Ward v. Salyer
| Decision Date | 17 May 1940 |
| Citation | 283 Ky. 294 |
| Parties | Ward v. Salyer. |
| Court | United States State Supreme Court — District of Kentucky |
Appeal from Leslie Circuit Court.
Scott E. Duff, C.A. Noble, W.O. Miller and W.A. Stanfill for appellant.
T.E. Moore, Jr., R.T. Moore and A.T.W. Manning for appellee.
Before John Noland, Special Judge.
Affirming.
In the 1939 November election, the appellant was the Republican nominee and the appellee the Democratic nominee for the office of circuit judge of the thirty-third judicial district, composed of Leslie and Perry counties. Appellee carried Perry county by 398 votes while appellant carried Leslie by 811, which elected him by 413 votes. Within the statutory period appellee instituted this action to contest appellant's election on two grounds; (1) Appellant had violated the Corrupt Practice Act, Sec. 1565b-1 et seq., Ky. Stats., by bribing voters with money, liquor, official favors, and by intimidating them; (2) a conspiracy was entered into between appellant and his supporters, whereby they tampered with and altered the ballots in Leslie county; that the ballot boxes were not properly locked as required by Sec. 1468, and were not guarded as required by Sec. 1482, Ky. Stats. Appellee asks that the Leslie county vote be thrown out and he be declared elected; or if that be not done, it be adjudged there is a vacancy in the office of circuit judge in the district because of appellant's violation of the Corrupt Practice Act. Other issues were raised by the pleadings but little proof was taken thereon and as they were abandoned in the briefs, we will not refer to them.
The record presents no question of procedure or practice and the case is solely one of fact. Hon. John Noland was designated as special judge to try the case and on appellant's motion, and over appellee's vigorous objections, the evidence was heard orally before him, being reported by the official stenographer, and is here by virtue of a bill of exceptions. Judge Noland, after hearing the testimony of 194 witnesses, rendered judgment that the evidence failed to show any changes or alterations were made in the ballots and dismissed that ground of the contest, but that the appellant had violated the Corrupt Practice Act in securing his election and was not entitled to the office, which was adjudged to be vacant. Appellant prosecutes an appeal and appellee a cross-appeal from that judgment.
The evidence relates to seven instances wherein appellant is charged with bribing voters himself or furnishing money to others to be used for that purpose; to four instances charging the use of whiskey by others with his knowledge; to four instances of alleged intimidation by him; to five instances charging him with promising to grant judicial favors in return for political support. As we have concluded appellant violated the Corrupt Practice Act in bribing Jay Feltner and Elim Williams, we will forego a discussion of the other instances referred to in the evidence and not unnecessarily prolong this opinion, since one violation of the Act is sufficient to deprive one of the office to which he has been elected. Combs v. Brock, 240 Ky. 269, 42 S.W. (2d) 323; Dyche v. Scoville, 270 Ky. 196, 109 S.W. (2d) 581; Scalf v. Pursifull, 250 Ky. 447, 63 S.W. (2d) 504.
Sophia Sizemore testified that on election day in the Hyden court-house she saw appellant in conversation with Jay Feltner, who told Jay to go see Curt Duff (the sheriff of the county and one of appellant's staunch supporters). Jay then went into the sheriff's office and she heard Duff say to him, Jay was put on the stand by appellee and testified appellant asked him if he were going to vote for him, and he said, "Yes, sir". When asked if appellant promised to pay him $1 for "his day", his reply was, "I couldn't remember". He admitted he knew Curt Duff and that he was in his office on election day. When asked if he got any money from Curt that day he answered, "I couldn't state that `plime blank' now since I thought the matter over". Asked if he had not made an affidavit that appellant agreed to pay him $1 for "that day's work", and if Duff had not paid him the money in the sheriff's office, he replied that he had made such an affidavit. The next question, .
In Scalf v. Pursifull, 250 Ky. 447, 63 S.W. (2d) 504, comment was made as to the difficulty of correctly appraising such testimony as now confronts us and it was pointed out that each such case stands on its own legs. A citizen who sells his vote occupies a low place in society and oftentimes is not averse to selling his testimony. It is to be expected that the giver of the bribe, who is usually more affluent and occupies a higher social position than his victim, will deny it; and if it becomes expedient to do so, will buy the testimony of the witness with no more hesitancy than he purchased his suffrage. In weighing evidence in election contests where bribery is the issue, courts must consider the interest of the person who is charged with bribery, the facts and circumstances surrounding each alleged participant, the character of the witnesses, their demeanor on the witness stand and the convincing force of their testimony in the light of the surroundings. It is manifest this can best be done by the trial judge who is on the ground, perhaps knows the parties and witnesses, and has the great advantage of meeting them face to face while they are on the witness stand. He has the opportunity to observe whether beads of perspiration break out on the brow of the witness, their facial expressions, whether they swallow when there is nothing to swallow, or whether they yawn while testifying,...
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Williams v. Commonwealth
...et seq., whereby he spent money for the purchase of votes for himself in the election, and we held in the case of Ward v. Salyer, 283 Ky. 294, 140 S.W. (2d) 1016, that the testimony heard at the trial of the contest established that ground, and as a consequence there was no valid election h......