Scalf v. Pursifull

• Decision Date: 29 September 1933
• Citation: 250 Ky. 447
• Parties: Scalf v. Pursifull.
• Court: United States State Supreme Court — District of Kentucky

250 Ky. 447

Scalf v. Pursifull.

Court of Appeals of Kentucky.

Decided September 29, 1933.

1. Elections. — Candidate for office is not chargeable for bribing acts not performed personally and done without his knowledge and consent, absent statute thereon.

2. Elections. — Every election contest case must be determined on its own facts.

3. Elections. — Evidence held insufficient to establish that successful candidate bribed voters to vote for him in primary election for office of county court clerk, either personally or through others with his knowledge and consent (Ky. Stats., sec. 1565b-1 et seq.).

Appeal from Bell Circuit Court.

E.N. INGRAM, J.S. GOLDEN and H.H. OWENS for appellant.

N.R. PATTERSON for appellee.

OPINION OF THE COURT BY JUDGE THOMAS.

Affirming.

The appellant and contestant below, William D. Scalf, and the appellee and contestee below, John M. Pursifull, were rival candidates for the Republican nomination for the office of county court clerk of Bell county in the August primary election, 1933. The canvass of the votes cast for them by the county board of election commissioners showed that contestee received 3,450 and the contestant 2,368 votes, thus nominating the contestee by a majority of 1,082 votes. In due time the contestant instituted this contest proceeding in the Bell circuit court, and alleged two grounds therefor: First, irregularities in the special registration for the city of Middlesboro in Bell county, held and conducted as provided by statute some short while preceding the primary election, and at which some 900 votes were registered, some originally and some of them transferred to other voting precincts because of removal. It was contended that the alleged irregularities and defalcations with reference to that registration rendered it void and that the votes so registered and which it was alleged were all cast for contestant were illegal. The second ground of contest relied on was a charge that contestee violated the provisions of the Corrupt Practice Act (Ky. Stats. sec. 1565b-1 et seq.) by bribing electors to vote for him either personally, or through others with his knowledge and consent.

Both grounds were controverted in the answer filed by contestee; but at the trial no evidence was offered to support the first one and it was abandoned. However, testimony was taken in support of the second one followed by counter testimony introduced by contestee, and upon final submission the court dismissed the action, thereby adjudging that contestee was not guilty of the derelictions charged against him and was entitled to the nomination. To reverse that judgment, contestant prosecutes this appeal.

The object and purpose of the Legislature in enacting the Corrupt Practice Act was the commendable one of purifying elections so as to obtain an honest expression of the voters participating in them, and to free them from the corrupting influence of bribery and other impure practices, which, if persisted in, will inevitably prove to be the deadly cancer that will eventually destroy our republican form of government. Hence, it behooves the courts who are called upon to administer that act, and especially its denunciations and penalties concerning bribery, to do so unhesitatingly in a manner to carry out the purpose of the Legislature in its commendable action in making the statute the law of the land; since, as said by us in the case of Asher v. Broughton 231 Ky. 165, 21 S.W. (2d) 260, and repeated in the case of Howard v. Cockrell, 231 Ky. 278, 21 S.W. (2d) 455, 457: "No man should enjoy or profit by that which he has obtained through the violation of laws enacted to protect elections from the evil influence exerted by the bribe giver and the bribe taker. The man who bribes a voter, or suffers it to be done with his knowledge and in his interest, is not a fit person to hold public office. The law has so declared, and the sooner such persons and the public realize that such laws are to be fearlessly and sternly enforced, the sooner will bribery and corruption be numbered among the things that once were."

The difficulty with courts in their effort to follow the indicated course is encountered when it comes to the determination of the facts which, in the vast majority of cases, must be done upon the consideration of much contradictory testimony, as viewed in the light of the two propositions (also encountered in practically all the cases), first, that the one charged with such violations will never confess it, and, second, that the witnesses testifying to them are most generally the alleged purchased voters, who are frequently impeached for morality and for truth and veracity; but if not so, then the attitude they occupy as bribed voters is itself an impeachment of their integrity. Besides, under the terms of the statute the bribing of one voter is sufficient to deprive the briber of a nomination or an election, and one who will sell his vote will most generally also sell his testimony, and which conditions render it comparatively easy for a contestant to purchase the testimony of such a witness, or witnesses, from various precincts, or various witnesses of like character from the same precinct. It is seldom that the individual transaction of bribing the voter is fortified by the testimony of additional witnesses, but if it should be otherwise, it is generally done by other voters equally guilty of selling their votes. Moreover, the rule is firmly established in this and other jurisdictions that in the absence of a statutory provision, otherwise prescribing, a candidate for office is not chargeable with such violations as are contained in our statute for bribing acts that he did not perform personally and which were done without his knowledge and consent. In a large per cent. of contest cases the bribery of voters may be thoroughly established by uncontradicted testimony, but which was done by friends of the candidate and entirely without his knowledge or consent.

We have had a number of cases before us involving all of these situations and producing such difficulties, and in which we have adopted the rule, which we hereby expressly repeat and approve, that each case must be determined on its own facts and from the picture presented by the particular record. In determining whether or not bribery alleged to have been committed by the candidate in person when supported by testimony of a witness or witnesses is established, though contradicted by the candidate, the issue necessarily has to be determined from the circumstances as they are detailed so as to ascertain which set of witnesses, in the light of their environment, are telling the truth. Therefore, the personal interest of the candidate will be taken into consideration, as well as the character of the witnesses testifying against him, plus the convincing force of their testimony, and other facts and circumstances affecting its credibility. The same rule applies in determining the issue as to whether the candidate possessed knowledge of well-established bribery committed by his friends on election day, including whether or not he was a party to any prior arrangement or understanding whereby such illegal influences should be employed in his behalf on election day. Necessarily in arriving at the facts, in the light of the considerations mentioned, a simple denial by the candidate of bribery committed by himself, or of his knowledge of that committed by others in his behalf, is not conclusive;...