Stokely v. Burke

• Decision Date: 10 October 1914
• Citation: 169 S.W. 763,130 Tenn. 219
• Parties: STOKELY v. BURKE.
• Court: Tennessee Supreme Court

169 S.W. 763

130 Tenn. 219

STOKELY v. BURKE.

Supreme Court of Tennessee.

October 10, 1914

Appeal from Circuit Court, Cocke County; G. McHenderson, Judge.

Election contest by Murry Stokely against D. M. Burke. A county court judgment in favor of contestant was reversed in the circuit court, and contestant appeals. Affirmed.

BUCHANAN J.

This is an election contest. The parties were rival candidates for the office of justice of the peace of the Sixth civil district of Cocke county, at the regular election held therein, on the 1st day of August, 1912. No point is made as to the eligibility of either candidate; the sole question is Who was elected? The returns made by those charged by the statutes with the duty of holding the election showed that Burke received 210 votes, that Stokely received 209 votes and that Burke was elected. Wherefore Stokely, conceiving himself to be thereby aggrieved, set on foot this suit seeking to go behind the election returns, and by judicial inquiry and sentence to establish their falsity and his election and his opponent's defeat. Of such a suit, the county court is the one of first instance (sections 1308 and 1317, Shan. Code), and there this suit was instituted, and proceeded to judgment in favor of contestant Stokely, from which Burke, contestee, appealed to the circuit court of the county, where judgment went in favor of Burke, and Stokely appealed to this court, and here seeks a reversal of the judgment of the circuit court. His assignments of error raise a single question, which is determinative of the controversy. That question is: Was the circuit court in error in sustaining an objection made by the contestee Burke on the trial of the cause to the competency as evidence of certain ballots, claimed by contestant to be those cast by the voters at the election aforesaid for each of the parties to this suit?

What occurred on the trial in relation to the above is shown by the following recital from the bill of exceptions:

"The contestant at this juncture offered in evidence the ballots, claimed by contestant to be the original ballots cast in said election, as produced by Mr. Holt, insisting that the ballots, under the facts shown in this case as to their custody, were the best evidence of the result of the election. The contestee, by his counsel, excepted to the introduction of the ballots offered as evidence, on the grounds that they had not been sealed and properly kept from the time they were counted by the election officers until offered in evidence upon this trial, and kept as required by law, and not properly identified as the original ballots voted and returned by the officers of election, and upon the further ground that, from the testimony offered by contestant, there had been opportunity to change or tamper with these ballots, or get them out or misplace them, and that they were therefore inadmissible as against the returns of the election officers. The court sustained the contestee's exception, and excluded the ballots, and declined to admit them as evidence in this case, to which action of the court contestant excepted, and requested the court to cause the ballots to be sealed up in his presence and under his direction, and that they be sent up to the Supreme Court as a part of the record in this cause. This request the court granted, and the ballots were accordingly sealed under the direction of the court, and were ordered by him to be sent up as a part of the record of this case. Said ballots are hereby made a part of this bill of exceptions, and will be sent up by the clerk, sealed and identified and indorsed as follows: 'Ballots offered by contestant as original ballots cast in the Sixth civil district of Cocke county, Tennessee, at the regular August election held in 1912, on the first day of August. The clerk will send these ballots up as a part of the record of this cause, and they are hereby made a part of the bill of exceptions.'

[Signed] G. McHenderson, Judge."

On the same subject is the following excerpt from the judgment of the court:

"The court doth further find that the ballots cast in the election, over which this contest arises, were honestly and fairly counted by the election officers holding said election, and that there was no actual fraud charged against them, nor was there any proof offered to show any actual or attempted fraud on the part of said election officers, and that they honestly declared the result of said election, showing that the contestant, Murry Stokely, received in said election 209 votes and the defendant or contestee, D. M. Burke, received 210 votes in said election, a majority of one vote in favor of said Burke.

(3) The defendant on the trial of this cause having objected to the court's considering or counting the ballots claimed to have been cast: (1) Because no actual fraud was charged against the officers holding said election, nor was any proof offered to show any fraud against said election officers in holding said election, nor in counting the ballots and...