Harwell v. Morris, 5303.

• Decision Date: 30 September 1940
• Docket Number: No. 5303.,5303.
• Citation: 143 S.W.2d 809
• Parties: HARWELL v. MORRIS.
• Court: Texas Court of Appeals

Page 809

143 S.W.2d 809

HARWELL v. MORRIS.

No. 5303.

Court of Civil Appeals of Texas. Amarillo.

September 30, 1940.

Rehearing Denied October 4, 1940

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Oldham County; James W. Witherspoon, Judge.

Election contest by C. L. Morris against Roddy Harwell, who was declared by the executive committee of Oldham county to have been nominated as the Democratic candidate for county commissioner of precinct No. 3 of such county at primary election held on July 27, 1940. From a judgment for contestant, the contestee appeals.

Affirmed.

A. A. Lumpkin, of Amarillo, for appellant.

Gibson & Sutton, of Amarillo, for appellee.

STOKES, Justice.

This is an election contest instituted in the trial court by appellee, C. L. Morris, against appellant, who was declared by the Executive Committee of Oldham County to have been nominated as the Democratic candidate for County Commissioner of Precinct No. 3 of that county. The primary election was held on July 27, 1940, and appellant and appellee were rival candidates for the nomination. The talley sheets returned by the officials of the election revealed that appellee had received 180 votes and appellant 182 votes in the election, which returns were verified by the Democratic Executive Committee of that county on August 3, 1940. The list of nominees was duly published by the county clerk and on August 12th appellee filed his notice and petition of contest, which was set for a hearing September 3, 1940, at which time appellant filed his answer and the case proceeded to trial on that day in the district court. The case was submitted to the court without the intervention of a jury and at the conclusion of the hearing the trial court concluded that appellant had received only 173 legal votes and that appellee, who was the contestant, received 174 legal votes, and judgment was rendered accordingly from which appellant has prosecuted an appeal.

We are met at the outset by a motion to dismiss the appeal upon the ground that the trial judge was disqualified to try the case. Attached to the motion are affidavits which reveal that the wife of appellee, Morris, the contestant, is a sister of the wife of an uncle of the trial judge's wife. By following a process of mental gyration, it will be seen that Mrs. Morris was in no sense a blood relative of Mrs. Witherspoon, the wife of the trial judge. It is held by the courts that affinity is the relationship which arises by reason of marriage between one of the married pair and the blood relations of the other, and under the rules of law that are well established by the decisions of our courts the contention of appellant here presented is not well taken. The motion will be overruled. Seabrook v. First Nat. Bank, Tex. Civ.App., 171 S.W. 247; Williams v. Foster, Tex.Civ.App., 233 S.W. 120.

Appellee has filed a number of cross-assignments of error in which he contends that certain votes cast in favor of appellant and accepted and counted in appellant's favor by the court were illegal, and that other votes cast for appellee and rejected by the court were legal votes and should have been counted in his favor. Appellant objects to our consideration of these cross-assignments of error upon the ground that appellee did not perfect an appeal from the judgment. The cross-assignments all bear upon matters presented in the appeal by the appellant and affect his interest in the case. Appellee is, therefore, entitled to have them considered by us and the objection of appellant to their consideration will be overruled. Booth v. Uvalde Rock Asphalt Co., Tex. Civ.App., 296 S.W. 345; Hunt v. Garrett, Tex.Civ.App., 275 S.W. 96; Gilmer's Estate v. Veatch, 102 Tex. 384, 117 S.W. 430; Limpia Royalties v. Cowden, Tex.Civ.App., 94 S.W.2d 481.

Dr. Clark voted for appellant in the election and the trial court held he was not qualified to vote. The record shows that in June, 1940, Dr. Clark was convicted in the Federal Court in a criminal case in which he was charged with violation of the Harrison Narcotic Act, 26 U.S.C.A. Int. Rev.Code §§ 2550-2557. He entered a plea of guilty and his punishment was assessed at six months in jail, which was suspended for two years. The Federal Statute, 18 U S.C.A. § 541, provides that an offense, the penalty for which does not exceed six months in jail or a fine of $500, or both, shall be considered a petty offense and may be prosecuted upon information and complaint. The trial court held that Dr. Clark was not entitled to vote in the election because, under, 26 U.S.C.A. § 1047, of the Federal Statute, he could have been confined in the penitentiary by the Federal Court. Appellant contends this was error because the punishment actually assessed against Dr. Clark was only six months in jail. We do not construe 18 U.S.C.A. § 541 to mean that the punishment actually assessed by the court upon a trial shall control the class of the offense. It provides that all offenses, the penalty for which does not exceed confinement for six months, may be prosecuted under complaint and information. If appellant's interpretation were correct, then it would be impossible for the grand jury to know, when they were considering the question of whether an indictment should be returned, whether it was necessary to return an indictment or not. We think the law makers, therefore, must have had reference to the potential penalties under the law and not the actual punishment that might be assessed by the court upon a trial. This assignment of error will be overruled.

The record shows that M. L. Carter voted for appellant upon an exemption certificate, duly issued to him, under which he was excused from paying a poll tax on account of being permanently disabled. The court held that, under the facts, Carter was not disabled and was, therefore, liable to the payment of a poll tax under the law. His vote was, therefore, rejected by the court and appellant contends this was error. The evidence is conflicting upon the question of Carter's disability. It was shown that only a short time prior to the election he had operated a tractor, although under some difficulty, and that he was accustomed to riding a bicycle, although, after doing so, he would suffer pain. It was shown, also, that he was confined to his home and bed most of the time and that his health was far from being robust. The trial court found he was not disabled in the manner contemplated by the law. The office and purpose of the exemption certificate were to relieve the voter from the necessity of paying a poll tax. While the evidence does not show that Carter failed to pay his poll tax, it is shown that he voted upon his exemption certificate. Under the state of the evidence, the trial court would have been authorized to find either way upon the question of Carter's disability, and there being evidence to support his conclusion and judgment that Carter was not, as a matter of fact, disabled in the manner contemplated by law, and, therefore, his vote should not be counted, will not be disturbed.

The next contention made by appellant pertains to the vote of Mary Bell Godwin, the wife of Raymond Godwin. She cast ballot No. 161 in favor of the appellee, and the trial court held she was a legally qualified voter in Oldham County. This holding is challenged by appellant and we think the court erred in refusing to sustain the challenge. The testimony shows that Mrs. Godwin and her husband were married in Oldham County and lived there until June, 1938, when they removed to Castro County where the husband had procured employment. They moved most of their household furniture to Castro County and resided there for about a year. About the 1st of June, 1939, the employment came to an end and Godwin and his wife returned to Oldham County and lived there with the wife's father until July, 1939, when the husband obtained employment at Fritch, in Hutchinson County, where they have since resided. Their household furniture was left in storage at Vega, in Oldham County. It is undisputed that Mrs. Godwin, at the time of the election, resided at Fritch with her husband, and there is nothing in the testimony which indicates they did not intend to remain there indefinitely. Art. 2958, R.C.S., provides that the residence of a married man is where his wife resides. The husband has the legal right, however, to establish the residence of the family and, under the circumstances disclosed by the evidence, Mrs. Godwin lost her right to vote in Oldham County when her husband established their residence in Hutchinson County. In our opinion, the court erred in holding otherwise and this assignment of error will be sustained. Stratton v. Hall, Tex. Civ.App., 90 S.W.2d 865.

The next contention presented by appellant pertains to the vote of Fant Hitson who cast ballot No. 82 for the appellee. His right to vote was challenged by appellant and the challenge being overruled by the court, he assigns such action as error. Hitson testified that he had been convicted in the State of New Mexico of the offense of cattle theft, served a portion of an assessed term in the New Mexico penitentiary and was paroled. He testified that he employed a lawyer in New Mexico to obtain a pardon for him and that he paid the lawyer a fee for his services, but that he had never seen the lawyer since, had not received any pardon or document evidencing the issuance of one, and did not know whether he had been pardoned or not. Appellant, Roddy Harwell, testified that he went to Santa Fe, New Mexico, and, assisted by the Secretary of State and a clerk in his office, he examined the pardon records in the office of the Secretary of State and that such records did not reveal a pardon granted to Hitson. Some question is raised as to the admissibility of this testimony, but we think it was admissible and should have been considered by the court. In connection with the testimony of Hitson to the effect that he had...