Mr. Justice Gabbert
delivered the opinion of the court.
Appellant received a certificate certifying that at the last regular election of county officers for the county of El Paso, he was elected treasurer. This certificate was based upon a eanvass of returns made by the judges and canvassers of election in the several precincts of the county, according to which he was elected by a plurality of 106 votes over his competitor, the appellee. The latter contests his election upon the ground that in specified precincts there was error and mistake in the canvass of the votes by the officers charged with the duty of determining the results from the ballots cast, in this, that in these several precincts there were votes cast for him to the number of 269, which by error and mistake were not so counted; and that for like reasons, votes to the number of 222 were counted for appellant which in fact were not cast for the latter. Fraud, malconduct and corruption were also charged in the statement of contest, but so far as disclosed by the evidence, there was no attempt to prove these charges, the testimony being limited to the issues of error and mistake.
At the trial of this contest there was introduced on behalf of appellee the testimony of the county clerk, which in substance was that the boxes containing the ballots cast in these precincts were delivered to him in the regular way and by the proper persons, within two days after election, and since that date had been in his custody and possession in the vault-[310]*310in his office, which vault was secured by an ordinary combination lock, and so far as he knew, had been safely kept, and were in the same condition as delivered; that the combination of the lock was known by two of his office employees, and that all so employed, numbering eleven or twelve, had access to the vault when opened during business hours; that he thought, though not positive, that the combination of the lock was the same as when he assumed the dqties of the office; that reputable citizens, whose business from time to time required an examination of the records of the office, had access to the vault during business hours; that he was not at the office all the time during these hours; but that neither of the ballot boxes could have been opened in the vault without being observed by some employee in the office; that there were a large number of ballot box keys in and about the office, kept specially for the purpose of replacing those lost.
The evidence of the deputies who knew the combination to the vault was to the effect that usually either one or the other attended to opening and closing it; that to the knowledge of neither had it been opened after business hours, or during the evening or night; and that so far as they knew, no one had interfered with the ballot boxes; that from the positions they occupied in the office when on duty, no one could enter the vault without their knowledge. It was also stipulated by counsel that the evidence of each of the other clerks in the office would be substantially the same as the last two. On behalf of appellee this evidence was supplemented by the testimony of the-judges of the several precincts from which the boxes were opened and the ballots recounted, except in 60, in which only two were called. This testimony was to the effect that in their judgment the respective boxes, so far as they could observe, were in the same condition as when locked and sealed after the canvass of the ballots was completed. Upon the introduction of this testimony, the ballot boxes from the precincts in which a recount was demanded, were opened and the ballots offered and admitted on behalf of appellee for the purpose of a recount.
[311]*311The contest was finally narrowed to six precincts, for the reason that the recount of ballots in the others specified in the statement of contest did not affect the result; and a review of the evidence will be limited to these precincts.
Appellant then introduced as witnesses the judges, clerks, watchers and constables in these precincts who participated in or were present when the votes were being counted, varying in number from three to six in each, whose testimony was clear and positive that the count made was correct; and that no ballots were counted for him to which he was not entitled, and none omitted with which appellee should have been credited ; and that none doubly marked in the emblems or body in such a manner as to nullify the vote for appellant were counted for treasurer; that the ballots exhibited before the court so doubly marked were not in that condition when counted. It also appears from this evidence that the utmost care was exercised on the part of the election officers to prevent mistake, and the ballots carefully examined for the purpose of ascertaining for whom cast. Politically these witnesses represented the respective parties, or some of them, of which the parties to this contest were candidates; and from their statements relating to their business and experience, were persons of intelligence and education, and fully capable of comprehending and performing the duties for which they were selected. Appellant also called the county clerk and interrogated him relative to the proposition that the boxes could be unlocked and the contents removed without in any manner disturbing the seals placed upon the boxes by the judges, and the contents replaced and the boxes relocked without leaving any appearance that they had been opened. The court, without hearing further evidence on this subject, and at the request of appellant, made the following statement:
“That the keys to the ballot boxes 43, 52, 56, 58, 59 and 60, after being opened by the judges of the several precincts, were delivered by said judges to the court, by consent of both parties, since which time the court has, on one or more occasions, opened each of said boxes with the keys in his posses[312]*312sion, and allowed the ballots to be taken therefrom, without interfering with the seal of the ballot box; and the court could perceive no change in the physical condition of the boxes after being closed, from what they were previous, except in one case by accident where the seal had become loosened and dropped off.”
In rebuttal appellee introduced a number of witnesses who were in some manner officially connected with the reception and canvass of the ballots in the six precincts above mentioned, on which branch of the case the testimony in substance, with reference to the particular precinct to which it referred, was: that a number of ballots doubly marked in the emblems were counted and canvassed; that all the ballots so marked were not conflicting as to all the candidates. None of these witnesses, however, pretend to state that any ballot was improperly counted, or that any candidate was credited, with a vdte on ballots so marked to which he was not entitled; nor does either of these witnesses state that any mistake or error was made, or that the canvass and count was not correct; but on the contrary, when interrogated on the subject admit that they were satisfied with the count when made, and believed then it was correct. One of these witnesses stated that he remembered one doubly marked ballot in particular, over which there was quite a controversy, but which it was finally decided was not so marked as to be in conflict, but does not intimate that the decision was not correct. A witness who acted as watcher in one of the precincts stated that he noticed a number of doubly marked ballots counted; that there might have been twenty or thirty of that kind, but whether they were marked in such manner as to be conflicting, or for whom counted, he does not state. In this precinct twenty-one ballots were returned by the judges as defective on account of being doubly marked. Another witness who acted as judge in one of these precincts, states that some of the ballots were doubly marked, but in respect to an examination of them by himself, it was to the effect that he scrutinized each one carefully, as he did most of the calling off, for the [313]*313purpose of enabling the clerk to make the tally; that doubly marked ballots were counted for some of the candidates, but he does not claim incorrectly; on the contrary says he did not see anything wrong in the count.
There is no claim that the ballots were tampered with in transit from the polling places to the office of the county clerk.
On this evidence, and an inspection and recount of the ballots, in the precincts in which a recount was demanded by the contestor, the finding and judgment of the court was for appellee. The difference in the recount by the court, and that returned by the judges from the several precincts, after deducting from appellee ten votes in a precinct in which it was alleged in the answer, and stipulated by counsel, there was a clerical error of this number of votes in the computa tion made by the canvassing board of the returns from this precinct, was such that appellee was declared elected by a plurality of 138 votes over the appellant. In the five of the six precincts which affected the result on recount, numbered 43, 52, 58, 59 and 60, the loss to appellant, as compared with the returns was respectively fourteen, nine, thirty-eight, sixty-one and thiriy-one; while in the remaining one of these six precincts, being number 56, his gain was four; the result being a loss to him of 149 votes in these precincts. In the five of these six numbered 43, 56, 58, 59 and 60 the gain of appellee, in comparison with the returns, was respectively two, twenty-one, thirty-four, twenty-two and sixteen, with a loss of one vote in number 52, making his total gain in these precincts nineiy-fonr, and his net gain in the six, over appellant, 243. The court also found that the ballot boxes of the precincts which were specified in the statement of contest, together with the ballots therein, had been continuously in the custody and control of the proper officers from the time of the completion of the canvass and counting by the precinct officers down to the time of the recount by the court, and that beyond all reasonable probability, the ballots from these precincts had not been changed or altered, or in [314]*314any manner tampered with between the- time they were originally counted and the time they were recounted by the court.
The contention of appellant is that under the evidence it was clearly established that the ballots, after the canvass was made by the election judges, were changed by markings and crosses in the emblems and body in such manner as to affect the vote between the parties to this contest; which, accounts for the difference between the recount by the court and the returns made by the election judges.
It is a primary rule of elections that the ballots cast by the voters constitute the best, and are the primary, evidence of the intention and choice of the voters, when it is made to appear, from the identical ballots cast, that a candidate for a particular office has more ballots than another; but in order to have this effect, it must be shown that the ballots have been duly preserved in the manner provided by statute, and protected from any unauthorized intermeddling or tampering : Andrews v. Judge of Probate, 74 Mich. 278; Davenport v. Olerich, 75 N. W. Rep. 603; and the burden of proof is on the contestor to show that they have been so preserved, and have not been tampered with. Coglan v. Beard, 67 Cal. 303; Davenport v. Olerich, supra.
The fact that ballots have been in the custody of the proper officers from the time of canvass down to a recount is only prima facie evidence of their integrity, not conclusive. Ferguson v. Henry, 64 N. W. Rep. 292.
The rule that as between the ballots and the canvass of -them the ballots control, has no application where the ballots have been tampered with. Dennis v. Caughlin, 44 Pac. Rep. 818.
The court, upon recount, must be sure that it has before it the identical and unaltered ballots which were deposited by the voters, before they become controlling, as against the certificate of the result of the canvass of the election officers. Kingery v. Berry, 94 Ill. 515.
It is also held that where the evidence discloses that the care and custody of the ballots has been such that they may [315]*315have been tampered with, they are not admissible in evidence, unless there is evidence tending to prove that they are in the same condition as when canvassed. Martin v. Miles, 40 Neb. 135. This doctrine, followed to its logical conclusion, would lead to the further one that if the evidence, on recount, establishes that they are not in the condition cast, they must be rejected.
If the evidence in the first instance is sufficient to admit of a recount of the ballots, it is still proper to consider any evidence tending to impeach their integrity. Kreitz v. Behrensmeyer, 125 Ill. 141.
Where there is a substantial conflict in the evidence, the general rule is that an appellate court will not review it, with a view to determine its sufficiency to support the finding of the trial court.' But to this rule there are well recognized exceptions, as where the finding is the result of bias or prejudice, mistake or misapprehension, or misconception of the legal effect of the evidence; or where there is none. Beulah Marble Co. v. Mattice, 22 Colo. 547. Nor can a judgment but slightly supported by the evidence, and manifestly against its weight, be permitted to stand. Mitchell v. Reed, 16 Colo. 109.
Measured by these rules of law, the evidence heard by the trial court will be considered. It is not questioned but that the ballots were marked and crossed in such manner when counted by the court that the count then made, as determined by such marks and crosses alone, was correct; and the real question is, what does the testimony actually establish regarding the integrity of these ballots ? If it establishes that they have been tampered with, or if it is not clear that they were in the same condition when recounted by the court as when canvassed by the precinct officers, then the judgment below cannot stand. It appears, that from the time of delivery, the ballot boxes had been in the custody of the proper officer; that so far as he and his employees knew, their contents had not been disturbed or tampered with. The judges called, stated that so far as they could see, the boxes exhibited no kange, or any appearance of having been opened. The evi[316]*316dence, However, was of but little weight in the light of the statement of the trial judge, from which it appears that the construction of these boxes was such that they could have been opened, the ballots removed, again replaced, the boxes relocked, and yet it would have been impossible to detect, from an inspection, that they had been opened. As against the mere passive and negative evidence of the county clerk and his employees, and the physical appearance of the boxes, there is presented the clear, positive and uncontradicted testimony of the judges, clerks and others called by appellant, to the effect that the count made was correct; that ballots doubly marked, when counted by the court, were not so marked when counted by the precinct canvassers; that no ballots were counted for either of the parties to which they were not entitled, and none omitted with which they should have been credited. To rebut this there is not a statement from the lips of a single witness called, that even one mistake was made in the original canvass, or that a single ballot was improperly counted.
It is understood from the argument and record that the reduction in the vote of appellant, as determined by the court, in comparison with that determined by the precinct officers, was due almost entirely, if not altogether, to the fact that on recount of the vote in the six precincts above mentioned, ballots were found to the number of 158 doubly marked either in the emblems or in the body, in such manner as to nullify the vote for treasurer. What appears strange, is that on each of these ballots a'cross was made either opposite the name of appellant, or an emblem, which would count as a vote for him had not a cross also been placed either opposite the name of another candidate for treasurer, or opposite an emblem, which nullified the mark in his favor. It is also worthy of notice that in four of these six precincts the loss to appellant, in this way, was respectively fourteen, thirty-eight, sixty-one and thirty-one votes, in the face of the evidence of the judges, clerks, watchers and others present when the precinct canvasses were made that they were correct, and that no such [317]*317doubly marked ballots were seen or counted for candidates for treasurer. It is also worthy of notice that in these same precincts the gain for appellee, on recount by the court, was respectively two, thirty-four, twenty-two and sixteen, or a change, as returned by the precinct officers, of respectively sixteen, seventy-two, eighty-three and forty-seven votes, as between the parties to this action; and yet not a friend, enemy or partisan of either is found who states that a mistake of a count of one vote was made in either of these precincts. That all of those present in the capacity of watchers or constables were so obtuse as to permit mistakes in such number, and in such manner, to occur in their presence, to detect and prevent which was the special business for which they were engaged, is a remarkable circumstance, to say the least. Again, that such mistakes and errors could have occurred in the canvass by the precinct officers, and escape notice or detection by every one present, when the number of these errors as‘found by the court is considered in connection with the number of votes cast in such precincts, is altogether unreasonable and improbable. In precinct number 58 the total vote for treasurer, as between these parties, was 309; or, as found by the court, 305; and a comparison of the official returns, with the count by the court, discloses that if the former was not correct, appellant was credited with thirty-eight votes more than he was entitled to, and appellee with thirty-four less; or, mistakes were made by the precinct officers, to the detriment of appellee, to the number of seventy-two votes. In number 59 a like comparison shows the loss to appellant to be sixty-one votes, and a gain to appellee of twenty-two, or a mistake in the official count which resultedin depriving appellee of eighty-three votes; and this great number of errors in a precinct where, according to the official count, the total number of votes cast for both was only 227; or, as found by the court, 188; or, taking the six precincts specially under consideration, it is found by similar comparison that in the official canvass of 1511 votes for treasurer, or in canvassing only 1356 votes for this office, as found by the court, the errors made by the [318]*318precinct officers were 248. From these precincts, or several of them at least, more or less ballots were returned defective on account of having been so doubly marked that they could not be counted for any candidate, from which it is evident that the judges were alert, and understood fully the effect on ballots so marked; while in’ precinct 43, according to the evidence'of a witness called by appellee, controversy arose over one ballot which was in some manner doubly marked, but which it was finally decided was not so marked that the marks conflicted, and the witness does not intimate that this decision was not correct, which further demonstrates the care which these precinct officers were- exercising in the discharge of their duties.
From this testimony it is clear that the judgment of the trial court was manifestly against the weight of the evidence in the case; and that the finding of the court regarding the integrity of the ballots must have been based alone upon the testimony relative to the care and custody of the boxes and their condition when produced in court, which are but mere circumstances when considered in connection with the overwhelming and uncontradicted testimony regarding the correctness of the official count. The evidence establishes that these boxes have been tampered with; or else it must be conceded that all the witnesses who testified regarding the official count have deliberately committed perjury*. The circumstances of the care and custody of these boxes is wholly insufficient upon which to base any such conclusion, when the evidence further discloses there was a possibility they could have been opened and the ballots altered by evil disposed persons; and though such possibility is not of itself sufficient to destroy the integrity of these ballots, this possibility, when coupled with the evidence relative to the official count, demonstrates that someone has embraced the opportunity thus offered and changed the ballots in these precincts.
The burden of proof was on the appellee to show noninterference with the ballots, and that upon recount they were the identical unaltered ballots deposited by the voters. It is not [319]*319sufficient that a mere probability of their security and inviolability was proven; but these facts must have been shown with a reasonable degree of certainty. Dailey v. Livingston, 79 N. Y. 279.
Under the system of ballots adopted in this state it is extremely easy to commit fraud after the count by the precinct officers, if access be had to the boxes and contents, for the reason that in order to change a ballot a mere stroke of the pen is all that is required ; and it is therefore necessary that these rules relative to the integrity of the ballots, when exhibited for recount, be strictly applied, and that the proof of erroi and mistake on the part of the precinct officers be clear, before a recount will control, as against the official returns.
It is urged, however, that the finding of the court that appel lee was entitled to ninety-five more votes in these precincts than he was credited with by the election officers, is corroborative of the claim of the contestar that the precinct officers committed errors and mistakes in the count of the ballots; but this finding, based as it is upon ballots taken from boxes in which others were found that had been tampered with, is of but little weight against the clear and positive testimony that no such mistakes occurred; and besides, it appearing from the evidence that other ballots from these boxes have been altered, it could not be said, with any degree of certainty, that the ballots upon which the appellee relied for votes in his favor, upon the recount, were not likewise changed, and the integrity of all the ballots therefore stands impeached, and they cannot be considered controlling as against the official returns.
A number of the ballots introduced on the trial of the case below have been transmitted with the record for examination by this court, from an inspection of which the peculiar markings of these ballots is disclosed, a few examples of which will be noticed. In many instances the emblems only were doubly marked, and in cases where the marks would indicate a vote for appellant, were it not for one opposite another emblem, the difference between the two is so evident, the conclusion must be that they were not made by the same hand; and as further [320]*320supporting this conclusion, the similarity of the crosses opposite emblems nullifying those opposite the emblems of the party of which appellant was a candidate, is so striking and manifest that the conclusion is unavoidable they were made by the same person. In other instances, the voters have indicated their choice by placing a cross opposite the name of each candidate for whom they wished to vote, evidently fully understanding and comprehending how to vote in this manner; and yet, after an exhibition of this intelligence, another cross is found opposite an emblem which nullifies, more or less, all those in the body of the ticket—markings which are so inconsistent with each other that it is not probable they were made by the same person; and again, the similarity of the crosses in the emblems in these instances with those above noticed, is clear and evident. In other instances, where the voters sought to mark their ballots by placing a cross opposite the name of each candidate for whom they intended to vote, and for this purpose placed a cross opposite the name of one candidate for each office to be filled, except in the case of county treasurer, where, according to the marking, they voted for two candidates for this office—another example of improbable acts by those who apparently understood. how to mark a ticket.
From the face of these ballots, therefore, as well as the clear weight of the oral testimony, it is manifest that the ballots have been changed and altered since they were counted and canvassed by the precinct officers; and the conclusion therefore is that the official returns must control, from which it appears the appellant was duly elected.
The judgment of the county court is reversed, and the cause remanded, with directions to render judgment that appellant was duly elected, and is entitled to the possession and control of the office, upon qualifying, as by law required. Judgment is also directed that appellant recover his costs to be taxed, as in other cases.
Reversed.