— This is a contest, filed by the appellant, of the election of the appellee to the office of justice of the peace. The facts, as shown by the bill of exceptions, are that there were, printed on the ballot, in the Democratic column, in the appropriate place, as candidates for the office of justice of the peace, the names of J. A. Cobb and J. C. Wilkerson (-two to be elected); that Cobb secured 16 votes, which were not contested; that Wilkerson received 4 votes by mark in the circle (O) at the head of the column; and that 26 voters erased the name of Wilkerson, and wrote immediately thereunder, in the Democratic column, the name of J. R. Cantelou, placing in front of the same a cross-mark.
The insistence of the appellant is that these votes should not have been counted, and because the only place in which may be written the name of a man whose name is not printed on the ballot is the “blank column,” on the right of the ballot, provided, for by section 379 of the Code of 1907. Section 380 provides that “the elector may write in the column below, under the title of the office, the name of any person whose name is not printed upon the ballot, for whom he may- desire to vote.” There is no inhibition against writing a new name in the space where the printed names for each office appear, provided there is room therefor; and it is noticeable that in the form appended to section 380, to which it is provided the ballot shall substantially conform, the “blank column” provided -for by section 379. does not appear at all, but to the regular party column *621there is added only the column for persons nominated by “independent bodies,” provided for by section 380.
The ballot which was used in this case is not copied into the bill of exceptions, so that we cannot say whether or not there was a “blank column,” as provided by section 379. However that may be, section 41-1 provides that, “if for any reason it is impossible to determine the elector’s choice, '* * his ballot shall not be counted, * * * nor shall any ballot he rejected for any technical error which does not make it impossible to determine the elector’s choice.” In this case there is ro doubt as to the electoi s choice. The votes were properly counted, and the probate judge pioperly decided in favor of the contestee.
The judgment of the court is affirmed.
Affirmed.
Dowdell, C. J., and McClellan and Mayfield, JJ., concur.