Vansant v. McPherson

• Decision Date: 01 October 1913
• Parties: VANSANT v. McPHERSON.
• Court: Kentucky Court of Appeals

159 S.W. 630

155 Ky. 34

VANSANT v. McPHERSON.

Court of Appeals of Kentucky.

October 1, 1913

Appeal from Circuit Court, Metcalfe County.

Primary election contest by U. W. McPherson and another against Henry S. Vansant. Judgment in favor of contestant McPherson, and contestee appeals. Reversed.

Allen Sandidge and Porter & Sandidge, all of Glasgow, for appellant.

Basil Richardson and Baird & Richardson, all of Glasgow, for appellee.

TURNER J.

Appellant and appellee, together with W. D. Albright, were candidates at the August primary for the Republican nomination for representative in the legislative district composed of Metcalfe and Monroe counties. The complete returns showed that Albright received 553 votes, McPherson 714, and Vansant 722, and the certificate of election was thereupon issued to Vansant. McPherson and Albright each instituted a contest against appellant alleging the same ground of contest, viz That the polls had been kept open in precinct No. 6 of Monroe county until 5:30 p. m. on election day, and that there had been permitted to vote in that precinct, after the regular hour of closing, numerous voters, whereby Vansant had wrongfully received in that precinct 65 votes and had thereby wrongfully been awarded the certificate of nomination. The vote returned by the election officers in that precinct was for Albright 43, for McPherson 32, and for Vansant 65. The lower court adjudged that the precinct could not be considered in determining the result, and that McPherson was therefore nominated over Vansant by a plurality of 25, and Vansant appeals.

The evidence as to what time the polls closed is very unsatisfactory and uncertain; the recollection of witnesses as to what time has elapsed between two given occurrences is from its nature very uncertain, especially when measured in minutes, but is particularly uncertain in this case from the further fact that it appears throughout the record that some of the parties carried sun time, some of them standard time and some tried to keep between the two. As sun time is 22 minutes faster than railroad time, it can be readily seen what confusion might arise under such conditions.

One witness for appellee says, "It was near 5" when the polls closed, but that he had no watch; another that it was "something after 5," and that he tried to keep sun time; another that the polls closed "about 5, I expect," but did not look at his watch, and that his watch was closer to sun time than to railroad time; another that they closed a "few minutes after 5," and that he kept sun time or almanac time; another that it was "35 or 40 minutes after 4," and that he tried to keep standard time but did not know whether it was correct or not; another that they closed "right at 5," and as to the kind of time said, "Well, we have sun time there *** sometimes standard time."

For the appellant, Everett Adams says he voted "3 or 4 minutes before 4 o'clock," and that he examined Jim Barber's time; the stub book which is before us shows that Everett Adams voted the 179th ballot cast in that precinct, and that only 189 ballots were cast. An affidavit for continuance filed by appellant was by agreement read as the depositions of Will Slate and Haskell Fultz, and it is to the effect that they each voted in the primary and voted before 4 o'clock; and the stub book shows that they respectively cast ballots 177 and 178, the two immediately preceding that of Everett Adams. The affidavit also stated that appellant could prove by James Barber that he voted 7 minutes before 4 o'clock, and the stub book shows that he cast ballot 176; but the court refused to permit it to read it as the deposition of Barber, because due diligence had not been shown to procure his attendance at the trial. Lon Ford stated that he was one of the election officers; that he had no watch; and that he did not know exactly what time it was except what those in the election room who did have watches said about it; the stub book shows that he cast ballot 188. Appellee proved in rebuttal by two witnesses that Lon Ford had told them that the polls closed at least 20 minutes after 4.

From these contradictory and confusing statements, considering that almost every witness seemed to have had a different time, and that there is 22 minutes difference between sun time and standard time, and that the votes were being cast rapidly as testified by all witnesses, we have concluded that the most satisfactory evidence as to what time the polls closed is to be gathered from the statements of Adams, Slate and Fultz. The statements of Slate and Fultz, who cast ballots 177 and 178, strongly fortify the statement of Adams, who cast ballot 179, when he says he voted "3 or 4 minutes before 4 o'clock"; and, that being true, only 10 ballots could have been cast in the Republican primary after 4 o'clock; and, as the votes were being cast rapidly, we are satisfied that...