Wright v. Crase
| Citation | 115 S.W.2d 318,273 Ky. 76 |
| Parties | WRIGHT v. CRASE. |
| Decision Date | 11 February 1938 |
| Court | Kentucky Court of Appeals |
As Modified on Denial of Rehearing April 19, 1938.
Appeal from Circuit Court, Letcher County.
Petition by Dr. B. F. Wright for recount of ballots in county election, whereupon James M. Crase filed pleadings denying the allegations of the petition and challenging the integrity of certain of the ballots. From the judgment, petitioner appeals.
Judgment affirmed with directions to modify.
Burke & Sanders, of Pikeville, and John E. Campbell, of Hazard, for appellant.
A. F Childers, of Pikeville, H. C. Faulkner, of Hazard, and D. I Day, L. E. Harvie, and Stephens Combs, Jr., all of Whitesburg, for appellee.
MORRIS Commissioner.
Appellant was the Democratic candidate for county judge of Letcher county at the November, 1937, election, and appellee the Republican candidate. The election commissioners, after canvassing the returns, certified that appellant had received 5,291 votes and appellee 5,437.
By a petition, prepared and filed in conformity with section 1596a-12, Ky.Stats., appellant sought a recount of the ballots in all the 54 voting precincts of the county. Upon the filing of the petition the clerk of the court, and the court, took all steps required by the Statute, supra, and appellant executed the necessary bond, whereupon the court by order fixed November 22d as the day for the recounting; that order certified to the chief justice of this court that the regular judge was unable to preside, solely because he was to hold a regular term of his court in another county, on the date above mentioned. A special judge was duly appointed and commissioned, entering upon his duties on November 22d. The record shows the hearing consumed eight days of tedious labor, carefully performed.
Upon the appearance of the special judge, certain pleadings were filed denying the allegations of the petition, and challenging the integrity of the ballots, upon which latter question the court heard proof, adjudging that the ballots had been properly preserved. Appellee is contending the proof showed that there had not been such care of the ballots as justified the court in holding as he did. A review of the evidence here presented leads us to the conclusion that the court correctly decided this question.
Appellee has moved this court to strike the bill of exceptions, and to strike from the files 103 ballots not inclosed in the Neon precinct box, but later brought here by order of this court. This latter motion was based on the contention that their integrity was not properly preserved between the time the recount ended and the date they were brought to this court. Affidavits filed indicate otherwise, and an inspection of the 103 ballots shows that they are in the same condition as described by the court in his remarks. The first motion is based on the claim that the special judge neither signed the bill of exceptions, nor extended the time for signing and the bill was later signed by the regular judge. Upon consideration of the motions and arguments thereon, the motions are overruled.
Appellant challenges the findings of the court upon returns from the following precincts: Neon, No. 31; Kona, No. 35; Coyle's Branch, No. 53; West Jenkins, No. 26; Baker, No. 5; Colson, No. 3; and West Whitesburg, No. 17. At his instance the ballot boxes, paraphernalia, etc., used in the first 4 above-named precincts have been transferred to this court, as well as 103 ballots from Neon precinct, mentioned above. As to the other named precincts, neither boxes nor ballots have been brought here, hence we have nothing to examine. In regard to the ballots challenged in the 3 named precincts, because of defects appearing, we uphold the lower court's finding, on the ground that the ballots themselves constituted the sole evidence of any alleged irregularities. This proof not being before us, we conclude that the court correctly disposed of them.
In West Jenkins there were 230 votes cast in the county races. Thirty-one were not voted in the county judge's race, thus leaving 299 ballots to be considered, appellant receiving 120 and appellee 179. Of the 120 for appellant, 1 ballot not indorsed on the back by any officer was rejected, leaving appellant 119 votes. Of the 179 ballots cast for appellee, appellant objected to the counting of 7 ballots, because the name of the judge who signed was "B. H. Sexton," whereas on these 7 ballots the name was signed "H. B. Sexton." The court refused to expunge these 7 votes, holding that the signature as it appeared was a substantial compliance with the provisions of the Statute in respect of the signing by the officer. This left appellee's vote 179 and appellant's 119. We agree with the court's ruling, since it is not claimed that these questioned ballots were not in fact signed by B. H. Sexton, or by some one in his presence, and by his authority. We have inspected all the ballots cast in this precinct, and find that 13 of appellee's and 5 of appellant's ballots were signed in the same manner. If the claim of appellant should be upheld, and all these ballots be rejected, it would not materially change the result as reached by the canvassing board and the special judge.
In Coyle's Branch No. 53, there were 55 ballots cast in the county races, 47 for appellee and 4 for appellant. Appellant objected to the counting of any of the 47 votes for appellee because they bore the name of "Henry Lewis, Judge" on the back thereof, whereas his name was, "Henry Lewis, Jr.," as appeared on the registration sheet and on his ballot stub. The court, after inspection of the ballots, the stub book, and the registration sheet, overruled this objection. No other Henry Lewis showed on the registration list, and none other of the same, or similar name was shown to have participated in the election. We are of the opinion that the court correctly ruled on this contention, since the writing of the full name, omitting the designation "Jr." Was a substantial compliance with the Statute, and it is not contended that Henry Lewis, Jr., the officer, did not indorse the ballots.
In Kona precinct No. 35, 316 ballots had been cast in the county races; of this number appellee received 160 and appellant 137. Five of the ballots were rejected, 1 because improperly signed; 2 because signed only by the election clerk; and 2 not signed at all. Three of these had been cast for appellant and 2 for appellee. We...
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