Owens v. State ex rel. Jennett

• Citation: 64 Tex. 500
• Decision Date: 20 October 1885
• Docket Number: Case No. 1870.
• Parties: WM. P. OWENS v. THE STATE EX REL. R. C. JENNETT.
• Court: Texas Supreme Court

64 Tex. 500

WM. P. OWENS

v.THE STATE EX REL. R. C. JENNETT.

Case No. 1870.

Supreme Court of Texas.

Oct. 20, 1885.

APPEAL from Galveston. Tried below before the Hon. W. H. Stewart.

The facts, so far as necessary to an understanding of the case to which the principles announced apply, will be found, in the main, contained in the opinion. The litigants were rival candidates for the office of sheriff of Galveston county at the general election of November 4, 1884. The official returns showed that Owens received 2,025 and Jennett 1,985 votes for sheriff at that election. Jennett charged in effect that the ballots cast at certain wards were falsely and fraudulently counted, tallied and returned, to his prejudice, etc.

Answer, denial, and that errors and mistakes in respect to the manner of counting the ballots were made against respondent in certain precincts named. Also, that a large number of illegal ballots were cast and counted for relator; ballots containing other matter printed thereon than allowed by statute and in violation of the same, as referred to in the opinion.

Relator excepted to this answer, and the court sustained the exception to all that matter of defense predicated on illegal votes cast, as shown by exhibits. Respondent then filed a trial answer.

Verdict and judgment for the relator for the office.

Wheeler & Rhodes, for appellant, cited: Cooley on Const. Lim. (4th ed.), 770 [[[[[[*612]; McCrary, sec. 440, p. 373. On the illegality of the ballots, because they exhibited printed thereon the candidates' names for president and vice-president, they cited: Art. XII (amendment), Const. of U. S.; 1 Kent's Comm. (3d ed.), p. 293 (275).

McLamore & Campbell, also for appellant, on the proposition that the court erred in permitting the ballots to be counted as against the returns of election, under the circumstances showing that the ballot-boxes had been tampered with as referred to in the opinion, cited: Arts. 1317, 1702, R. S.; the opinion on former appeal of this case; McCrary on Elections, secs. 277, 288, 366; Hudson v. Solomon, 19 Kan., 186; Cooley on Const. Lim., p. 625; Howerton v. Holt, 23 Tex., 60, 61; T. & P. R. Co. v. Murphy, 46 Tex., 366, 367; and Heldt v. Webster, 60 Tex., 209.

Finley & Rose, for appellee, that the evidence was admissible to show that the ballots were not the genuine ballots of the voters, as deposited by them, cited: Jennett v. Owens, Galveston Term, 1885; People v. Thatcher, 55 N. Y., 525;14 Am. Rep., 320;People v. Pease, 27 N. Y., 45;Newton v. Newell, 26 Minn., 529;6 N. W. Rep., 346;Hudson v. Solomon, 19 Kans., 177.

That the charge of the court was correct, they cited: People v. Thatcher, 55 N. Y., 525;14 Am. Rep., 320;People v. Pease, 27 N. Y., 45;Newton v. Newell, 26 Minn., 529;6 N. W. Rep., 346;City of Galveston v. Morton, 58 Tex., 415;Merriwether v. Dixon, 28 Tex., 19.

That the unnecessary matter printed on the ballots did not invalidate them, they cited: McCrary on Elec., par. 403, 404, 405, and authorities cited; Kirk v. Rhoads, 46 Cal., 398; Texas General Laws 1879, p. 120; Druliner v. State, 29 Ind., 308; Napier v. Mahow, 35 Ind., 275; Wyman v. Leomon, 51 Cal., 273.

That the court committed no error in permitting voters to testify concerning their ballots, they cited: People v. Thatcher, 55 N. Y., 525;14 Am. Rep., 320;People v. Pease, 27 N. Y., 45;Newton v. Newell, 26 Minn., 529; Jennett v. Owens, Galveston Term, 1885; Hudson v. Solomon, 19 Kans., 177;McKinney v. O'Connor, 26 Tex., 5.

WILLIE, CHIEF JUSTICE.

Upon a former appeal taken in this case by the relator we held that he had the right, under the allegations of his pleadings, to controvert the returns of the election for sheriff of Galveston county, alleged by him to have been fraudulently made, and to show the true state of the vote by the ballots themselves. State ex rel. Jennett v. Owens, 63 Tex., 261. The court below having denied him this privilege, its judgment was reversed and the cause remanded; and a trial was had which resulted in a judgment for the relator. The issues upon which the parties went to the jury, so far as it is necessary to state them for the purposes of the present appeal, were briefly as follows: The relator rested his case upon his charges of fraud in the conduct and returns of the polls of the Eleventh, Twelfth and Fifth wards of the city of Galveston; the defendants, denying these allegations, charged errors and mistakes in the First, Second, Third, Fourth, Seventh, Eighth, Ninth and Tenth wards.

Each party alleged the difference between the returns and the true state of the ballot, showing the loss that he sustained in each of these wards by the improper count and return of the presiding officer.

The result of the trial was a verdict and judgment for the relator, from which judgment the defendant takes this appeal.

During the progress of the trial, the official returns of all the precincts of Galveston county were counted; and the ballot-boxes of the twelve precincts in the city of Galveston were opened, and the tickets found in them were also estimated, so far as the vote for sheriff was concerned.

According to the official returns, Owens was elected by forty votes; and, according to the ballots found in the city boxes, taken in connection with the official returns from the country precincts, he was elected by twenty-nine votes. It is clear, therefore, that the jury could not have found their verdict upon either of the above methods of ascertaining the ballots cast for the respective parties. They must have reached their verdict, under the evidence, by counting for Jennett the ballots of persons who testified that they had voted for Jennett, but that his name had been erased from their tickets, or they must have taken into their estimate the official returns of some of the precincts, and their own count of the ballots found in the other boxes.

It is claimed by the appellee's counsel that they pursued the latter course, and adopted the official returns of the Third, Sixth, Seventh and Twelfth wards of the city, and their own estimate by actual count of the ballots found in the other city boxes. This would give Jennett a majority of one hundred and thirty-nine votes, and the finding of the jury must be sustained, if sanctioned by the evidence and the charge of the court.

The sole ground upon which it is contended that the official returns of the Third, Sixth, Seventh and Twelfth wards must be corrected is, that the proof shows that they were tampered with between the time the votes were counted and the poll lists made up, and the time when they were offered in evidence. It is claimed that the ballots themselves must prevail as against the official returns in the Eleventh ward, because there was no proof, to the satisfaction of the jury, that there was any tampering so far as that box was concerned.

We consider the following principles well settled: 1. That the returns are prima facie evidence of the result of an election. 2. That in a proper case the ballot-boxes may be opened and the tickets counted to rebut the presumption in favor of the returns; and in case of a disagreement between the returns and the ballots, the latter must prevail as the best evidence of the will of voters. 3. That in order to allow the ballots to prevail as against the returns, it must appear that they have been preserved by the proper officers as required by law, and have not been exposed to the reach of unauthorized persons so as to afford a reasonable probability of having been changed or tampered with. Hudson v. Solomon, 19 Kans., 177;People v. Livingston, 79 N. Y., 279;State v. Owens, 63 Tex., 261.

Hence it was proper for the jury to estimate by the returns, when the proof showed that the boxes had been tampered with after the vote had been finally counted, and by the ballots when there was no satisfactory proof to this effect.

The proof as to tampering with the returns is in most respects substantially the same as to the Third, Sixth, Seventh and Twelfth boxes, which are those in which it is claimed the official returns were received as evidence by the jury. This proof is briefly as follows: The presiding officers stated that when the count was finished they tied tape around the boxes and sealed them with wax; when produced before the jury the seal was preserved but the tape was gone. They testified that they placed copies of the poll and tally lists in the boxes with the ballots, but when opened these lists were not to be found in the boxes. Some of these boxes were kept in the houses of these presiding officers between the time they were sealed up and the time they were delivered to the county clerk; some were left under beds, and one in a wardrobe during the absence from home of the officer. After coming to the hands of the clerk they were placed in one of the rooms of his office for a few days and then transferred to the vault for safe keeping. Whilst in the office they seem to have been protected by the presence of one of the deputies in the day-time, and at night by locks and fastenings to the doors and windows.

The clerk said they showed no signs of being tampered with whilst in this room of his office. He seems to have guarded them against interference whilst in the vault by keeping all the keys of the vault in the possession of himself and deputies, with the exception of one, which was for a short time kept by the janitor. When the boxes were opened there were found in some of them ickets from which the names of all the candidates for sheriff had been scratched, and some from which none of these names had been erased. The officers presiding over these boxes testified that either none or a smaller number of such tickets than appeared in the box were there when the ballots were counted. Some of the voters to whom these tickets were accredited on the poll list testified that they were not in the same condition as when deposited in the ballotbox by them. Other persons who...