In 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 *Page 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.