Tebbe v. Smith

Citations

• 108 Cal. 101
• 41 P. 454
• 1895 Cal. LEXIS 829

Syllabus

<p>Elections—Contest—Ballots, when Best Evidence.—In an election contest the ballots are the best evidence of the manner in which the electors have voted only when their integrity can be satisfactorily established.</p> <p>Prima Facie Correctness of Official Canvass—Burden of Proof.— One who relies upon overcoming the prima facie correctness of the official canvass, by a resort to the ballots, must first show that the ballots, as presented to the court, are intact and genuine, and, where a mode of preservation is enjoined by the statute, proof must be made of a substantial compliance with the requirements of that mode.</p> <p>Id.—Directory Requirements — Preservation of Ballots.—The requirements of the statute as to the mode of preservation of ballots are construed as directory merely, the object looked to being the preservation inviolate of the ballots, and, if this is established, they cannot be rejected merely because the precise mode of reaching it has not been followed.</p> <p>Id.—Shifting of Burden of Proof.— When a substantial compliance with the provisions of the statute has been shown, the burden of proof shifts to the person contesting the use of the ballots' to establish that they have in fact been tampered with, or that they have been exposed under such circumstances that a violation of them might have taken place, but the law cannot guard against a mere possibility, and the ballots cannot be rejected as evidence upon a mere naked showing that it was possible for one to have molested them.</p> <p>Id.—Question of Fact.—It is a matter to be determined in the first instance by the jury or trial judge as to whether the ballots were tampered with or improperly exposed, and when the ballots have been admitted, after clear and satisfactory evidence of their integrity, the appellate court will not disturb the ruling, when not well satisfied that the evidence does not warrant it.</p> <p>Id.—Marking of Ballots—Mandatory Statute—Liberal Construction—Placing Cross af