Armbrust v. Starkey

• Decision Date: 24 May 1954
• Docket Number: No. 33087,33087
• Parties: ARMBRUST v. STARKEY.
• Court: Illinois Supreme Court

Page 910

119 N.E.2d 910

3 Ill.2d 131

ARMBRUST v. STARKEY.

No. 33087.

Supreme Court of Illinois.

May 24, 1954.

Mayberry & Thornton, Lincoln, and Robert H. Brunsman, Springfield, for appellant.

Harris & Harris, Lincoln, for appellee.

DAILY, Justice.

Appellant, Jesse A. Starkey, and the appellee, Fred J. Armbrust, were opposing candidates for the office of supervisor of East Lincoln Township, Logan County, at an election held on April 7, 1953. A tabulation by the election judges of the ballots cast in the eight polling places in the township gave appellant 1052 votes and appellee 1050 votes. This return was confirmed by the canvassing board on April 9, 1953, and appellant was declared elected. Appellee filed a petition to contest the election in the county court; however, the cause was transferred to the circuit court of Logan County, on motion of appellant, and there heard by a judge residing outside the circuit. A recount was ordered, the result of which showed 1062 votes for appellee and 1044 votes for appellant. The circuit court thereupon entered an order declaring that appellee had received the highest number of votes and that he was the duly elected supervisor of the township.

On appeal to this court, appellant has assigned no error on the rulings as to ballots objected to, and it is conceded by both parties that the principal question for determination is whether the ballots were preserved in such a manner as to maintain their integrity as evidence. The law applicable when such an issue is raised is well settled and is succinctly summarized in Rogers v. Meade, 363 Ill. 630 at page 637, 2 N.E.2d 924 at page 927, as follows: 'The returns of the judges and clerks are prima facie evidence of the result of the election, but the ballots are the original evidence of the votes cast, and in case of a contest are better evidence of the result if they have been preserved in the manner prescribed by the statute. Talbott v. Thompson, 350 Ill. 86, 182 N.E. 784; Graham v. Peters, 248 Ill. 50, 93 N.E. 315. Conversely, if the evidence discloses that the ballots were exposed to the reach of unauthorized persons, and the returns are not discredited, the ballots will not be regarded as better evidence of the result of the election. Talbott v. Thompson, supra; Bolton v. Whalen, 350 Ill. 50, 182 N.E. 780. The question of whether the ballots have been properly preserved is in each action necessarily one of fact, to be determined by the evidence. Bullman v. Cooper, 362 Ill. 469, 200 N.E. 173; Sibley v. Staiger, 347 Ill. 288, 179 N.E. 877. The contestant is the moving party, and the burden rests upon him to prove that the ballots have been kept intact. It is not incumbent on the defendant to show that they have been changed, and unless the contestant shows that they have been kept in such a way that there was no reasonable opportunity for tampering with them they cannot overcome the returns. Talbott v. Thompson, supra; Bolton v. Whalen, supra; Alexander v. Shaw, 344 Ill. 389, 176 N.E. 441; Graham v. Peters, supra. Nor is it necessary that actual tampering with the ballots be shown, but it is enough to invalidate them as evidence that the opportunity for unlawful interference of unauthorized persons existed. Talbott v. Thompson, supra; Alexander v. Shaw, supra; Rottner v. Buchner, 260 Ill. 475, 103 N.E. 454.'

In the present case, it is appellant's contention that appellee failed to maintain his burden of proving the integrity of the ballots, that the manifest weight of the evidence showed a reasonable opportunity of access and for interference by unauthorized persons and that, for these reasons, the court erred in ordering and allowing a recount of said ballots. It is urged that these features are particularly true of the ballots cast in precincts 8 and 2.

The facts attendant to appellant's contentions show that during the course of the evening of the election the ballots were returned from the respective polling places, by one or more of the election judges for each precinct, to Myrtle Montgomery, the town clerk, at her home in Lincoln. In all instances the ballots were returned in cloth sacks which were placed in separate boxes for each precinct, along with other election records and supplies, and, as she received them, the clerk placed the boxes on a studio couch in her dining room. The couch was next to a screened window, four feet above ground level, which was locked by a hook on the inside. The boxes remained on the couch until April 10, at which time the clerk put all eight ballot bags in a large feed sack, the tally sheets and other returns in one box, and placed both on the floor at the head of a bed in a first floor bedroom occupied by an invalid son. The sack and box remained there until May 18, on which date they were delivered to the county clerk, where they were locked in a separate, sealed bin in a record vault. Two days later they were delivered to the circuit clerk and remained in his custody until opened at the trial. This officer likewise kept the sack containing the ballots in a separate, locked bin located in his record vault. Although appellant presents some argument that the proof was not sufficient to show that the integrity of the ballots was maintained while in the custody of the latter two officials, we think the manifest weight of the evidence is so to the contrary as to merit no detailed discussion in this opinion. Thus narrowed, the sole issue remaining is whether the ballots were properly preserved during the period they were in the custody of the town clerk.

The town clerk's home, which was, of necessity, also her office, is a one-story, five-room, frame house with a front and rear door. The front door opens into the living room, to the right of which is the bedroom occupied by her son and to the rear of which is the dining room, the kitchen and another bedroom. There is a basement from which there is access to the house proper, and it appears that a trap door on the back porch which leads to the basement has no lock on it. The clerk testified that the doors to the house were kept locked until the canvass was completed, but after that were allowed to remain unlocked during the daytime. After the ballots had been placed in her son's room, the clerk was absent from the house on many occasions during the daytime and the doors left unlocked. The only other member of the household was the clerk's invalid son, Roland Montgomery, age 43, who, although bedridden for fifteen years and unable to move his body or raise his head, possesses perfect eyesight and hearing and average intelligence. From his position in his bed he was able to view anyone who entered the front door or the living room and his mother's testimony was that he had said nothing about any person entering his room and disturbing the bag or box she had placed there. It was shown that the clerk had visitors and that the canvassing board met at her house prior to the time she placed the ballots in the son's room, but she testified that no one disturbed or examined them on any of such occasions.

There is no question but what the ballots from six of the eight precincts were sealed in the cloth sacks by the respective judges and remained that way from the time of their delivery to the town clerk until opened in court. As to precinct 2, however, the clerk and Winfield Bates, an election judge, testified that when the ballot bag for that precinct was delivered to the clerk on election night, it was discovered that the poll book and tally sheets had been inadvertently sealed inside. Bates broke the seal, withdrew the records and, although he tied up the bag, did not reseal it. The clerk, however, did reseal it the following morning but did not otherwise disturb it. When Bates was shown the bag at the trial, he stated that it appeared to be in the same condition as when he handed it to the clerk, except for the seal.

When first testifying about the ballot bag for precinct 8, the clerk testified that it had been delivered to her unsealed on election night by Donald Laux, one of the precinct judges. On cross-examination, she stated that she could not say whether there was a seal on the bag but her best recollection was that it was unsealed and that she had not, at any time, sealed it herself or otherwise interfered with it. When the bag was produced in court it was sealed. The clerk returned to the witness stand and testified that she had not examined the bag at the time of its delivery and stated that her earlier testimony was based upon a conversation with appellant in which he told her Laux had told him the bag was not sealed. Further, at this time, she repeated that she had not sealed the bag or bothered it in any way during the...