Citation Numbers: 198 S.W.2d 505, 303 Ky. 677
Judges: OPINION OF THE COURT BY JUDGE CAMMACK
Filed Date: 11/8/1946
Status: Precedential
Modified Date: 1/12/2023
Affirming.
John Gilbert was appointed an election officer for Verda Precinct No. 7 in Harlan County to serve in the local option election held March 28, 1942. The opinion in the case of Jackson v. Bolt,
In his original brief he insists that a peremptory instruction should have been given in his favor and the verdict was the result of passion and prejudice because the jury were told to find him guilty if they believed that he did participate in making up a fraudulent poll book for Verda Precinct No. 7. In a supplemental brief it is insisted he could not be convicted of violating KRS 124.220 because no election was actually held, and it was *Page 679 error to transfer the case to Wayne County, a county not adjacent to Harlan County.
In support of the second contention in the supplemental brief it is vigorously contended that our opinion in the similar case of Cooper v. Commonwealth,
We think the first proposition discussed in the supplemental brief is also without merit because Gilbert's position is somewhat analogous to that of Osborne in the case of Osborne v. Commonwealth,
The original brief is based upon the theory that there is no evidence whatever in the record tending to show that Gilbert had anything to do with tampering with the ballot boxes and fraudulently voting the ballots. We take a contrary view. Gilbert was designated as an election officer and accepted that responsibility. He got *Page 680 the box and paraphernalia and took them to his home, thereby assuming the responsibility for their safe-keeping. Accepting as true his statement that he did not return to his home between 6 p. m. the day before the election and 4 a. m. the following morning, at which time he learned that the election materials had been removed, he made no effort to find them nor did he report their loss. Even though he was designated as an election officer, he did not go to the place where the election was to be held until around 8 or 9 o'clock, and upon learning that no election was being conducted he returned home and slept until about noon. He did say, however, that he reported the loss of the election materials to a deputy sheriff who left Verda about three years ago. Gilbert and Finley took the box and other materials from the officer's room in the Club House, according to the testimony of the former, and carried them to Harlan about 1 o'clock. They did not even wait until the time for the polls to close. Gilbert turned the materials over to the county clerk and receipted for them, but he made no report of what had happened. He knew that no election had been conducted and even after he got the box he did not contact the other officers and report to them what had happened or make any effort to hold an election. Even if we assume that the box stuffing was done in the deputy sheriff's room, Gilbert's own testimony put him at that place and he was bound to have known what had happened because he and Finley lost no time in taking the box and other materials to the county clerk's office.
Under the circumstances, we think there was ample evidence to warrant the submission of the case to the jury and to support their finding of guilt.
Judgment affirmed.