Srum v. Slankard

HART, J., (after stating the facts). It appears that the returns made by the election judges in the various precincts of Hartford township show that Srum was elected. Slankard gave notice to Srum that he would ask for a recount of the ballots by the county election commissioners under the provisions of section 2837 of Kirby’s Digest. Srum made no objection to the recount and it was made by the election ••commissioners. The recount showed that Slankard received the highest number of votes for constable and he was given a certificate of election. Srum then instituted a contest. It is conceded that the ballots were preserved in accordance with the statute from the time a recount was had until they were produced at the trial in the circuit court. The record, also, shows that no changes were made in the ballots after they came into the hands of the election commissioners. The evidence, also, shows that the ballots were not changed or in any wise tampered with while Goolsby was carrying them from Hartford to Huntington to deliver them to one of the election commissioners. The evidence shows that the ballots from the West Hartford precinct were placed by the election judges in an envelope and that it was sealed. They were then deposited in the vault of a bank in Hartford and'remained there throughout the day Wednesday and were carried to Huntington' on Thursday morning. It was shown that the customers of the bank had access to the vault where the ballots were deposited throughout the day on Wednesday. It is not shown, however, that the ballots were tampered with. On the other hand from its appearance the envelope showed that it had not been opened. The original returns from this precinct showed that 36 persons voted for Srum and 19 for Slankard. The recount showed 17 votes for Slankard and 27 for Srum. Only three witnesses testified that they voted for Srum in this precinct. The other witnesses testified in regard to the other precincts. The court in its finding took the original count as to West Hartford. It is apparent that the action of the court as to this precinct resulted in no prejudice to the rights of Srum. Indeed the right of Srum to reverse the judgment is predicated upon errors alleged to have been made by the trial court with regard to the other precincts in the township. The recount by the county election commissioners shows that Slankard received the highest number of votes for constable. It is not contended that an error was made in the recount.. The contest is based upon the contention that the ballots were changed by the judges while counting the votes or that they were changed while in the hands of one of the judges after the votes were counted. Persons who voted at the election were introduced as witnesses to establish this fact. (1-2) It is insisted by counsel for the contestant that the effect of the court’s finding was to hold that this testimony was not admissible to contradict the ballots. We do not agree with this construction of the findings of the court. The record shows that objection was made to the testimony on the ground that the ballots could not be contradicted by oral testimony. The court permitted the testimony to be given, and we think the record shows that it considered it in arriving at its conclusion. It is true a ballot is a writing or a quaéi-record, but like any other instrument of the same character, when imbued with fraud, it gives way to oral testimony which is credible. We think the finding of the court shows that the oral testimony was received and considered by the court for the purpose of showing whether or not the ballots had been changed or tampered with since they had been cast by the voters. The court made an express finding from the proof that the ballots in all the other precincts and wards except West Hartford had maintained their purity and integrity. In making its finding in this respect the court had before it the ballots themselves whose appearance indicated that they had not been tampered with. It is well known that when ballots are made out by different persons that some of the marks on the ballots will be marked with a heavier pencil line than others and that if the ballots were changed and the marking had been done by a single person, the lines would be more uniform unless the work was done by an expert forger. This was a proper matter for the court to consider in making its findings in the premises. Some of the judges and clerks from each precinct were introduced as witnesses. They testified that no changes were made in the ballots while they were being counted. Witnesses were also introduced who testified that the ballots were carefully preserved by one of the judges after they were placed in sealed envelopes. It is true that witnesses were introduced who testified that they had voted for Srum when the ballots themselves indicated that they had scratched out the names for .all three of the candidates for constable. The court had these witnesses before him and doubtless thought their testimony was not of that unequivocal character which carried conviction with it. Some of the witnesses were foreigners and could scarcely read English. Others were voting for the first time. Others did not testify in a positive manner. The ticket was a very long one, containing all the State, county .and township officers as well as the amendments, to the Constitution. It may be that the witnesses intended to vote for Srum and became confused at the length of the ticket, and did not remember correctly what they had done. In any event there was evidence of a substantive character to support the findings of the court and we can not disturb it on appeal. Webb v. Bowden, 124 Ark. 244. (3) The court, having found from the evidence that the ballots had not been changed or tampered with, properly held them to be the best evidence of the true result. Condren v. Gibbs, 94 Ark. 478. The judgment will, therefore, be affirmed. SMITH dissents.