
    Powell v. Marcum.
    September 23, 1949.
    
      Lewis & Weaver for appellant.
    J. R. Llewellyn for appellee.
   Stanley, Commissioner

Reversing.

In the recent primary election for the Republican nomination for justice of the peace in Coyle District of Jackson County the election commissioners reported that Homer Powell received 330 and John F. Marcum 328 votes. Four other candidates received fewer votes. On a recount the circuit court found that Powell and Marcum each had received 327 votes, and declared a tie.

On the appeal Powell questions the ruling of the court in counting a certain ballot cast in Precinct No. 2 for the appellee Marcum. Opposite Marcum’s name is a very heavy mark having no distinctive form. It may have been made by the stub end of the stencil or as a smear o.r blur to eliminate it. This, mark is different from any made in the other races. Just above it, opposite the name of Templeton, another candidate, is a very dim mark resembling an indistinct cross. It was undoubtedly made with the stencil. We discern no erasure which might confirm the view that it had been made by mistake and an effort made to eliminate it. It is observed that in six other races the marks are of the same character. In three other races the ballot was marked by very definite impressions of the butt end of the stencil. Were there only one or the other mark in the race for justice of the peace, there would be no difficulty in deciding it constituted a vote. Either would have evidenced the voter’s intention. We are of opinion, therefore, that this ballot should be deemed as having been cast for two candidates for the same office, and spoiled. This ruling reduces Marcum’s total vote to 326.

The trial court ruled that a certain ballot east in the same precinct should not be counted for any candidate. On the cross-appeal Marcum claims it should be counted for him. This ballot has a heavy cross mark for Marcum and also two dim cross marks, one for Powell and the other for a third candidate. This voter cast a ballot in only one other of the ten races appearing on it, and his stamp there is almost identical with the two dim ones in the magistrate race. We concur in the finding of the court that this is a spoiled ballot.

Our conclusion, therefore, is that the judgment should declare that Powell received 327 and Marcum 326 votes. Accordingly, the judgment is reversed.  