In passing on the contention of appellant that the Guadalupe and Pleasant Green boxes should be thrown out and not counted at all because of the misconduct of one Traylor, we stated in the main opinion that as Fly was not shown to have been privy to the practices complained of the contention could not be upheld. Counsel for appellant seems to have misapprehended our meaning. Of course we did not mean to be understood as holding that Fly would not be the loser to the extent of any votes shown to have been improperly influenced whether with or without his knowledge or consent. We meant no more than that in the absence of Fly's connivance or procurement the box would not be entirely thrown out merely on the showing *Page 415 that Traylor had improperly influenced a portion of the voters at that point, or of efforts on his part in that direction not shown to have been effective.
We are still of opinion that if bribery or intimidation is relied on to defeat an election or to secure the elimination of a part of the vote the allegation must be proven as any other, that is to say, either by circumstances or direct proof. In this case, except as to John Coleman, whose vote is disposed of in the main opinion, the proof fails to identify a single voter who was influenced by the conduct complained of, or to establish that any were so influenced. Appellant confesses his inability to name or identify one. We know of no reason why the rule as to the quantum of proof should be more liberal in this character of case than another. In every litigation the plaintiff must make out his case.
We are aware of the rule requiring the elimination of an entire box where practices are resorted to which necessarily or probably influence a large number of voters, and where by reason of their nature the effect is rendered impossible of definite ascertainment. But this case does not present such a situation. The bribery complained of and sought to be established was brought to bear, if at all, upon individual voters. It is not shown that the efforts were in any instance effective, even if it be conceded that the efforts were shown to have been made.
As to the general threat of eviction against the tenants of Traylor's relatives, they could have been identified and their votes shown. This was not done.
We think we were justified in our conclusion that on the issue of threats and bribery we were not authorized to disturb the judgment.
The issue was made by plaintiff as one of the grounds of contest and was affected by the amendments complained of as having been erroneously allowed. On the question of the amendments we must adhere to our first conclusion. Whether the amendments were of such a nature as to operate to the injury of appellant was a question addressed first to the sound discretion of the trial court. The incidents of the trial seem to have justified his action. No absent proof was suggested, though the trial extended over several days. Every material issue was sharply contested and the facts developed. The new matters complained of as having operated as a surprise consisted of assaults on the legality of certain votes for Bailey.
The brief complains of the court's action as to but two of these, and as to them not upon the ground that contestant was not prepared upon the issues. We think it fairly appears the surprise complained of resulted in no injury to appellant. We deem it unnecessary to add anything further to what has been written. The motion is overruled.
Overruled. *Page 416