State, Ex Rel. v. Bd. of Elec.

The controlling question in this case is whether parol evidence is admissible to explain the meaning of marks on the poll books in the form of an "X."

The record shows in the exhibit upon the tally sheet after the name of William E. Krauter five "X" marks in the five columns under the figures "10," "20," "30," "40," "50," and the same number of "X" marks in the same position after the name of Jesse R. Brinkman. The "10," "20," "30," "40," "50," at the head of these particular columns, evidently signifies the number of votes tallied. Following the five "X's" after the name of Krauter are nine groups of five tallies each, and two single tallies, and after the five "X's" following the name of Brinkman are eight groups of five single tallies each, and two single tallies. Under the total in figures following the name of Krauter are the figures "97," and under the column headed "Total Votes for Each Person," fully written out in words, are the words "ninety seven." Under the total in figures following the name of Brinkman are the figures "92," and under the column headed "Total Votes for Each Person," fully written out in words, are the words "ninety two."

Evidence was given in the Court of Appeals, over objection, by the clerk of the board of elections of Polk township, Crawford county, Ohio, at the election of November 6, 1923, that he made the marks in question when he was counting the votes in the precinct of Polk township, and that when the judges counted out ten votes he, the clerk, marked an "X" for 10 votes; that one of the judges called out "ten" whenever 10 ballots had been counted for a candidate, and following this announcement by the judge the clerk made a cross mark, an "X," upon the tally sheet; that the single tallies represented single votes marked from the mixed tickets. The clerk testified that, counting the "X" marks as 10, Krauter and Brinkman were tallied as receiving 97 and 92 votes, respectively.

Plaintiff in error claims that this testimony was inadmissible, upon the ground that it contradicted the face of the tally sheet; but is this contention based upon a sound premise? Does not the face of the tally sheet in fact show, apart from any oral testimony, that Krauter and Brinkman were accorded exactly the same number of votes, namely, 97 and 92, as was shown in the testimony of the clerk? In other words, does not the tally sheet itself, without explanation, show that the "X" mark is counted as ten?

The use of Roman numerals, particularly the "V" and the "X," is extremely common in this country, and is taught in the schools. The placing of the letter "X" under the figures "10," "20," "30," "40," "50," in succession in the places set for counting up the tallies — the letter "X" being commonly used to correspond to "ten" — gives rise to a reasonable inference of fact that the "X" is a mark for 10 ballots.

Passing over to the totals placed upon the tally sheets, we find that each of the five "X's" in case of each of the candidates, Krauter and Brinkman, evidently is counted as 10, for otherwise the total of 97 and 92, written both in figures and in script, is erroneous. If the "X" is counted as 10, the total is correct in both instances. What contradictory matter appears on the face of this tally sheet, if "X" is counted as representing 10 votes? If we count the "X" as 10, the tally carries nothing to explain; the parol evidence received was purely cumulative, and in no way contradicted the face of the tally sheet, and hence its admission was not erroneous.

Judgment affirmed.

MARSHALL, C.J., ROBINSON, JONES, MATTHIAS, DAY and ALLEN, JJ., concur.

WANAMAKER, J., not participating.