
    [No. 3,522.]
    THE PEOPLE ex rel. F. A. FREUND v. CHARLES BURDEN.
    When Recount oe Ballots by Supervisors is not Best Evidence.— If there is evidence tending to show that the ballots cast at an election are not sealed up after being counted by the Board of Canvassers, or that the packages of ballots have been opened and changed after they were received by the Clerk, the ballots, on a recount by the Board of Supervisors, are not the best evidence, but the Court may adopt the result arrived at by the Board of Canvassers in determining who is elected.
    Appeal from the District Court of the Fifth Judicial District, County of Tuolumne.
    The relator filed a petition, in which he alleged that at the general election in 1869 he had received a majority of two votes, out of one thousand seven hundred and fifty-eight, for the office of Coroner, as shown by a recount of the ballots, and that, notwithstanding this, the Board of Supervisors, acting as a Board of Canvassers, had refused to give him a certificate of election. He asked that judgment be rendered declaring him duly elected Coroner. The respondent denied the allegations of the petitioner specifically, and alleged that the ballots cast at the precincts of Sonora and Columbia were not returned sealed as required by law; that after the ballots at those precincts were cast, counted by the officers, and the result certified to, a large number of the ballots were changed in favor of the relator; that the ballots presented to the Board of Canvassers were not the ballots as cast; that the Board had been governed by the returns of the officers of the election as to the two precincts named, from which it appeared that the respondent was elected by a majority of six votes. The respondent had judgment, and the relator appealed.
    
      J. JD. Redmond,
    
    for the Appellant, argued that the ballots themselves were the best evidence of the votes cast, and cited The People v. Holden, 28 Cal. 128.
    
      Edwin A. Rodgers, for the Respondent,
    admitted the authority of the case cited, but contended that it did not hold good where the ballots are tainted with the suspicion of fraud. He argued that the evidence shows that the ballots were fraudulently tampered with; that in such case, the Board of Canvassers properly rejected them, and relied upon the return of the officers of the election; and that the Court in giving judgment for the respondent must have found that there was fraud.
   By the Court:

The Court below found that the respondent received a majority of the votes cast for the office of Coroner, and was, therefore, elected. There was some evidence tending to show that some of the packages of ballots had been opened and changed to some extent after they were received by the County-Clerk. It also appeared that the ballots from one of the precincts were not sealed up as required by law. In view of these facts we cannot say that the Court erred in its finding.

Judgment affirmed.  