Craney v. Traylor

• Decision Date: 15 October 1938
• Docket Number: 27130.
• Citation: 16 N.E.2d 845,214 Ind. 542
• Parties: CRANEY v. TRAYLOR.
• Court: Indiana Supreme Court

16 N.E.2d 845

214 Ind. 542

CRANEY v. TRAYLOR.

No. 27130.

Supreme Court of Indiana

October 15, 1938

Appeal from Daviess Circuit Court; Frank E Gilkison, Judge.

Padgett & Rogers and Dobbyn & Lehman, all of Washington, for appellant.

Stephen E. Myers, of Washington, and Wm. E. Jenner, of Shoals, for appellee.

PER CURIAM.

Appellant and appellee were candidates on the Democratic ticket for the nomination of township trustee of Barr township, Daviess county, Indiana, at the primary election held on May 3, 1938. That at this election the precinct election board received and counted for appellee two hundred and fifty-five votes and received and counted for appellant two hundred and fifty-five votes. That on the 6th day of May, 1938, appellant and appellee having received an equal number of votes the county board of canvassers determined by lot as provided by statute Sec. 29-1903 Burns' Ann.St.1933, Sec. 7252 Baldwins Ind.St.1934, that Joseph H. Craney, appellant, herein had been duly nominated. Thereafter this contest was instituted and submitted to the court and the court found and determined that the appellee herein had received two hundred fifty-one votes and that appellant received two hundred fifty votes and that the contestor, appellee herein, was entitled to be declared nominated for such trustee and judgment was so entered.

Appellant challenges the ruling of the court in counting for contestor over his objections ballots marked exhibits A, B, C, D, E, F G, H, I, J, K, L, M, N, O, P, Q, R, S, T, U, V, W, and X, and also in refusing to count ballots marked exhibits 1, 3, 18 19, 22, 35 and 36.

Appellee assigns cross-errors and complains of the courts ruling in counting ballots marked exhibits 2, 4, 5, 7, 9, 10, 12, 20, 23, 27, 28, 31, 33, 37 and 39, counted for appellant.

The only question therefore presented by this appeal is the correctness of the courts ruling on the challenged ballots.

Contestee, challenges the ballot marked Contestor's exhibit A. This ballot has a curved mark about one and one half inches long made by a black lead pencil in the upper center of the ballot in the space for County Surveyor. Appellant relies upon the statement made by this court in the case of Borders v. Williams, 1900, 155 Ind. 36-42, 57 N.E. 527, wherein the following language is used [page 529]: '* * * and, if the elector desires to vote a mixed ticket, he shall omit the mark from the circle inclosing the party device, and indicate his choice of candidates by making a cross in the square immediately preceding their names; and a mark upon the ballot in violation of these provisions shall be treated as a distinguishing mark.' But the court followed this statement by the following observation: 'These provisions of the statute must be construed together in determining when the character provided by law shall be regarded such a distinguishing mark as to invalidate the ballot. It is clear from the law itself that the legislature intended it should be so regarded only when its position upon the ballot makes doubtful the intention of the voter, or casts suspicion upon the integrity of the vote.' There is nothing in the evidence that discloses who or in what manner the curved black pencil mark was placed upon the ballot. It seems clear that there is nothing about this mark that would in any cast a suspicion upon the integrity of the voter. The voter clearly indicated by a blue cross mark his choice of candidates. We hold that this ballot was properly counted for the contestor.

Appellant next questions contestor's exhibit C, on the ground that this ballot has a distinguishing mark which invalidates it, and therefore it should not have been counted. The alleged distinguishing mark is a blue mark in the space marked 'For Justice of the Peace,' at the lower right of the ballot. This mark is a broken line about 3/8 of an inch long and resembles an obtuse angle with the vertex pointing upward. It is not in any voting space. This ballot, we think, is controlled by the statement made in the case of Nicely v. Wildey, 1936, 210 Ind. 640-645, 5 N.E.2d 111, in which the court said [page 114]: '* * * exhibit 23 has a small blue line drawn across the square opposite the name of Morris Wildey, and it appears that these lines were made accidentally with no design to distinguish the ballots.' So with exhibit C, and this ballot was rightfully counted for contestor.

Contestor's exhibit D, has at the top of the ballot a design made with ink. This mark consists of a rectangle about 1/2 inch long and 1/4 inch wide with the base line extended about 1 1/2 inches to the right, and the right end of the rectangle extended downward beyond the base about 1/2 inch in a wavy design. This mark could not have been made by accident, and constitutes a distinguishing mark that invalidates the ballot. Burns' Ann.St.1933, § 29-1301, Sec. 7147 Baldwins Ind.St.1934, Borders v. Williams, supra, p. 42, 57 N.E. 527.

Objections to contestor's exhibits E and F, are waived.

Exhibit G, is objected to because of alleged improper marking. In the space opposite the name of Charles A. Kidwell there is a small blue mark instead of a cross. An examination of this mark, shows that the mark is a small slanting line from the upper left to the lower right but no line at all across this slanting line. While the statute requires an x after the name voted for, the voter of this ballot marked the ballot with an exceedingly small x. Some of the lines making the cross being less than one eighth of an inch long. It is evident from the face of the ballot, and from the manner employed by the voter that in making the very small x that he failed to make the cross opposite this one candidate. But it is of such a character as not to invalidate the ballot. This ballot was rightfully counted for the appellee.

Exhibit H, should not have been counted. The marking for the last candidate, in the lower right hand corner consists of one slanting line from the upper left to the lower right and crossed by two separate parallel lines from the upper right to the lower left. This is in accord with our holding in the case of Nicely v. Wildey, supra.

Exhibits I, K, L, O and W, are marked similar to exhibit H, and for the same reason should not have been counted for contestee.

Objections to exhibit J, are waived.

Exhibit M, is marked at number 12, with a check mark with a slanting line crossing the vertical line of the check mark. The small prong attached to the lower end of the vertical line of the check mark can easily be accounted for by a...