The Idaho recorder. [volume] (Salmon City, Idaho) 1886-1927, 1921-10-21
all counted for contestant Off, BAT to 349.)

/ had this ballot marked No. 2O0. He was cor
robOrated to some extent by the other count
ing judges. Soon after the election one of the
/ counting judges, Mrs. Mulkey, stated in con-
versatiOn with the contestant that there were
six or eight votes counted for contestee which
on recount would be counted for contestant
The Judge, after hearing all of the evidence,
concluded that ne wanted to further examine
the ballots to see if they showed on their face
that they had been tempered with
if different colored or kinds of pencil had
been used in marking them, if any of them
seemed to have been changed after the
election, and if scratching for other candidates
had been done in the same way as in the case
in question here Off, 513 to SIS, 531), which
was done with the result that there was not
single ballot but what appeared to have been
marked at the same time and with the same
pencil; some were marked with indelible pen
Gil, others with ordinary pencil, but in each
case, every mark upon each ballot, respective
~, was made with apparently the same pencil,
and no erasures seemed to have been made by
rubbing out any mark with an eraser The
court had magnifying glass, and used it to
some extent. Counsel for the respective par
ties were on different sides of the trial Judge
when this examination was made, watching
1t closely. The circumstances, the appearance
OF the ballots, the fact that they were each
marked with the same pencil, (nO two pencils
appearing to have been used on any balot)
and the peculiar ballots testified to bv the
judges of election and found in the ballot box
all identify the ballots, corroborate the evil
dence OF the witness in the first instance, and
show the integrity of the ballots.
The burden shifted to the contestee to show
that they had been changed or tempered with.
There is not scintia of evidence in the case
TO show that they had been tempered with.
True, the counting judges testified that they
tailed them correctly and this was taken bv
the TRIAL Judge as authorizing him to hold that
the ballots themselves, the best evidence, the
controlling evidence, was of less weight than
the Official returns This conclusion is in
correct The ballots having been proven to
nave Deen locked IN the ballot box, delivered
to one Judge the key to the other Judge. and
the box to have remained in the same condi-
tlon all the time, was sufficient to admit the
oailots IN evidence, after which they were
ldeentlhed by the counting judges, and bv GER
taih peculiar ballots their integrity was be-
You'd question, although some one might have
entered Mr.. Dryers office, and have gone in
TO ms PACK rooom. and opened the box But
tne ballots themselves controverted the idea
I'll vi thelr having been changed in any respect.
The conclusion is irresistible. under the civ
that the ballots introduced in evi-
dence were the same ballots cast at the cleo
ton IN Depot Precinct, and in the same con-
dition they were when locked and placed in
the custody of Mr.. Dryer.
Anyone tampering with the ballots in favor
OF either party, could easily have made
cross after the name of the party in the
straight ballots-but this would have been
discovered IN some instances, by difference in
the pencils used
They are then, under the authorities. the
best and controlling evidence. It would vio-
late the established rules of evidence over
turn the will of the people of Lemhi county
as expressed at the election to hold that under
the evidence in this case the election returns
made by the officers of the election are to con-
troll and not the ballots themselves, tanta-
mount to saying that the election officers bv
design. mistake or otherwise could thwart
the will of the people and cause one man who
had not been elected to certain office to fiji
it when another had been rightfully elected.
8. Election laws are to be literally con-
strued in favor of the voter, and irregularities
IN voting ballot or its preservation after
wards, will not have the effect of invalidatinp
the ballot, unless so declared by the statute
especially where it relates to some act over
which the voter has no control
There is no evidence other than r1,mor 70
snow that any bets on the election were made
and the fifth assignment of error is well tax.