Dobbyn v. Rogers
| Decision Date | 08 January 1948 |
| Docket Number | 28307. |
| Parties | DOBBYN v. ROGERS. |
| Court | Indiana Supreme Court |
[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]
Appeal from Daviess Circuit Court; Lester Nixon, Special judge.
Seal & Seal, of Washington, and Carl M. Gray, of Petersburg, for appellant.
McDonald & McDonald, of Princeton, Arterburn & Hart, of Vincennes, and Robert J. Hyatt, of Washington, for appellee.
The appellee, Arthur Rogers, and the appellant, Fred Dobbyn, were candidates for the office of Judge of the 49th Judicial Circuit composed of Daviess and Martin Counties at the general election held on November 5, 1946. They were the only candidates for said office. Appellee was the Republican candidate and appellant was the Democratic candidate. The appellant was duly certified to have been elected by a majority of the votes cast.
This action was commenced by the appllee by filing a petition to contest on account of mistake the official count of votes. This petition also requested a recount of votes and the same was granted, the result of which showed appellee had received a majority of the votes cast. Thereupon a hearing of the contest was had. The trial court found that the appellee had received 8,102 legal votes and that the appellant had received 8,094 legal votes. Upon this finding appellee was adjudged elected to said office. It is from this judgment this appeal is prosecuted.
Since the submission of this cause to this Court the appellee has died as is suggested by the appellee's counsel. The following judgment will therefore be entered as of the date of the submission, to-wit: April 30, 1947.
The appellant has assigned as error the overruling of his motion for a new trial wherein he questions the admission in evidence of certain ballots voted for the appellee and the rejection of other ballots voted for the appellant. The appellee, by way of cross-error, has questioned the admission in evidence of certain ballots voted for the appellant and the rejection of others voted for the appellee.
We will first consider the rulings not waived on the admission and exclusion of ballots challenged by appellant's motion for a new trial.
Appellee's Exhibits 1, 49, and 54 which were counted have the voting marks in the Republican circle. Each of these voting marks discloses a line in the form of a spur at the end of one or more of the arms of the cross. In each of these crosses this line is very faint. It would appear that this line was made in each instance by the failure of the voter to lift the pencil from the paper between the completion of one stroke and the beginning of the other stroke of the cross. We attribute these irregularities either to unskillfulness, physical infirmity, or conditions not conducive to accuracy. Nothing appears on the face of the ballot which would indicate an intentional, dishonest purpose. Conley v. Hile, 1934, 207 Ind. 488, 193 N.E. 95; Craney v. Traylor, 1938, 214 Ind. 542, 16 N.E.2d 845. These ballots were properly counted.
Appellee's Exhibits 10 and 45 which were counted have the voting marks in the Republican circle. The mark on each ballot is like the figure '4' placed in a slanting position. None of these marks are faint. We consider the mark which connects the two arms of the cross on each ballot a distinguishing mark. Neither ballot should have been counted. Craney v. Traylor, supra, 214 Ind. at page 550, 16 N.E.2d at page 848.
On appellee's Exhibit 2 in the Arthur Rogers square the mark is small and resembles an inverted 'V' and the lines do not cross. This marking invalidates this ballot. Nicely v. Wildey, 1936, 210 Ind. 640, 5 N.E.2d 111; Craney v. Traylor, supra. Section 29-5218, Burns 1933, 1945 Supp., among other things provides:
.
This ballot should not have been counted.
On appellee's Exhibit 108 in the Arthur Rogers square are two lines which roughly form a letter 'T' inverted to the left. These lines do not cross. For the reasons given for the rejection of appellee's Exhibit 2 this ballot should not have been counted.
Appellee's Exhibit 115 has but one voting mark and that is in the Republican circle. The character resembles the letter 'T' with a curved top. It is inverted to the left and the lines do not cross. This ballot should not have been counted for the reasons heretofore set out for the rejection of appellee's Exhibit 2.
Appellee's Exhibits 4, 8, 13, 15, 77, and 94 have the voting mark in the circle. Exhibit 100 has a voting mark in the Arthur Rogers square. Aside from said Exhibit 94 each of these voting marks has a bar, check, hook, prong, or an extra line appended to the arms of the cross.
Said Exhibit 94 contains some very fine, irregular blue pencil marks on the lower left-hand portion of the same. It is apparent these marks are accidental. They are too fine and wavy to have been intentionally placed on this ballot.
All of these ballots were correctly counted for the reasons we have heretofore given for the counting of appellee's Exhibit 1.
On appellee's Exhibits 6, 14, 26, 32, and 85, which are mixed ballots, there appears on each an erasure in a square other than that of the appellee. As to Exhibit 6, and 85, at the place of erasure in each, there is a slight hole through the paper evidently caused by such erasure. Said Exhibit 32 also contains a smudge or soiled spot 1 1/2 inches long and one-half inch wide which might have been caused by a finger mark or a greased or soiled hand and could have been made unintentionally.
As to erasures or marks our statute provides:
'* * * except that an erasure or a mark other than a cross X mark made in a voting square shall not make the ballot void, but shall render it blank as to the office, party position or question in connection with which it is made.' § 29-5218, Burns 1933, 1945 Supp. Rule 1.
As to the smudge or grease spot on Exhibit 32 a similar ballot was held valid in Nicely v. Wildey, supra. As to the slight hole in Exhibit 6, and 85 there was no intentional mutilation as the same was evidently caused by the erasure. See Conley v. Hile, supra. Appellant also insists that the lines do not cross in the square of the appellee. With this we cannot agree. All of these ballots were correctly counted.
Appellant objects to the counting of appellee's Exhibits 7, 39, 59, 62, and 76 which are all cases where there is a tear in the ballot but no part of the ballot is missing and the voting thereon is unmarred and clear in every detail. There is no evidence that the tearing of any of these ballots was done by the voter. It is only where the voter defaces or tears the ballot that the same is invalid. § 29-5218, Burns' 1933, 1945 Supp. Rule 1. We also note that these torn ballots are similar to the ballot identified as appellant's Exhibit 38 which was admitted and counted for the appellant and which admission was waived in the appellee's cross-error brief. Due to this fact the appellant is not in position to raise objection. Glick v. Hunter, 1920, 190 Ind. 51, 129 N.E. 232, 233. All of these torn ballots were correctly counted.
We have examined appellee's Exhibits 31, 37, 52, 53, 58, 60, and 73. These ballots were correctly counted. On each of these ballots one of the voting marks, which appears in the circle, is paralleled with one or more dull straight lines. It is our opinion that these extra marks could have been made with a split or broken pencil and that an honest effort to comply with the law was made by the voter in each instance. We also note that there are numerous ballots offered by the appellant and admitted by the trial courts similar to these exhibits, to-wit: appellant's Exhibits 2, 5, 50, 57, 113, and 135; and to the counting of same the appellant has waived error. On appellee's Exhibit 11 which is a mixed ballot only one line instead of a cross appears in the square of a candidate other than appellee. Also there is a dull fine line in the cross parallel to one of the lines of the cross in a square other than the one before the name of the appellee. These marks do not invalidate this ballot as to appellee. § 29-5218, Burns' 1933, 1945 Supp., Rule 1(d). All of these exhibits were properly counted.
On the back of appellee's Exhibit 25 in the upper part thereof is written in ink 'Vote Not Counted.' Clearly this writing was done by the Election Board as part of their computation and did not invalidate this ballot. Conley v. Hile, supra. Also on this exhibit, which was a mixed ballot, in the cross in the square before appellee's name appears a faint mark parallel to one of the lines of the same. In our opinion this mark does not invalidate this ballot for the reason set out in discussing appellee's Exhibit 31. This ballot was correctly counted.
The voting mark appears in the circle of appellee's Exhibit 17. The mark is made up of two lines crossed by two other lines. In our opinion this is a distinguishing mark and would invalidate this ballot had not a similar ballot identified as appellant's Exhibit 50 been admitted for the appellant which admission was waived in appellee's cross-error brief. Due to this fact the appellant is not in a position to object to said Exhibit 17, Glick v. Hunter, supra, and the same was correctly counted.
Appellee's Exhibits 18 and 19 were properly...
To continue reading
Request your trial
-
State ex rel. McCormick v. Superior Court of Knox County
...votes and therefore has title to the office. Brown v. State ex rel. Stack, 1949, 227 Ind. 183, 84 N.E.2d 883, supra; Dobbyn v. Rogers, 1948, 225 Ind. 525, 76 N.E.2d 570; State ex rel. Watson v. Pigg, 1943, 221 Ind. 23, 46 N.E.2d 232, supra; Lumm v. Simpson, 1935, 207 Ind. 680, 194 N.E. 341.......