This is a contest for the office of county judge of Victoria County and was brought by the appellant, Bailey, under the statute. The court found for the appellee, Fly, upon a majority of one vote, and Bailey has appealed. Appellee moved to strike out the statement of facts and the motions were taken with the case. They have been considered and are overruled.
The action was instituted December 2, 1902. On December 12th, the last day for answer allowed under the statute, Fly answered. On the same day Bailey filed his exceptions that the answer was a sham, as it named no illegal vote or miscounts. For lack of time these exceptions were not passed on at that term and a continuance was had. On December 12th there was a motion to require appellant to file a cost bond, and in response thereto Bailey ultimately filed an affidavit of inability to give security for costs.
Fly filed several amendments but the trial was had upon the amendment filed April 30, 1903. To all the amendments Bailey urged exceptions on the ground that in this character of contest amendments are not allowable except in the elaboration of allegations contained in the first answer and seasonably filed, and that the amendment upon which the cause was tried was violative of the rule as thus stated, was not seasonably filed, and that he was unprepared upon the new issues thus made and a continuance would be destructive of his rights.
The exceptions were overruled and the cause was tried in March, 1903, resulting as stated.
The appellee made the point that an action such as this can not be maintained upon an affidavit of inability to secure the costs.
The appellant presented the question of the right to amend. Both these questions were certified by us to the Supreme Court, and the answers sustained the appellant's contention as to security for costs and the appellee's contention on the question of amendment. On the latter point it was ruled that the right to amend existed in this cause as in civil cases, and relegated to this court the question as to whether the right had been abused to the detriment of appellant.
In the court below the appellant in opposing the amendment upon which the cause was tried contended that he was not ready upon the new issues thus made, but the trial disclosed no lack of readiness, nor did the motion for new trial disclose the existence of additional evidence which would have affected the result. Indeed no effort during the trial or on motion for new trial was made to show injury in this respect. For these reasons we are of opinion the assignments assailing the action of the court in allowing the amendments should be overruled.
The count of the returns by the commissioners court gave Fly 949 votes, Bailey 946 votes, and Thurmond, the third candidate for the *Page 412 office, 473 votes. On the trial the evidence was heard and the ballots recounted. After certain deductions from and additions to the vote of each party the court found as a fact that Fly had received 939 legal votes and Bailey 938. We do not deem it necessary to set out the voluminous facts upon which the court reached this conclusion. We deem it sufficient to set out the state of the record as to each voter the legality of whose vote is the subject of an assignment of error.
When the trial court announced his conclusion disclosing a majority of one for the appellee, the appellant moved the court to order a new election on the ground that it was impossible to determine from the evidence which of the parties was entitled to the office. The court overruled the motion and his action is assigned as error.
The statute requires the court to order a new election only in case the result of the contest is a tie. The facts in such a contest are to be ascertained as in any other case, and it is the duty of the court as a trier of fact to pass on the credibility of the witnesses and the sufficiency of the evidence and announce the fact result. Unless that result is a tie the judgment must inevitably award the office to the one found to have received a majority of the legal votes cast, however scant that majority may be. After the facts are thus found the court has no discretion as to the nature of his judgment.
Appellant insists that the Guadalupe box should have been thrown out on account of alleged intimidations practiced by one Traylor in asserting, in substance, that he asked only occasional favors of his tenants, and they must vote as he chose or move. These threats, if indeed they were taken as serious, were not shown to have been addressed to his tenants, and it is not shown how his tenants voted. While he worked at the polls as a partisan of Fly, the latter is not shown to have been privy to his conduct. We do not think the voters at that box should be disfranchised on such a slight showing. If a particular voter is shown to have been affected the rule would be different as to him, but of this we shall see further.
The same is true of the allegations of bribery. The result of elections ought not to be disturbed on such vague and intangible grounds.
By the twentieth assignment appellant complains that the trial court erred in refusing to find that the voter John Coleman, of the Guadalupe box, had been intimidated by a threat of eviction from Traylor and thereby induced to vote for Fly. This voter testified that he intended to vote for Bailey, but that wishing to please Traylor, who was his friend, he voted for Fly. He was not a tenant of Traylor but of a relative of his. The voter testified that he was neither intimidated nor influenced by what Traylor said about eviction. His brother, Ben Coleman, was in the same position, openly voted for Bailey, and was not evicted. The assignment is overruled.
By the twenty-third assignment the action of the trial court is brought in question in respect to the admission of the testimony of Thomas Droddy to the effect that the witness McCray had told him *Page 413 subsequent to the election that he had not claimed Victoria County as his home until less than six months before the election. It seems to be well settled that such post-election declarations of the voter are not admissible as original evidence. Davis v. State, 75 Tex. 428. They were not, however, admitted as such. The voter testified in the case, and, while he claimed to have made Victoria County his home for more than six months preceding the election, his testimony tends to show that he was a transient, floating character making his home where he found work, and it was disclosed as a fact that within six months of the election he had spent thirty-six days in Matagorda County at work. The evidence complained of was admitted to impeach his testimony to the effect that he claimed Victoria as his home and intended to fix his citizenship there. Under the facts as stated by the voter his right to vote depended peculiarly on his purpose. We think as impeaching testimony the evidence of Droddy was admissible. 1 Greenl. on Ev., sec. 462.
McCray voted for Bailey and his vote was excluded by the court. This is also assailed. We do not feel justified in disturbing the conclusion of the court upon this point. He saw the witness and heard him testify. In view of the facts disclosed by his testimony, which tended to support the judgment of the court upon the point, we can not say the court was wrong in refusing to credit his statement that he claimed and intended to make Victoria County his home in time to qualify him to vote at the election in question.
One Terus Mieto voted for Fly and the court refused to sustain the contention that his vote was illegal. Appellant complains of this on the ground that the undisputed evidence is to the effect that he was not a qualified voter. The evidence relied on refers to one Jesus Nieto, and the identity of the one with the other is nowhere shown.
Max Ramos, who voted for Bailey, was held not to have been qualified. Under the evidence we do not feel authorized to disturb this finding.
The legality of the vote cast by the negro Joe Brown for Fly depended on his age, and we think the evidence is ample to sustain the finding that he had attained his majority. Appellant concedes that the evidence on the point is conflicting.
The court did not err in refusing to file conclusions of fact and law, it appearing that the motion therefor was made on the last day of the term and the court certifying that there was not time to prepare them. If the appellant desired them he should have proffered the request sooner, as considerable time elapsed between the date of the judgment and the close of the term.
In view of appellant's contention that the judgment of the court is due to an erroneous calculation and is not sustained by his fact findings included therein, it is well perhaps to pass on such of the cross-assignments as are well taken.
The appellant assailed the vote of one Francisco Soto as illegal, he *Page 414 having voted for Fly. The court excluded the vote on the ground that the voter was under 21 years of age. He was not called as a witness. His mother stated she thought he was 22 years old. The only evidence adduced by appellant to establish his minority was the deposition of Rev. Pitoye to the effect that he was the custodian of the baptismal records of his church. That the latter required such records to be kept, and that an entry in such records made by some of his predecessors in office showed that Francisco Soto had been baptized in March, 1884, the date of his birth being given as December 3, 1883. This evidence was admitted over the objection of appellee and the point is presented by cross-assignment.
It is doubtless true, upon a familiar principle, that the baptismal record would have been admissible to prove the fact and date of baptism and of any incidental issue which that fact might tend to establish, for that fact was within the peculiar knowledge of the person making the record; it was his duty to make it; and he is shown to be dead. But the date of birth was not within his knowledge and must have been acquired by hearsay. In Town of Union v. Town of Plainfield, 39 Conn. 564, it is held that an entry in a family Bible of the place of birth is not admissible on that issue. Connecticut M.L. Ins. Co. v. Schwenk,94 U.S. 593, and Metropolitan L. Ins. Co. v. Anderson, 29 Atl. Rep., 606, sustain the conclusion that the evidence was inadmissible. The vote should have been counted for Fly.
We must also sustain appellee's eighth cross-assignment, which complains of the counting of a vote for Bailey upon which the name of both Bailey and Thurmond are printed and neither is erased. There is a pencil mark underneath the name of Thurmond, but the name is untouched and unmarked. The ballot does not disclose the intention of the voter. Article 1741 of the statute expressly forbids the counting of a ballot where the names of two candidates for the same office remain thereon. We are of opinion the record supports the conclusion of the trial court, and no reversible error being shown the judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.