Hodge v. Jones

Decision Date01 December 1897
PartiesHODGE v. JONES.
CourtTexas Court of Appeals

Appeal from district court, Robertson county; W. G. Taliaferro, Judge.

Proceeding by C. H. Hodge to contest the election of T. B. Jones to the office of sheriff of Robertson county. From a judgment setting aside the election, contestant appeals. Affirmed.

W. O. Campbell and W. I. Purdom, for appellant. Field & Taylor and J. L. Goodman, for appellee.

KEY, J.

At the last general election in this state appellant and appellee were opposing, and the only, candidates for sheriff of Robertson county. Returns were regularly made from all the voting precincts of the county except Sutton precinct No. 11. As required by statute, the commissioner's court canvassed the returns, and it appeared therefrom that appellee received 2,745 votes and appellant 2,707 votes, whereupon the county judge issued to appellee a certificate of election, and he qualified as sheriff of the county. Thereafter appellant instituted this proceeding to contest said election. He admitted that the returns before the commissioner's court showed that appellee had received a majority of 38 votes, but alleged that at Sutton box, precinct No. 11, an election was held in the manner prescribed by statute, at which box he received 127 votes, and appellee received 32 votes; that, after the returns from said box were made out and signed by the officers holding the election, said returns, together with the poll lists, tally lists, and ballots were destroyed by an armed force of men, who, in the nighttime, entered the house of the presiding officer of said election, and compelled him to deliver the same to them; and that said returns, poll lists, tally lists, and ballots were not considered by the commissioner's court in canvassing the election returns. Appellant also alleged that there was a mistake in the returns from the Hammond box, and, as shown by the tally sheets, he was entitled to 10 more votes at that box than were counted for him by the commissioner's court. Other grounds of contest were set up by appellant, but, as there was no testimony bearing upon them, it is unnecessary that they be stated. Appellee, in his answer, admitted that appellant was entitled to the 10 votes claimed by him at the Hammond box; also admitted that the returns, ballots, etc., from the Sutton box were seized by a mob, and destroyed. He also alleged that for certain stated reasons the election held in the Sutton precinct was irregular, illegal, and void, and denied that the returns prepared by the managers of said election showed that appellant received 127 votes and appellee only 32 votes. He also charged that there were a number of illegal votes cast at said box. Appellee also alleged that, if appellant should be allowed all the votes he claimed at the Sutton and Hammond boxes, he would not be entitled to the office, because at Hearne voting box, in precinct No. 2, the fairness and freedom of the election were interfered with by acts of violence and intimidation; "that on the day of the election, and after the polls were opened, and before they were closed at said box, in the forenoon of the election day, when a very large number of the legal qualified voters of said precinct were in the town of Hearne, and near the polls, and for the purpose of casting their ballots as rapidly as they could approach the polls, a number of armed men, with a view of preventing said electors casting their ballots, suddenly, and without any provocation, with guns and pistols and other deadly weapons, assaulted such voters at the polls and in the streets of Hearne, when great fear came upon the electors, and, through fear of their lives, and to escape threatened and real danger, more than 700 legally qualified electors fled in great terror and confusion from the polls through the town of Hearne, and to their several homes for safety, and did not return to the polls, and did not cast their ballots at said election." He also alleged that a large majority of the voters thus intimidated and prevented from voting intended and would have voted for him. In his supplemental petition, appellant made the following admission concerning the alleged violence and intimidation at the Hearne box: "And, further replying to the said amended answer, contestant says that it is true that a mob of armed men was guilty of the acts of violence and intimidation against the voters, and did commit the outrages against the public peace, good order, and good government complained of by contestee at the polling place at Hearne voting box No. 2, on the day and at the time and in the manner alleged by contestee." The case was tried by the court without a jury, and judgment rendered declaring the election for sheriff null and void, and directing the county judge to order another election in the manner required by law to fill said office. The contestant has appealed, and claims that the court erred in declaring the election null and void, and in not rendering judgment establishing the fact that he was legally elected sheriff of Robertson county.

There was testimony tending to show that the election was held at the Sutton box, that the returns were prepared and signed by the election officers in the manner required by law, and that appellant received 127 and appellee between 30 and 40 votes at said box. Therefore, if the intimidation which occurred at Hearne could be ignored, it may be, as contended by appellant, that he is entitled to judgment ousting appellee, and awarding the office to him. Article 1804f of the Revised Statutes of 1895 reads as follows: "Should it appear on the trial of any contest provided for in article 1801 that it is impossible to ascertain the true result of the election as to the office about which the contest is made, either from the returns of the election or from any evidence within reach, or from the returns considered in connection with other evidence, or should it appear from the evidence that such a number of legal voters were by the officers or managers of the election denied the privilege of voting, as had they been allowed to vote would have materially changed the result, the court should adjudge such election void and direct the proper officers to order another election to fill said office which election shall be ordered and held and returns thereof made in all respects as required by the general election laws of the state." It is contended on behalf of appella...

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4 cases
  • Holden v. Phillips, 5700.
    • United States
    • Texas Court of Appeals
    • August 5, 1939
    ...to contest." See, also, Bickley v. Lands, Tex.Civ.App., 288 S.W. 514; Robinson v. Bostrom, Tex. Civ.App., 21 S.W.2d 580; Hodge v. Jones, 17 Tex.Civ.App. 511, 43 S.W. 41. This revocation order by the county judge was only an incident in the process of this election. It was still being exhibi......
  • State ex rel. Lukovich v. Johnston, 12244
    • United States
    • Texas Court of Appeals
    • January 11, 1951
    ...must be excluded. This rule of law was first recognized and followed by the Courts of this state in the early case of Hodge v. Jones, 17 Tex.Civ.App. 511, 43 S.W. 41, 42, in which case the Court quoted from 1804f, which held that 'Should it appear on the trial of any contest provided for in......
  • Brewer v. Ross, 5047
    • United States
    • Texas Court of Appeals
    • October 27, 1954
    ...and was justified in holding that a new election should be held. Holden v. Phillips, Tex.Civ.App., 132 S.W.2d 419; Hodge v. Jones, 17 Tex.Civ.App. 511, 43 S.W. 41. Appellee's motion for rehearing is granted, and we affirm that part of the trial court's judgment holding said election void an......
  • Finley v. Jackson
    • United States
    • Texas Court of Appeals
    • December 1, 1897

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