¶1In this case I wish only to state my non-concurrence in that part of the opinion which holds that the ballots were improperly admitted in evidence. By the record it is disclosed that there was a contest filed over the office of mayor and the ballot boxes opened in the trial of that case. This the statute specifically authorizes to be done. The statute (art. 3028) only provides for the burning of the ballots after twelve months, in case nocontest is instituted. In *440 this case we know a contest was instituted, therefore the clerk would not be authorized to destroy the ballots during the pendency of that contest. And if in the trial of the contested election case the ballot boxes were opened, and by the ballots it was made manifest to the trial judge that a crime had been committed by someone, we think it his duty, as he apparently did in this instance, to have the evidence preserved to be used in a prosecution of whoever may have had a guilty participancy in the wrongful calling of the ballots and certifying to an improper return. The evidence (the ballots) having come into his possession in a legal way, the ballot box having been opened in the trial of the contested election case, the veil of the secrecyof the ballot having already been legally torn aside, it was not improper to use the ballots in the trial of this case. We agree that if no contest had been instituted and the ballot box opened on the trial of that cause, the judge would have no authority to have had them opened on this trial. But no such question is before us, but a case where the ballot box had been opened under the specific authority and direction of the law, and it having been done legally, it was legitimate and proper to make use of them in the trial of this case.
75 Tex. Crim. 434
171 S.W 715
Beach v. State
Court of Criminal Appeals of Texas
Decided December 2, 1914
Court of Criminal Appeals of Texas · decided 1914-12-02
<p>1.—Election Frauds—False Canvass—Indictment.</p> <p>Where, upon trial of wilfully making a false canvass of the votes cast at a city election for mayor, the indictment failed to allege the names of the voters, so falsely called, or to allege that their names were unknown, the same was fatally defective.</p> <p>3.—Same—Evidence—Ballot Box—Names of Voters.</p> <p>Upon trial of unlawfully and wilfully making a false canvass of the votes cast at a city election for mayor, it -was reversible error to introduce in evidence and open the ballot box containing the names of the voters at the election mentioned in the indictment. Harper, Judge, dissenting. Prendergast, Presiding Judge, expressing no opinion.</p> <p>3. —Same—Case Stated—Ballot Box—Election Contest.</p> <p>Where, upon trial of unlawfully and wilfully making a false canvass of the votes cast at a city election for mayor, it was inferable from the record that there had been a contest over the offices prior to the time of the indictment, and it appeared that the ballots had not been destroyed, but had been passed from hand to hand and the ballot box had been locked in the death cell of the county jail, and it was from this receptacle that the ballot box was brought and opened on defendant’s trial and introduced in evidence. Held, that this was not an election contest, and the ballots could not be introduced in evidence on the instant trial. Following State v. Taylor, 119 S. W. Rep., 373, and other cases. Harper, Judge, dissenting. Prendergast, Presiding Judge, expressing no opinion.</p> <p>4. —Same—Witnesses—Accomplices—Conversation.</p> <p>See opinion calling attention to fact that the judges of the election and other officers, who assisted defendant in holding the election, were used as witnesses and testified to conversations had among themselves in regard to the manner of defendant’s calling the names of the ballots for the tabulating clerk, by which they placed themselves in the attitude of accomplices, etc.</p>
Cited by 1 later decisions — most recently February 1966
Good law ✅— No negative treatment on recordhow we know
Decided 1914-12-02
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