58 Cal. 521, 7,800, Coffey v. Edmonds

Docket Nº:7,800
Citation:58 Cal. 521
Attorney:John C. Burch, Thomas F. Barry, George Flournoy, and Crittenden Thornton, for Appellant. W. H. L. Barnes, W. W. Cope, Warren Olney, D. McClure, and W. W. Morrow, for Respondent.
Case Date:July 01, 1881
Court:Supreme Court of California

Page 521

58 Cal. 521




No. 7,800

Supreme Court of California

July, 1881

Page 522

[Syllabus Material]

Page 523

Appeal from a judgment against the contestant, and from an order denying a motion for a new trial in the Superior Court of the City and County of San Francisco. Evans, J.


John C. Burch, Thomas F. Barry, George Flournoy, and Crittenden Thornton, for Appellant.

The Court erred in counting for " Edmonds" the ballots for " Edwards," and the ballot for " Edmundson." It is not pretended that the ballot contained the name of " Edmonds," and the code prohibits any extrinsic evidence or testimony to indicate the intention of the voter. (Pol. Code, § 1201.) It is not contended that the names are idem sonans, nor that one is an abbreviation for the other. There is no likeness in the sound. (Cooley's Const. Lim., 608, 610-611; People v. Mayworm , 5 Mich. 146; Attorney-General v. Ely , 4 Wis. 430; People v. Ferguson, 8 Cow. 102; People v. Cook, 14 Barb. 259; People v. Tisdale, 1 Doug. 65; People v. Saxton , 22 N.Y. 309; Hart v. Evans , 8 Pa. St. 13; People v. Pease , 27 N.Y. 84; People v. Cicott , 16 Mich. 283; Clark v. Robinson , 88 Ill. 498.) The ballot, composed the one half of the Republican ticket, and theother half of a Democratic ticket, should clearly have been rejected under sections 1206 and 1207 of the Political Code, for it is impossible to attach two pieces of different ballots together so that the device is not visible from either side when unfolded. Such a ballot is also obnoxious to sections 1196 and 1197 of the Political Code, and is really a paster; so with a ballot which has the words " for Hancock and English" written under the vignette. Each of these ballots, in addition to being marked ballots, are evidently calculated to and were used to deceive the voter. Ballot one hundred and twenty-three, from the same precinct, has the name scratched off, and its validity must be determined from an examination of the ballot itself. (Kirk v. Rhoads , 46 Cal. 398.) The Court erred in receiving the envelope and the ballots therein contained, returned from the sixth precinct of the Eleventh Ward. When this package first came to the Court it was well sealed, and when it was brought into the Court for the purpose of evidence it had been broken open; the seal was broken and the string hanging out several feet. (Pol. Code, §§ 1257-1266.) The party offering this envelope or package, or relying upon it as evidence, must account for its appearance or condition. (1 Greenl. Ev., §§ 564-568; Code Civ. Proc., § 1982.) The primary evidence being destroyed, the next best, the official acts of the Precinct Board of Election, their tally-lists and returns must be taken under the presumption that official duty is correctly performed. ( Code Civ. Proc., § 1963, Subd. 15; McCrary on Elections, par. 78; People v. Halden, Brightley's Election Cases, 483; Butler v. Lehman, 1 Bart. 324; Kline v. Verru, 1 Bart. 281; Archer v. Allen, id. 169.) The Court erred in counting for the respondent the forty-two votes of the " National Greenback Labor Party," which were printed with a...

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