Dowden v. Benham
| Decision Date | 08 February 1955 |
| Docket Number | No. 29088,29088 |
| Citation | 123 N.E.2d 872,234 Ind. 103 |
| Parties | William H. DOWDEN, Appellant, v. John Guy BENHAM, Appellee. |
| Court | Indiana Supreme Court |
Vosloh & Vosloh, by K. Parker Vosloh, Bloomfield, Beasley & Beasley, by Kern G. Beasley, Linton, for appellant.
Paul Haywood, George E. Jackson, Bloomfield, J. Raymond Powell, Linton, for appellee.
This is an appeal from a judgment in an election contest that the appellee, at the general election held in Greene County on November 4, 1952, was elected to the office of County Commissioner for the Second District of said county, for a term of three years from the first day of January, 1953. The finding was that the contestee, appellee herein, received 7,857 legal votes, and that the contestor, appellant, received 7,803 legal votes at said election. The judgment was entered on April 18, 1953, and the transcript was filed in this court August 17, 1953. On August 31, 1954, appellant's reply brief was filed here, and the appeal was distributed by our secretary September 7, 1954. On December 23, 1954, petition to advance was filed, which was granted January 3rd of this year.
Appellant has brought to this court three large boxes containing many two-bushel cloth sacks which apparently contain approximately 16,000 ballots voted in Greene County in the 1952 general election. In one cloth sack, which was tied with a string sealed with something like a small lead buckshot, we find the contested ballots which are assigned as causes for a new trial by appellant in his motion for a new trial.
In a separate roll accompanying the papers in this appeal we found contestee's exhibit Z-1 which purports to be a certified copy of the report of the Recount Commission. In the same roll appear contestee's exhibits U-1, V-1, W-1, X-1, N-1, O-1, P-1, Q-1, R-1, S-1, Y-1, T-1, which purport to be pages numbered consecutively 349 to 356, inclusive, and pages 378 to 382, inclusive, of the original signed order book pages from the Greene Circuit Court. It is too plain to require citations of authority that these separate documents form no part of the record here, will not be considered by us, and our Clerk is ordered to transmit them to the Clerk of the Greene Circuit Court. Appellee has filed a motion to strike exhibits from the files, part of the motion being directed to exhibits 1 to 16,649, inclusive. It will not be necessary to make a separate ruling upon this motion in view of our decision which disposes of this motion on its merits. We have carefully considered the question of what we may consider part of the record in order to dispose of this appeal on its merits, and in view of the judge's certificate to the bill of exceptions, and the unsettled practice with reference to bringing contested ballots on an election contest into the record on appeal, which we clarify by a rule adopted this date for future appeals, we have decided to determine the questions presented by the briefs on the validity of the questioned ballots assigned as causes for a new trial.
The statutory rules for determining the validity of votes by ballot material to this appeal are as follows:
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Section 29-5218, Burns' 1949 Replacement, Acts 1945, ch. 208, § 301, p. 680; 1947, ch. 156, § 1, p. 481.
It has been the policy of this court to give a liberal construction to a statutory provision on recounting votes. In Conley v. Hile, 1934, 207 Ind. 488, 499, 193 N.E. 95, 102, after a review of the decisions, this court said:
'While the statutes seek to keep the voter's ballot secret, so as to prevent corruption in elections, its primary purpose is to provide a means for the selection of officers by the free and untrammeled choice of honest, qualified voters; and, while a ballot which is intentionally mutilated, or on which the marking does not occur in the space provided by statute, or which is marked with characters other than those provided by statute, cannot be counted regardless of the apparent honesty and good intention of the voter, ballots will be counted which indicate an effort to comply with the statutory requirement as to the manner of marking, notwithstanding variation from the mark made by the average individual caused by unskillfulness, physical infirmity, bad eyesight, or light, or conditions not conducive to accuracy; and where markings are in the proper place, and there is an effort to make the statutory cross-mark, irregularities in the marking will be attributed to those causes unless the ballot upon its face fairly imports an intentional dishonest purpose.'
See also Dobbyn v. Rogers, 1948, 225 Ind. 525, 76 N.E.2d 570, and Wade v. McKibben, 1948, 226 Ind. 76, 78 N.E.2d 148.
Cause number 3 or the contestor's motion for a new trial asserted the trial court erred in refusing to admit in evidence and to count for the contestor certain numbered exhibits consisting of fourty-four separate ballots. However, in his argument section in his original brief the contestor waives any errors in this cause for a new trial except as to fifteen of these contested ballots which will now be considered by number.
Exhibit number 936 is an absent votor's ballot marked with a lead pencil. An absent voter's ballot is not required to be marked with a blue pencil. Section 29-4910, Burns' 1949 Replacement. 1 However, the voting mark in the circle is made by one line, which has been retraced, extending from top left to lower right, crossed by two parallel lines at least 1/16th of an inch apart at the top, extending from the upper right to lower left. This invalidates the ballot and it was properly excluded. Nicely v. Wildey, 1936, 210 Ind. 640, 5 N.E.2d 111; Craney v. Traylor, 1938, 214 Ind. 542, 547, 16 N.E.2d 845.
Exhibit number 1,015 is a straight ballot with a cross in the circle and under the party emblem. At the intersection of the cross the blue pencil was used to make a solid blue shading at least 1/8th of an inch across and 3/16ths of an inch high. This is a distinguishing mark voiding the ballot, and the trial court correctly ruled it should not be counted. Zeis v. Passwater, 1895, 142 Ind. 375, 379, 41 N.E. 796; Wade v. McKibben, 1948, 226 Ind. 76, 98, 78 N.E.2d 148, supra.
Exhibit number 3,002 is a straight ballot marked with a cross within the circle containing the party emblem. The ballot is regular on its face in every respect. However, on the back there is a very indistinct cross made with a blue pencil. This does not invalidate the ballot, and it should have been counted for the contestor since it has no appearance of being intentionally made by the voter, and could have been due to an accidental touching, or after it had been handed to the inspector for deposit in the ballot box. These faint lines appear on the outside of the back after the ballot was folded with the initials of the poll clerk showing. Craney v. Traylor, 1938, 214 Ind. 542, 546, 16 N.E.2d 845, supra.
Exhibit number 5,248 is a straight ballot marked with a cross within the circle containing the party emblem. However, in the lower left segment of the cross appears an additional blue pencil mark beginning 1/16th of an inch from the intersection and running roughly parallel to the line extending from top to bottom for a distance of 1/8th of an inch. This line appears to have been intentionally made and cannot be explained because of...
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