupboard had been selected by the clerk and his deputy as the most secluded place for their keeping. They were enclosed in the envelope or package in which they were originally received, and over this was sealed a slip or hand of paper upon which the name of the clerk was written. Old books and papers were placed over them for the purpose of concealment. No one was supposed to have known where they were except the persons mentioned, and apparently the package had not been disturbed when it-was introduced in evidence. The cupboard was unlocked, and persons connected with the office had keys to the office door. On the other hand, evidence was adduced tending to show that there was some feeling existing against the defendant at Glendale caused by his having been instrumental in enforcing the law against fishing in that locality and arresting offenders against it. In counting the votes by the board an unusual number of blank votes for the .office of sheriff were noticed, some witnesses placing the number from 10 to 12 and others at a less figure. During the canvass, and when only a few ballots remained to be counted, a discrepancy of one vote was noticed between the clerks in tallying the vote for sheriff. Thereupon the count for sheriff was checked off from the commencement, and the mistake corrected. Upon this evidence the court decided to accept the returns to the exclusion of the ballots. The evidence being conflicting, we cannot disturb the ruling of the district court. In support of the conclusion reached, it may be said that the cheeking off of the tally tended to prove the correctness of the canvass and emphasized the fact of the large number of blank votes for the office. It is sig *193 nificant that the ballots show but 3 blanks instead of the 10 or 12 to which witnesses had testified. If this evidence was true, the inference is irresistible that the ballots had been tampered with. In order to further satisfy ourselves in this court, we have compared the ballots and the canvass upon nine other candidates, and our count substantially agrees with the canvass. This fact lends additional support to the ruling of the district court. In People v. Holden, 28 Cal. 123, the court said: “ Intrinsically considered, it must be conceded by all that the ballots themselves are more reliable and therefore better evidence than a mere ■ summary made from them. Into the latter errors may find their way, but with the former this cannot happen. The relation between the two is at least analogous to that of primary and secondary evidence.” In Hudson v. Solomon, 19 Kan. 180, following the above case, the court said: “As between the ballots themselves, and a canvass of the ballots, the ballots are controlling. This, of course, upon, the supposition that'we have before us the very ballots that were cast by the voters.” Referring to this rule, .Judge McCrary, in his treatise on Elections, says that it can have no application to a case where the ballots have been tampered with after they were deposited in the box. “ In such a case,” the learned author says, “ the value of the ballots as evidence is almost totally destroyed and the returns made by the officers of election presiding at the polls may become better evidence than the ballots.” (McCrary on Elections, sec. 439.) It is unnecessary to consider the remaining errors assigned by appellant. Conceding they should be decided in his favor, the result would not be changed. Judgment affirmed.