Brown v. St. Clair

• Decision Date: 23 September 1949
• Parties: BROWN v. ST. CLAIR et al.
• Court: Kentucky Court of Appeals

223 S.W.2d 173

311 Ky. 24

BROWN v. ST. CLAIR et al.

Court of Appeals of Kentucky

September 23, 1949

W. E Brown instituted an action against George R. St. Clair and others for a recount of ballots cast in primary election for nomination of county judge.

The Circuit Court of Meade County, George K. Holbert, J., entered a judgment for the defendant, and the plaintiff appealed.

The Court of Appeals, Rees, J., affirmed the judgment, holding that the Circuit Court properly counted certain contested ballots for George R. St. Clair, and correctly adjudged him to be the successful candidate.

M. T. Whitworth, Elizabethtown, for appellant.

L. A Faurest, Jr., Elizabethtown, A. Brooks Montgomery Elizabethtown, for appellees.

REES Justice.

George R. St. Clair and W. E. Brown were candidates in the Democratic primary on August 6, 1949, for nomination for the office of county judge of Meade County. The county election commissioners reported that St. Clair received a majority of five votes, and certified him as the Democratic nominee. W. E. Brown instituted an action for a recount of the ballots, and at the conclusion of the recount the court adjudged that St. Clair had received 1,275 votes and Brown had received 1,274 votes. Brown has appealed.

Forty-seven questioned ballots have been brought here for inspection by the court. Of these, sixteen were counted by the trial court for the appellee St. Clair, seven were counted for neither candidate, and twenty-four were counted for the appellant Brown. Four of the ballots counted for St. Clair were stamped by the voter partly in the space between the squares opposite the names of the two candidates, but in each instance the stencil mark extends well into the square opposite the name of St. Clair and we are convinced that it was the voter's intention to vote for him. Appellant contends that the mark in the square opposite St. Clair's name on ballot No. 5 is a blot from the stencil mark for Medley in the sheriff's race, resulting when the ballot was folded, but the mark is clear and distinct although the marks of only two prongs of the stencil appear. It is obvious that the voter applied the stencil at an angle when he voted for St. Clair. He applied the stencil in the same manner when he voted in the jailer's race. Ballot No. 6 was voted for St. Clair but a smudge appears in the square opposite the name of Brown. If the stencil was applied in the square, it is clear that the voter erased the mark. The court properly counted the ballot for appellee. Schaffield v. Hebel, 301 Ky. 358, 192 S.W.2d 84; Deckert v. Hesch, 296 Ky. 176, 176 S.W.2d 397. Appellant concedes that ballot No. 7 was properly counted for appellee. On ballot No. 8 there are several distinct stencil marks, including one in the square opposite the name of St. Clair, but there are also several blots. One of these is opposite Brown's name, but it is clear that this and the other blots resulted when the ballot was folded. A small part of ballot No. 9 is missing, and appellant contends that, although clearly cast for St. Clair, it should not be counted since the mutilation of the ballot by tearing off the top portion might have been a method devised to indicate to others the identity of the voter. KRS 118.320 prohibits the counting of any...