Cole v. Plowhead

• Decision Date: 17 January 1918
• Parties: F. M. COLE, C. J. WESTCOTT and B. M. HOLT, Respondents, v. E. H. PLOWHEAD, Appellant
• Court: Idaho Supreme Court

170 P. 732

31 Idaho 288

F. M. COLE, C. J. WESTCOTT and B. M. HOLT, Respondents, v. E. H. PLOWHEAD, Appellant

Supreme Court of Idaho

January 17, 1918

ELECTION-BALLOT-BOX AS EVIDENCE-ADMISSIBILITY-CONFLICT OF EVIDENCE.

1. Held, that it is a fair inference from the evidence, as shown by the record in this case, that the contents of the ballot-box were in the same condition when offered in evidence at the trial as at the time of the close of the election, and that the lower court exercised a reasonable discretion in admitting in evidence said ballot-box and its contents.

2. Where there is a conflict in the evidence as to whether the contents of a ballot-box as disclosed at the trial are the same as at the close of the election, and there is substantial evidence to support the ruling of the trial court admitting the ballot-box and its contents in evidence, such ruling will not be disturbed on appeal.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Isaac F. Smith, Judge.

Action to contest election of Mayor of Caldwell. Judgment for contestants affirmed.

Judgment sustained. Costs awarded to respondents.

H. A Griffiths, Thompson & Bicknell, John J. Plowhead, Walter Griffiths and Thos. E. Buckner, for Appellant.

"In order to continue the ballots controlling as evidence, it must appear that they have been preserved in the manner and by the officers prescribed in the statute, and that while in such custody they have not been so exposed to the reach of unauthorized persons as to afford a reasonable probability of their having been changed or tampered with." (Hudson v. Solomon, 19 Kan. 177; 15 Cyc. 426; Fishback v Bramel, 6 Wyo. 293, 44 P. 840, 843; Newton v. Newell, 26 Minn. 529, 530, 6 N.W. 346.)

W. A Stone, Scatterday & Van Duyn and Curtis Haydon, for Respondents.

"A recount of the ballots in an election contest should not be rejected merely because there was possible opportunity to tamper with the ballots." (Sone v. Williams, 130 Mo. 530, 32 S.W. 1016.)

DAVIS, D. J. Budge, C. J., and Morgan, J., concur.

OPINION

DAVIS, D. J.

This is an appeal from the judgment of the district court decreeing that Fred L. Lilly was elected mayor of Caldwell, instead of Edward H. Plowhead, who had been declared elected by the board of canvassers of the election held April 24, 1917.

The principal points presented for the consideration of this court are whether or not the district court erred in admitting in evidence the ballot-box and its contents, used at the election, on the foundation offered to show that the ballot-box and contents had been properly kept, and had not been changed or tampered with; whether or not said district court should have stricken said ballot-box and contents from the record as evidence, in view of the facts apparent from the contents of the ballot-box, and other evidence pertaining thereto; and whether or not the evidence retained in the record was sufficient to sustain the judgment of the district court decreeing that Lilly was elected mayor.

It is practically conceded that the ballots as found in the ballot-box, when it was opened by the election judges some time after the election, gave...