State v. Krueger

• Decision Date: 07 November 1963
• Docket Number: No. 309,309
• Citation: 124 N.W.2d 468
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Magdalene KRUEGER, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 468

124 N.W.2d 468

STATE of North Dakota, Plaintiff and Respondent, v. Magdalene KRUEGER, Defendant and Appellant.

No. 309.

Supreme Court of North Dakota.

Nov. 7, 1963.

Syllabus by the Court

1. Where the information clearly and precisely charges the defendant, in the language of the statute, of making a false canvass of votes, and fully informs her of the charges made and sufficiently identifies the occasion so as to enable her to prepare her defense, the information presents with reasonable certainty all facts necessary to render the offense judicially apparent, and denial of a motion to quash was proper.

2. 'Willfully,' as used in Section 12-11-31, North Dakota Century Code, making it a misdemeanor to falsely canvass votes, means 'intentional and not accidental'; that the person who committed the wrongful act intended to do what he is charged with doing.

3. Evidence that a defendant charged with falsely canvassing votes misread the vote in favor of one candidate and against another candidate on thirty-eight different ballots out of slightly more than 400 cast in her precinct, was sufficient to warrant a judgment convicting such defendant of the crime charged.

4. A person charged with a public offense cannot excuse her own conduct by showing that someone else, who is equally guilty, has not been prosecuted.

Helgi Johanneson, Atty. Gen., Bismarck, and Robert Vogel, Sp. Asst. State's Atty., for Mercer County, Mandan, for plaintiff and respondent.

Floyd B. Sperry, Bismarck, for defendant and appellant.

STRUTZ, Judge.

The defendant was convicted in the district court of Mercer County for illegal conduct as a judge of election. She was charged with the crime of willfully and unlawfully making a false canvass of votes cast for the office of State's Attorney at the general election held on November 8, 1960. On recount, it was found that one of the candidates for State's Attorney had been credited with thirty-nine more votes than he actually had received in the precinct in which the defendant was judge of election, while the other candidate had been credited with thirty-eight votes less than actually had been cast for him.

The evidence discloses that, after the balloting had been completed and the polls closed, and after the tabulation of votes had begun, at the suggestion of the inspector of election, the election officials, in order to speed up the counting of the votes, divided the ballots for the purpose of tallying the remaining results. The inspector and one judge undertook to count the votes on one set of such ballots while the defendant, as the other judge of election, with two clerks of election, counted and tallied the no-party ballots, including those cast for the office of State's Attorney. The record discloses that the two clerks acted as tally clerks, while the defendant, sitting at the end of a a table, read the results of the no-party ballot. Both clerks had identical totals after the counting had been completed. The results then were entered in the tally books, after which entries those books were signed by the members of the election board.

The evidence shows that the defendant, in counting the no-party ballots, would read the vote and then turn the ballot over on the table in front of her. She was the only one who saw the markings on the ballots. Throughout the tally of the votes, the two clerks were in complete agreement on the results. No one watched the counting, except for short intervals, and there was evidence that, when anyone went close enough to the defendant to observe the markings on the ballots, the defendant would stop counting and start a conversation.

Much of the defendant's justification for the incorrect counting of the ballots is based on the fact that the election inspector was guilty of such misconduct that it was impossible to have a fair canvass of the votes. There is evidence that the inspector also was guilty of violating several election statutes, such as the law making it a misdemeanor to deposit in a ballot box any ballot upon which the official stamp does not appear, and the law which makes it a misdemeanor to fail to wrap and seal the ballots after the counting is completed. The defendant also contends that the inspector was intoxicated and that, as a result of his misdeeds and his inebriated condition, the situation in the polling place was so chaotic that it was impossible to tally the votes properly. She contends that ...