The Idaho recorder. [volume] (Salmon City, Idaho) 1886-1927, 1921-10-21

committed two crimes, one burglary, the
other, the crime of tampering with election
ballots (section 81O4, ETC., Com. Stats.)
"In other words, in the absence of any
evidence on the part of the defendant
showing that the ballots in question were
mutated subsequent to their being de-
posted in the ballot box, we are bound to
presume that they were in the same con-
dition when produced on the trial from
the proper office and by the proper officer
in which they were deposited in the bal
lot-box. Any subsequent alteration or
mutilation by any one entrusted by law
with their custody would be a public
crime of great enormity Woods Digest,
p 1856, sec. 1867 and the commission of
crime cannot be presumed. (The United
States v. Amedy II Wheaton, 4O8) If
they were mutated while in the clerks
office it was the duty of the defendant to
make proof of that fact. Not having
been in the custody of the relator but in
that of the proper functionary, he was
not called upon to explain when or how
the name of the defendant was torn off.
The presumption, as we have already
seen, was that his name was torn off by
the voters themselves. Upon this pre-
sumption the relator could rely, and the
labor of overthrowing it rested upon the
defendant, who made no effort in that d.
rectiOn"
The quotation above is appropos of the in
slant case, and we consider it as decisive of
the crux of the case 1t is in line with the best
of authority, the weight of authority. Mere
probability, or opportunity to tamper with
ballots do not authorize the presumption that
a crime has been committed, the burden of
showing the tampering being upon the contes-
tee who must prove it, or abide by the ballots
themselves, the best and controlling evidence.
We insist upon each assignment Of error,
and upon each point we have endeavored to
make although time and space forbids discus
sing each one separately. No bad motive is
attributed to any one. Mistakes were made
IN counting the ballots; they were natural,
easily made, and the two women judges who
saw the count, who endeavored to watch il.
could not discover all mistakes made. It would
be physical impossibility for woman to sit
beside man who is reading one of our COM
phcated ballots from early morning until into
the next morning, and know that he had ac-
curately read each name marked with cross
The evidence in this case illustrates this point
with much force. For instance, j. F. Melvin
resumed that ne was present on two occasions
when the final vote was being counted public
~, IN all about twenty minutes and that six
mistakes were mcde during that time bv A.
derson calling a straight republican vote
winch had cross after the name of contest
ant, and one OF the ballots was about to he
dropped into the ballot box by Mrs. Mulkev
when the witnesses called her attention to the
error and she opened it and said it was an
error and it was then corrected eff. SIG to
o2S). This evidence was uncontradicted. al
though Mrs. Mulkey f. 53O) testified that she
dld not remember the matter If six mistakes
could be made by Anderson in twenty min.
utes and one of them get by the ballot being
about to be dropped in the ballot box. how
many such mistakes could occur from
clock A. M one day to about A. M. the next
morning, period of twenty hours, is matter
OF calculation. These things show the wisdom
OF accepting the ballots as the best and con-
trolling evidence
we apologize for the length of this brief
Many questions, both of law and fact. not
nereln reviewed or discussed, arise on the
record here. We must content ourselves hv
relying upon your Honors to examine with
care the record and the ballots of Depot nre.
,nct and the authorities, hoping. at the oral
argument. to be able to discuss other points
ana questions in the case, none of which are
waved; The case is important. 1t involves
The rights of the voters to have their viii &c
expressed by their ballots, enforced and 20.
'pected, and the correlative question az 70
whether their ballots are to be overthrown bv