
    WRIGHT v. MARQUIS.
    (No. 7017.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 7, 1923.)
    1. Elections <&wkey;293(2) — Declarations of elector permissible to show intention to make home outside county.
    Declarations by a voter that he was going to remodel a house in another county, had -already furnished it, and would make it his home, were permissible to show intention to make the other county his permanent home making his vote illegal.
    2. Elections <&wkey;7l — 'Voter held domiciled outside precinct.
    Where the only home to which a voter could go was that of his wife’s father in another county where the wife made her home, and he had no fixed intention to build and establish a home in the county of an election, his vote in an election was illegal and properly deducted.
    3. Elections <&wkey;!8l— Ballot with printed name of one candidate not erased and1 name of another written not counted for either.
    In an election for but one person for commissioner, where underneath the printed name of the candidate a voter wrote the name of another, but the name of the candidate was not erased, under Vernon's Sayles’ Ann. Civ. St. 1914, art. 3012, such ballot could not be counted for either.
    4. Elections <&wkey;I80(6)— Misspelt written name of candidate held not to invalidate ballot.
    Where there were but two candidates for the office of commissioner of a precinct, the writing of a candidate’s name as “Maruuis” held to be indicative of the voter’s will to vote for “Marquis,” and the ballot was properly counted for him.
    5. Elections <&wkey;180(1) — Legal ballot given effect if voter’s will ascertained therefrom.
    If the will and desire of a voter can be ascertained from the ballot, and no law is infracted, the ballot should be given effect.
    6. Elections @=>227 (9) — Ballot of illiterate voter improperly counted when statute not complied with.
    Where Rev: St. art. 3003, relative to. assistance to illiterate voters, was not complied with, the ballot could not be counted.
    <&=»For other cases see same topic and KET-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, McMullen County; T. M. Cox, Judge.
    Suit by A. R. Marquis against C. B. Wright. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Dougherty, Dougherty & Tarlton, of Bee-ville, and Frank H. Burmeister and R. R. Smith, both of Jourdanton, for appellant
    H. S. Bonham and W. G. Gayle, both of Beevdlle, for appellee.
   FLY, C. J.

This is a suit contesting the election for commissioner of precinct No. 4, in McMullen county, instituted by appellee against appellant. The cause was tried before the court and judgment, rendered adjudging that appellee is entitled to the office.

The evidence showed that at the general election held on November 7, 1922, appellant was the Democratic candidate for the office of commissioner' of precinct No. 4, in McMul-len county, and his name as such candidate was printed on the ballot. The name of ap-pellee did not appear on the official .ballot. According to the official returns of the election, appellant received 24 votes and appellee 20 votes. The election was contested on the ground that Julius Glau and wife, Mrs. Ellen Pace, Avery Martin, Lionitis Muniez, John Martin, and Antonio Hasette had cast illegal votes for appellant. The court found that the votes of Julius Glau and wife were illegal because they were not residents of McMullen county; that the votes of Ellen Pace and Avery Martin were illegal because they were not residents of McMullen county. The court also held that a vote cast for A. R. Markuis by J. M. Whitley was intended to be a vote for A. R. Marquis, and should have been counted for him; that the vote of Mrs. Mae Hoegemeyer, who wrote the name of A. R. Marquis in the proper place on the ballot but did not scratch the printed name of appellant, should have been counted for appellee; that the vote of F. M. Galloway, who scratched the name of appellant and wrote “A. R. Mar-uuis” in the proper place, should have been counted for appellee. The conclusion of the court, embodied in the judgment, was that appellant received only 20 legal votes and appellee 22 votes, and the latter was declared the legally elected commissioner of .precinct No. 4, McMullen county, Tex. The effect of the conclusions of the trial judge was to deduct the votes of Glau and wife, and Ellen Pace and Avery Martin, from the votes counted for appellant, and to add the two votes of J. M. Whitley and Mae Hoegemeyer to the votes that should be counted for appellee.

There is sufficient evidence to sustain the finding of the court that the Glaus had abandoned McMullen county and had made Bexar county their place of residence. In numerous conversations with different witnesses Julius Glau said that he had bought a home at San Jose, in Bexar county, and at least one witness, Henry Caron, swore that Glau had told him in 1921 that he had bought a house, and “I am going to remodel it — it is already furnished — and make it my home." He gave as his reason for this step that his wife did not like to live in Lomo Alto “because there were no conveniences out there.” Lomo Alto is the place in McMullen county where Glau owned a ranch. He did buy the home in San Jose, and there was evidence to substantiate his declaration to W. D. Marquis that “he had bought a good home up there and was going to make it his home the balance of his days; that he was getting- too old to work on the farm.” The declarations made by Glau to a number of witnesses were permissible as evidence tending to show that he intended to make San Jose his permanent home. The same applied with equal force to Mrs. Glau.

The court found that Mrs. Ellen Pace was not a resident of precinct, No. 4, McMullen county, and consequently not entitled to vote in that precinct and county. We think there is evidence to sustain the ruling of the court. Mrs. Pace was shown by the evidence to be a peregrinator having no fixed place of abode, but living more in Atascosa than in McMullen county. We sustain the action of the court as to this voter.

Avery Martin voted, as did the Glaus and Mrs. Pace, for appellant and the court rejected his vote on the ground that his residence was not in MleMullen county. The facts are that Martin, ■ who had been reared in McMullen county, in 1920 married a woman who had lived all her life in San Antonio, and continued to live there after she married Martin. He swore that for the first year and a half of his married life he was in business in San Antonio. He had no home in McMullen county, although he claimed to be a partner with his brother and that they had 30,000 acres of land leased for five years in McMullen county and that he had always paid his poll tax in that county. Martin admitted that he would have remained in business in San Antonio, if it had been remunerative. Pie would go from San Antonio to Tilden in McMullen co.unty, and from there to Jourdanton, in Atascosa county, and then repeat the rounds. He had no house of his own, and the only home to which he could go was the home of his father-in-law in San Antonio, where his wife made her home. He did not intend to build a home in McMullen county, but had planned to get his landlord to build one. His plan had never materialized. The evidence failed to show any fixed intention upon the part of Martin to build a home and establish a home for himself and wife in McMullen county, and he had no domicile except the one in San Antonio, furnished by his wife through the grace of her father.

We are of opinion that the court properly deducted the four votes of Glau and wife, Ellen Pace and Avery Martin, from the votes cast for appellant.

Four of the original ballots have been made a part of the statement of facts, and the ballot numbered 12, cast by J. M. Whitley, shows that underneath the printed name of O. B.. Wright the voter wrote the name “A. R. Markuis”; but the name of Wright was not erased. We think the name “Mar-kuis” was clearly intended for the name Marquis, but we do not think the vote should be counted on account of the' failure to erase the name of Wright. It is provided in article 3012, Vernon-Sayles’ Statutes:

“No ballot which is not numbered as provided in article 3005 shall be counted, nor shall either of two or more ballots folded together be counted, and where the names of two or more persons are upon a ballot for the same office, when but one person is to be elected to that office, such ballot shall not be counted for either of such persons.”

The language is mandatory and imperative. The statute does not say that when two names are printed or two names are written upon a ballot it shall not be counted, nor does it intimate that where one name is printed and another name is written on the ballot by the voter it shall be counted for the man whose name is written, but “where the names of two or more persons are upon a ballot for the same office, when but one person is to be elected to that office, such ballot sháll not be counted for either of such persons.”- It is true that the writing of the name may have indicated an intention to vote for thé man whose name was written, but the intention of a voter cannot be permitted to set aside and render nugatory the plain provisions of the statute. Writing the name merely indicated that the voter may have desired to vote for the man whose name he had written; in other words, it was mere evidence of intention, and if two names had been printed on the ticket and in a contest a voter had sworn that he intended to vote for one of them, his testimony, if credited, might establish an excuse to destroy the statute and allow the intention to a voter to supplant and override it. It would be a dangerous precedent. Hull v. Duffield (Tex. Civ. App.) 251 S. W. 298.

In the case of Mrs. Hoegemeyer the name of A. R. Marquis was written in the proper place in the “Independent” column, but the printed name of C. B. Wright in the “Democratic,” column was not erased. The ballot was improperly counted for appellee, as • hereinbefore indicated.

In section 538 of McCrary on Elections, a California case, Kirk v. Rhoads, 46 Cal. 398, is cited, and we think, as does that author, that as to those things over which the voter has control the law is mandatory as to ballots, and that as to such things as are not under his control it should be held to be directory only. “But if the elector willfully neglects to comply with requirements over which he has control, such as seeing that the ballot, when delivered to the election officers, is not so marked that it-may be identified, the ballot should be rejected.”. In line with that rule, it has been held in different states that if a ballot-contains-the names of more persons than are to be voted for for a specified office.it is void as to that office and must be rejected. It has been held that in the absence of a law where a voter has written a name of a particular candidate and has 'not erased the printed name for the same office, the written name will be counted. “But when the statute of a state provides that if more persons are designated for an office than there are candidates to be elected, such part of the ticket shall not be counted, the statute will govern; and if a voter fails to erase the printed name of a candidate and writes under it the name of another person for the same office, the ballot shall not be counted for either.” McCrary on Elections, §§ 532, 533, 543; Blankinship v. Israel, 132 Ill. 514, 24 N. E. 615.

F. M. Galloway voted ballot No. 16, and erased the printed name of O. B. Wright and wrote thereunder the name “A. B. Maruuis.” We think it clear that it was the intention of the voter to cast his ballot for A. R. Marquis. It was shown that there were only two candidates for the office of commissioner of precinct No. 4, and no doubt can exist that the voter intended to vote for one of them, and the misspelt name indicates the person desired for the office. We think the ballot was properly counted for A. R. Marquis. The ballot is indicative of the will of the voter. The law does not require that it should be accurately or nicely written, or that the name of.the candidate voted for should be correctly spelled. If the will and desire of the voter can be ascertained from the ballot, and no law is infracted, the ballot should be given effect.

In spite of the fact that Lionitis Muniez who voted for appellant, strenuously and vigorously denied that he had ever at any »time resided in McMullen county, his vote was counted for appellant. This action is attacked, through a cross-assignment of error by appellee. The voter reiterated, and insisted that he lived in Live Oak county, that his home was there and had been for five years, and that he went to McMullen and other counties and obtained work, and when out of a job he always went back to his home in Live Oak county. He stated that he did not want to vote, because not a citizen of McMullen county, but had been persuaded to vote by a man who promised protection to him. That man failed to testify. The vote of Muniez should not have been counted, and without his vote appellant had only 19 votes. The vote should not only not have been counted because Muniez lived in Live Oak county, but because the law was ignored in preparing the ballot for him. Article 3003, Revised Statutes. No pretense was made that the requirements of the statutes were complied with.

The evidence showing that appellee received 20 legal votes and appellant only 19, the judgment will be affirmed.  