(Dissenting). This is an election contest involving the Democratic Primary held August 8,1961 in Paragould. Upon the count certified by the Greene County Central Committee appellee received 1087 votes and appellant 1077 votes in the race for Mayor. A petition by appellant to the Central Committee requesting a recount was denied and this action was thereafter filed. The complaint alleged 21 illegal votes were cast for appellee and in Paragraph V (upon which the result here hinges) it was alleged that Jones Horn, an election judge in Ward 2, Box 2, had made a bet on the outcome of the election and stated he had changed and thrown out certain votes in this box. Appellant prayed specifically for a recount of Ward 2, Box 2.
At the conclusion of appellant’s testimony on the allegations contained in Paragraph V of the complaint, the trial court sustained appellee’s demurrer to the evidence which in effect was a motion for an instructed verdict. The court then proceeded to determine the validity of certain votes challenged by both parties and upon conclusion of the trial rendered its findings showing the count to be 1078 for appellee and 1060 for appellant. The determination by the court of the validity of these votes is of no consequence unless appellant is entitled to a recount of Ward 2, Box 2, since our ruling thereon would admittedly not change the result of the election.
It is reasonable, to say the least, that a candidate in an election wherein the difference is only 10 votes is entitled, in the public interest, to be given every consideration in a request for a recount. Judges and clerks being human, it is not without the realm of possibility that 5 honest errors in the tally could be made from over 2,000 votes cast, and this in itself would change the result. I am compelled, therefore, to examine even more closely the matters involved here, for certainly the voters of the City of Paragould are entitled to a true and accurate count of the votes cast.
It is impossible for me to see how the majority can conclude that no question of the accuracy of the count in this box is raised by the activities of Jones Horne. It is practically admitted that Horne made a substantial bet on the Mayor’s race. It is further obvious from the record that on the night of the election Horne made certain statements which would throw into grave doubt the accuracy of the count of the box on which he served as judge. Certainly, under our statutes, as the majority points out, Horne was disqualified to serve as judge. This alone should require that the box be looked into. It must be pointed out that the appellant here did not ask that the box be invalidated but only asked that it be recounted to determine if the judges and clerks reported the true and accurate results.
The majority correctly states that the evidence of appellant must be. given its strongest probative force. But then it goes on and used as its authority for affirmance the language from Patton v. Coates, 41 Ark. 111, which, when read in the light of appellant’s evidence, leaves no doubt as to what the proper result should be. If the actions set forth in the record before us are not “clear and flagrant” and “sufficiently potent to render the result really uncertain” then no candidate will ever be entitled to a recount. The evidence on its face clearly “defeats a free election”.
The opinion of the majority which in effect puts its stamp of approval on Horne’s questionable acts, in my view, makes a fundamental error in its approach to this question. Without one bit of discussion on the point, it presupposes that in order to obtain a recount of the box in question appellant must show here and now that the result of the election would be changed. This, as I see the matter, is a basically erroneous hypothesis, for if appellant were able to show by proper proof that the result of the election would be changed, a recount would be superfluous and unnecessary and appellant would be entitled to a reversal and declared the winner of the election forthwith. This, of course, is the reason that the majority of courts have adopted the rule as stated in 29 C. J. S. “Elections”, Section 290:
“It is held by some authorities that a mere charge or allegation of error, mistake, fraud, misconduct, or corruption in counting the ballots or declaring the results of an election warrants a recount of the ballots on the request of the complaining parties, and under some statutes a recount may be had merely on application therefor and without stating any particular grounds. However, it is more generally held that a resort to the ballots cannot be had unless the contestant shows at least a probability that a recount would decide the election in his favor, that there were frauds, irregularities, or mistakes committed in the acceptance of the ballots and return of their count, * * * Ordinarily when the state of the evidence is such as to throw uncertainty on the accuracy of the cou/nt by the inspectors and judges a judicial count is properly ordered.” (Emphasis mine) Our own legislature has in effect adopted this rule in contests of elections. Ark. Stats. § 3-1012 requires that the petition to the County Election Commissioners asking for a recount merely show “reasonable grounds for believing that the return, as made by the judges of election, does not give a correct statement of the vote as actually cast.” Although, this statute applies to elections as opposed to primaries, since there is no pronouncement on the point as to primaries we can certainly look to this enactment to determine the legislature’s feeling on the matter.
The voters of Paragould and every other ward and precinct in our nation are entitled, nay, guaranteed that our elections he conducted in such a manner that their votes will he accurately reported. If the evidence presented here does not warrant the recount of the box in question, I do not know what would he necessary to place the accuracy of the count in douht.
For the reasons stated I respectfully dissent.