Jones v. Glidewell

• Decision Date: 19 April 1890
• Parties: JONES v. GLIDEWELL
• Court: Arkansas Supreme Court

13 S.W. 723

53 Ark. 161

JONES v. GLIDEWELL

Supreme Court of Arkansas

April 19, 1890

APPEAL from Pulaski Circuit Court, J. W. MARTIN, Judge.

Judgment affirmed.

F. M Fulk, Compton & Compton and Blackwood & Williams for appellant.

The judgment of the court below was contrary to the evidence.

Every individual case of alleged bulldozing was entirely disproved. In nearly every township and ward where intimidation and bulldozing is alleged, contestee sought to establish it by some negro who is a cross between a political bummer and a "licentious" preacher. And in every instance where a respectable, disinterested white man swore, he testified that it was the most quiet and peaceable election he had ever seen, that there were no fights or disturbances, or arms or armed men around the polls, no angry talk; that he saw no one interfered with in his right to vote. There was no concert of action, or force or compulsion used to make any one vote an open ticket. Take these facts and compare with the election in the Patton-Coates case and see what a difference. 41 Ark 136. The judges and clerks were not interfered with; no proof of violence or threats of violence. An election cannot be avoided because some cowardly negro gets scared. Judge Eakin carefully distinguishes between cases where fraud and intimidation are flagrant and general, and pre-arranged and premeditated, and those where they are slight and immaterial. See 41 Ark. 126. Any other rule would lead to a most deplorable result, the abolition of popular elections. No party, nor the candidates of any party, can padlock the mouths of a few bullies. There are always loud-mouthed partisans who will talk, and if the courts gave credence and effect to such talk, it would simply encourage fraud, bribery and corruption.

Voting open tickets was simply that a tally might be kept, and was inaugurated in order to reap the benefit of the votes cast which previously had not been counted. While every voter is entitled to a secret ballot and cannot be compelled to disclose how he voted, yet it is a personal privilege that he may waive. 49 Ark. 242. Bogus tickets and stripped tickets are both fraudulent devices and are entitled to no consideration. McCrary on Elections, secs. 647, 655.

The court abused its discretion in permitting contestee to take up ten days in introducing evidence to show intimidation, and in limiting contestant to three.

The returns and findings of the election officers are quasi records and prima facie evidence of the result. 50 Ark. 95. When contestant made his case by prima facie evidence, the burden was shifted to contestee to establish by affirmative proof that they do not speak the truth. If they rely on intimidation, they must establish it by evidence sufficient to set aside the returns. This has not been done. There is a difference in setting aside the returns and the election. The election is only to be set aside when it is impossible to ascertain the true result. McCrary, Elec., sec. 483.

The proof in this case does not show more than four or five voters who were changed, or that there was any pretense that more than this number were kept from voting under any pretext.

The court below based its judgment solely on the ground that there was such intimidation as rendered the result doubtful and for that reason void, and relied upon 41 Ark. 111. But he misapprehended the grounds upon which that case stands. Then there was a design and preconcerted plan for the introduction of fraudulent votes, which, taken with intimidation, avoided the election in the sixth ward. 41 Ark. 144. Fraudulent voting and intimidation concurred in that case; in this there is evidence of neither. The judgment should be reversed, and judgment entered here for Jones.

F. T. Vaughan, T. B. Martin and W. L. Terry for appellee.

The burden is on him who assails the findings of the lower court. 31 Ark. 479; 36 Ark. 261. The circuit judge had the witnesses before him, observed their manner of testifying, and his finding is entitled to the same weight as the verdict of a jury. Elections cannot be said to be free when fear deters from the exercise of free will, although there may be no turbulence. 41 Ark. 124, 144. The most effective work of intimidation had been accomplished before the day of election, and only the visible signs of its machinery at work at the polls were the "committees," "spotters," the system of voting the "open ticket," and the remarks of "Democratic nigger," "mark him," "take his name down," "we will remember him," etc., and like threatening remarks. This is intimidation of the most potent character. The evidence shows social and church ostracism, threats, denunciations and other bitter, proscriptive methods adopted to prevent a free ballot. If there was any evidence to support the finding of the court it should be sustained.

One of the issues in this case was whether there was prevailing among a large number of colored voters a state of mind or feeling that it would not be safe for them to vote the Democratic ticket. Any fact or circumstance which would naturally tend to produce such state of mind or feeling was relevant, such as reports circulated, or rumors all through the community. Stephen's Dig., Ev., art. 2, p. 18; Whart., Ev., vol. 1, secs. 20, 21; 42 Ark. 554. These rumors naturally tended to deter and did deter negroes from voting the Democratic ticket. Whart. on Ev., vol. 1, sec. 254.

Religious ostracism is to be regarded as intimidation or undue influence in itself, and not a circumstance that may be looked into in connection with other evidence to show whether or not there was in fact intimidation. Paine on Elections, sec. 472; A. & E. Enc., Law, vol. 6, p. 362.

The circuit court did find the particular facts constituting intimidation, and that they were such as to render the result doubtful. This was sufficient without particularizing the precincts. The judgment is right on the whole case, and the reasons and methods in arriving at the conclusion are immaterial. This appeal only involves a question of fact, and this court does not reverse, unless for utter want of testimony. 31 Ark. 479; 36 Ark. 261.

The Patton v. Coates case, 41 Ark. 146-7, settles the law.

COCKRILL, C. J. BATTLE, SANDELS and HEMINGWAY, JJ., concur; HUGHES, J., having been of counsel for parties did not participate.

OPINION

COCKRILL, C. J.

Jones and Glidewell were opposing candidates for the office of county treasurer of Pulaski county at the general election in 1888. Glidewell received the certificate of election, and entered upon the duties of the office. Jones thereupon instituted this contest for the office. In the circuit court, where the cause was heard on appeal from the county court, the judge found that Jones had received a majority of the votes cast at the election, but refused to award him the office upon the ground that the evidence showed that his adherents had been guilty of illegal practices of such character and so wide spread as to avoid the election. Jones contends that the finding is not warranted by the testimony, and asks us to review the evidence for the purpose of reversing the judgment on that ground.

It is not the practice of appellate tribunals, and has never been the practice of this court, to enter anew into the investigation of issues of facts which have been tried in a law case by a circuit judge upon conflicting testimony. When a jury is waived by the parties, and the issues of facts are tried before the judge, his findings of fact are as conclusive on appeal as the verdict of a jury; and when the law makes the judge the trier of facts in cases to which the constitutional right of trial by jury does not extend, the same presumption attends his findings. Corley v. State, 50 Ark. 305, 7 S.W. 255. The reasons which sustain the rule in the one case exist as well in the other. The statute has not established a different rule for election cases, and there is nothing in the policy of the law to warrant the courts in doing so. On the contrary, the rule was followed in Powell v. Holman, 50 Ark. 85, 6 S.W. 505, and in Wheat v. Smith, 50 Ark. 266; and in Patton v. Coates, 41 Ark. 111, the cause was remanded to the circuit court for a new trial, whereas if the court were at liberty to review the facts as in an equity case, judgment would have been entered here in accordance with this court's conclusion upon the facts. But while we will not enter upon an investigation to ascertain where the weight or preponderance of the testimony lies, it is our province to determine whether a given finding or verdict has testimony to sustain it; and where there is no conflict in the evidence, or the facts are specially found, the conclusion of law or judgment to be deduced therefrom is purely a question of law to be finally determined by this court.

In the case at bar the court found generally for the contestee, refused the contestant's request to find that the evidence of illegal practices was not sufficient to warrant the exclusion of the vote of any precinct, and made a special finding of facts.

The trial consumed many days, and the record is voluminous. The evidence which counsel have pointed out as material is in hopeless conflict upon most of the issues, but these conflicts have been determined by the trial judge in favor of the contestee, and that determination is, as we have seen, final. The questions are, what conclusions of fact could the trial court legally draw from the evidence, and what judgment does the law pronounce upon those conclusions?

It may be said that a preponderance of the testimony shows that at the outset of the campaign many of the negro electors of Pulaski county evinced a desire to vote for favored candidates on the Democratic...