Boehrs v. Madsen

*553 PER CURIAM. This is an election contest. The trial court held in favor of contestant, and the contestee has appealed. Appellant first questions the right of the contestant under the allegations contained in the notice of contest to have the ¡ballots recounted. We are satisfied that this contention of appellant is ¡without merit under the decisions of this court in Tschetter v. Ray, 28 S. D. 604, 134 N. W. 796; Althen v. Fowler, 35 S. D. 363, 152 N. W. 337. Appellant's principal contention is that the evidence discloses that certain of the ballot boxes and the ¡ballots contained therein had been tampered with, and that the ¡ballots should not therefore be accepted as evidence of the vote cast in the precincts from which these ballots and boxes were returned. We have carefully reviewed the evidence in this regard and are of the opinion that the ruling of the trial court thereon should not be disturbed. The question, whether the ballots had been so preserved that they may be safely -used to defeat the result shown by the returns, is a question of fact, the decision of which is with the trial court. Tschetter v. Ray, supra; Althen v. Fowler, supra. The trial court found that the ballots had not been tampered with, and that the integrity of the ballots had been maintained. The evidence, which it is claimed shows that the boxes and ballots had been molested, consists entirely of the physical appearance of the boxes and their contents at the time the boxes were opened and the recount had. The trial court was in a much 'better position than this court to observe the conditions that then appeared. The trial court had the advantage of seeing and observing the boxes as they were opened, while this court has only a record containing a word description of the condition, of the boxes arid the ballots as they appeared at the time. This word picture given us by the record is not such that we feel justified in holding that the trial court erred in determining that the ballots when offered in evidence were in their original condition. Other alleged error, if error, was without prejudice to the appellant. The judgment appealed from is affirmed. WARREN, P. J., and CAMPBELL, ROBERTS, and RUDOLPH, JJ., concur. POLLEY, J., dissents.