Montoya v. Ortiz.

• Decision Date: 19 September 1918
• Docket Number: No. 2212.,2212.
• Citation: 175 P. 335,24 N.M. 616
• Parties: MONTOYAv.ORTIZ.
• Court: New Mexico Supreme Court

24 N.M. 616

175 P. 335

MONTOYA

v.ORTIZ.

No. 2212.

Supreme Court of New Mexico.

Sept. 19, 1918.

Syllabus by the Court.

The rule announced in the case of Carabajal v. Lucero, 22 N. M. 30, 158 Pac. 1088, that, in the absence of a showing of fraud on the part of election officers sufficient to invalidate the returns and to cast discredit upon the ballots, preserved as required by law, the individual voters cannot be permitted to testify as to the candidates for whom they voted at an election, has no application to the question of the right of an illegal voter to testify as to the persons for whom he voted at an election.

In the case of illegal voters, it is universally recognized that the right to examine the voters in such a case is in affirmance and vindication of the essential principle of the elective system that the will of the majority of the qualified voters shall determine the right to an elective office, and the testimony of the voter, after it has been shown that he voted illegally, is competent and should be received by the court for what it is worth.

An illegal voter cannot be required to testify in the first instance as to whether he did in fact vote, if he claims his constitutional privilege against self-incrimination, but, if it is proven by other evidence that he did vote, he may then be compelled to testify for whom he voted.

Circumstantial evidence is competent to prove the fact for whom an illegal voter voted, and, where the facts and circumstances in evidence clearly establish for whom he voted, the court is justified in finding the ultimate fact.

Circumstantial evidence may be resorted to where it does not appear from the testimony of the voter for whom he voted.

Where it is shown that ballot boxes have been in the custody of parties not entitled thereto, the burden rests upon the contestant to show that during such time the ballot boxes were not tampered with.

Departure from the strict letter of the statute as to the preservation of the ballots will not warrant their rejection, unless the statute so provides, in the absence of fraud or any suspicion of fraud.

An election is void where qualified electors are corruptly and fraudulently deprived of an opportunity to vote, sufficient in number, had all been counted for the next highest candidate, to have changed the result of the election.

An appellate court is not absolutely obligated, on reversal, to render or order final judgment, but the court is invested with a discretion to either render final judgment, or to direct the lower court to enter judgment, or to remand the case for a new trial or other proceedings, and, where it appears that justice requires that a cause be remanded for a new trial, it will be so ordered.

Appeal from District Court, Sandoval County; Raynolds, Judge.

Election contest by Alfredo N. Montoya against Preciliano Ortiz. Judgment for contestee, and contestant appeals. Reversed and remanded.

An illegal voter cannot be required to testify at first instance as to whether he voted, if he claims his constitutional privilege against self-incrimination.

A. B. Renehan, of Santa Fé, and A. A. Sedillo and R. P. Barnes, both of Albuquerque, for appellant.

Neill B. Field and A. G. Simms, both of Albuquerque, for appellee.

ROBERTS, J.

At the general election held November 7, 1916, appellant was a candidate on the Republican ticket in Sandoval county for the office of county clerk of said county. Appellee was the candidate on the Democratic ticket. On the face of the returns appellee was elected by seven majority over appellant. Appellant instituted a contest for the office under article 6, c. 32, Code 1915. In his notice of contest he alleged that certain persons not qualified to vote in designated precincts in said county had voted at said election for appellee. He also alleged that the returns made in certain precincts were incorrect. Appellee answered, denying generally the allegations in the notice of contest, and set up the fact that certain ilegal votes had been cast in designated precincts for appellant. Appellant asked for a recount of the ballots in certain precincts as authorized by section 1999, Code 1915. The recount was made by the board of county commissioners as in said section provided, and the result certified to the court. There was a discrepancy between the returns made by the election officers as to three precincts so counted, Nos. 5, 8, and 15, and the return made by the board of county commissioners. The count made by the board of county commissioners, if allowed to stand, would alone have given appellant a slight majority.

The evidence was taken before a commissioner appointed by the court. Appellant introduced evidence to show that in stated precincts certain named persons had voted; that such persons so voting were not residents of the precincts in which they had voted; and it may be stated that the fact that they had voted, and that they were not legal voters within the precincts wherein they so voted, was clearly established by the evidence.

Thereupon appellant placed upon the stand the person so voting and asked for whom he had voted. The witnesses in several instances, without objection, testified that they had voted the Democratic ticket and had voted for the appellee. In other instances the persons so shown to have voted illegally either refused to testify or could not be obtained as a witness. In these cases appellant put in evidence facts and circumstances which he claims show conclusively that the voters in question voted the Democratic ticket. His evidence tended to show that in some instances the voters were taken to the polls by Democratic workers, that they received their ballots from parties engaged in distributing Democratic tickets, and other facts and circumstances which tended to show that the voters in question supported the Democratic candidates.

After the evidence for the appellant was put in, appellee introduced evidence for the sole purpose of impeaching the recount by the board of county commissioners of the three precincts stated. The evidence on this point was quite voluminous, and it would unduly lengthen this opinion to set it out. The evidence directed to this end consisted, first, of the testimony of the election officers in the three precincts in question to the effect that they had correctly canvassed the vote and certified the result. In each precinct there was also evidence of some parties present at the count to the same effect. Second, it was shown that the boxes had been sealed with wax, the key of each box tied to a string and dropped in the aperture for the reception of ballots, and paper or cardboard sealed over the aperture; that, as to precinct No. 5, at the time of the recount by the commissioners the card placed over the aperture had been reversed; that one end of the card was loose, so that the key could be removed. As to one of the other precincts it was shown that the lid of the ballot box had been sealed down with wax at the time of the canvass, in addition to sealing the aperture, and that, at the time of the recount by the board of county commissioners, the lid was not sealed. A paper had been sealed over the aperture for the reception of ballots, but it had been sealed in such a manner that the key of the lock could be removed and replaced without breaking the seal. In the other box the key was sealed inside the aperture. The evidence was to the effect that these boxes, or two of them at least, had been taken to Bernalillo, one of the boxes by some one other than the judge of election, it having been sent by a messenger carrying boxes from other precincts. When the boxes reached Bernalillo they were taken by the parties having them in charge to the county clerk's office. There they were told either by the county clerk or by some other person that it was their duty to send the boxes to Antonio Lucero, Secretary of State, at Santa Fé. Thereupon the boxes were taken by the persons having them in charge to the Wells Fargo Express office, in Bernalillo, and were sent by express to the Secretary of State. Just how long these boxes remained in the possession of Mr. Lucero does not clearly appear, but some time after his receipt of the boxes he sent them by express to the county clerk of Sandoval county at Bernalillo. The county clerk testified that, during the time the boxes were in his possession prior to the canvass of the returns by the board of county commissioners, he placed the boxes in a closet in his office, having a wooden door, locked by an ordinary lock, and that each political party appointed guards who stood watch, both day and night, until the completion of the canvass by the board of county commissioners; that immediately after the canvass he placed all the ballot boxes in the iron safe in his office; that his predecessor in office knew the combination to the safe, and that the appellant in this case had been the county clerk of the county immediately prior to the election of appellee's predecessor; that he purchased the safe and knew the combination; that the ballot boxes remained in the safe until after the institution of the contest herein, when, by order of the district court, he took the boxes to the First Savings Bank & Trust Company in Albuquerque, and they were placed in the vault of said trust company for safe-keeping.

Mr. Montoya testified that he did not know the combination to the safe in the clerk's office; that while he was county clerk he did not give personal attention to the office, but left it in charge of his deputy, and that the deputy alone knew the combination to the safe.

All the parties having charge of the ballot boxes in question, with the exception of the Wells Fargo Express Company agent, the Secretary of State, and the officers and agents of the First Savings Bank & Trust Company, testified that while the boxes were in their possession they were not tampered with. The county clerk said...