The State v. Krueger

• Decision Date: 12 May 1896
• Citation: 35 S.W. 604,134 Mo. 262
• Parties: The State v. Krueger, Appellant
• Court: Missouri Supreme Court

35 S.W. 604

134 Mo. 262

The State v. Krueger, Appellant

Supreme Court of Missouri, Second Division

May 12, 1896

Appeal from Lafayette Criminal Court. -- Hon. John E. Ryland, Judge.

Reversed.

John Welborn, I. B. Kimbrell, and J. J. Williams for appellant.

(1) The statute only applies to judges and clerks of election and persons ejusdem generis. State v. Schuchman, 33 S.W. See, also, Endlich on Interpretation of statutes, secs. 85 and 358. (2) The indictment does not inform the defendant of the nature and cause of the accusation against him and is defective in substance. "It is no more allowable under a statutory charge to put the defendant on trial without specification of the offense than it would be under a common law charge. Wharton, Crim. Pl. and Prac., sec. 220; State v. Hayward, 83 Mo. 304; 1 Bishop, Cr. Pr., secs. 86 and 88. (3) Where the definition of an offense, whether by a rule of common law or by statute, includes generic terms (as it necessarily must), it is not sufficient that the indictment should charge the offense in the same generic terms as in the definition, but it must state the species -- it must descend to particulars. 1 Arch. Cr. Pr. and Pl., 88. "In mentioning things connected with the substance of the offense, the indictment should employ the word which denotes the species, not the generic term. For example 'property' is too general, so is 'cattle.'" 1 Bish. Cr. Pr. and Prac., sec. 568. State v. Crooker, 95 Mo. 389; State v. Rockford, 52 Mo. 199.

Teasdale Ingraham & Cowherd also for appellant.

(1) The indictment is drawn under section 3748, Revised Statutes. This statute is highly penal and must be strictly construed. State v. Bryant, 90 Mo. 534; Fusz v Spaunhorst, 67 Mo. 256; State ex rel. v. Smith, 114 Mo. 180; State v. McCance, 110 Mo. 398; Dudley v. Tel. Co., 54 Mo.App. 394; Sutherland on Statutory Construction, sec. 347; Sedgwick on Statutory Construction, p. 267; Potter's Dwarris on Construction of Statutes, p. 247. (2) The legislature alone can make the act a crime, and if through inadvertence or carelessness they fail to intelligibly define the crime the court can not aid the wording of the act. See authorities above cited. Sutherland on Statutory Construction, sec. 431; Coe v. Lawrence, 1 E. and B. 516; Green v. Wood, 2 Q. B. 185; U. S. v. Wiltberger, 5 Wheat. 76; State v. Partlow, 90 N.C. 550; Schooner Enterprise, 1 Paine Rep. 33; State v. Finch, 37 Minn. 434; State v. Lovell, 23 Iowa 304; Remington v. State, 1 Ore. 281.

John W. Beebe and W. S. Cowherd also for appellant.

R. F. Walker, attorney general, W. T. Jamison, prosecuting attorney, G. A. Neal and R. E. Ball for the state.

(1) The indictment is drawn in the language of the statute and is sufficient. Seate v. Johnson, 93 Mo. 317. It avers the means determined on by the conspirators and the plan adopted by them was executed. State v. Ulrice, 3 Dillon, 532. (2) Section 3748, Revised Statutes, 1889, is not under the rule of ejusdem generis, limited in its effect to judges and clerks. See U. S. v. Briggs, 9 How. 354; Eubanks v. State, 5 Mo. 450; Parsons v. Wayne, 37 Mich. 289. The doctrine of ejusdem generis is a rule of construction to aid in ascertaining the intent of the legislature and not a rule to be employed for the purpose of abrogating and nullifying the intent. State v. Williams, 35 Mo.App. 541; Kansas City v. Vanquest, 36 Mo.App. 584; St. Joseph v. Elliott, 47 Mo.App. 418; State, etc., v. Corkins, 124 Mo. 56.

OPINION

Burgess, J.

On change of venue from the criminal court of Jackson county to the criminal court of Lafayette county, the defendant was tried and convicted, and his punishment fixed at a fine of $ 100, under an indictment which, leaving off the formal parts, reads as follows:

"The grand jurors for the state of Missouri, summoned from the body of the county of Jackson, being duly selected, impaneled, sworn, and charged to inquire of and concerning crimes and offenses within and for the body of said county and state, and true presentment make, on their oath, present and charge: That on the first Tuesday after the first Monday in November, in the year of our Lord, 1894, it being the sixth day of said month, in the year aforesaid, a general election was holden under the constitution and laws of the state of Missouri, in and for the county of Jackson, aforesaid, in several townships and election and voting precincts of the said county, and in the city of Kansas City, the said city of Kansas City then and there being within the said county aforesaid, for the choice of and for the purpose of electing state, county, and township officers, as provided by law, the said election then and there being a regular and general election for the purpose aforesaid; that the said city of Kansas City then and there had a population of over one hundred thousand inhabitants, and whose population then and there entitled it to become a city of the first class, as provided by law, and a registration of voters thereof of said city, prior to said election, was then and there required for and had by the laws in such cases provided.

"That precinct 5, of the second ward, was then and there one of the election and voting precincts of the said city, county, and state aforesaid.

"And the grand jurors aforesaid, on their oath aforesaid, do further present and charge, that one Charles S. Owsley, John May, Owen W. Krueger, George J. Pearse, John Moran, Harry G. Bristow, and Ralph L. Krueger, alias Dick Krueger, late of said county and state, on the sixth day of November, 1894, in the city, county and state aforesaid, did then and there unlawfully, willfully, illegally, fraudulently, corruptly, knowingly, and feloniously change the true and lawful result of said election at said election and voting precinct aforesaid, to wit: by unlawfully combining and confederating together before the day of said election, to wit: on the twenty-fifth day of August, A. D. 1893, for the purpose of procuring an illegal, unlawful, and fraudulent registration of voters in the precinct aforesaid, and by procuring a false, fictitious, and fraudulent list of names to be registered on the registration books in said city and purporting to be legal and qualified voters in the precinct aforesaid, and by unlawfully combining and confederating together prior to said election aforesaid, to wit: on the twenty-fifth day of August, 1894, for the purpose of procuring corrupt and unfit persons to act as and for the judges and clerks of said election at said precinct aforesaid, who should do the will and bidding and become the agents of and for the said Charles S. Owsley, John May, Owen W. Krueger, George J. Pearse, John Moran, Harry G. Bristow, and Ralph L. Krueger, alias Dick Krueger, on the said twenty-fifth day of August, 1894, and who should at the instance and direction of the persons aforesaid, unlawfully, fraudulently, illegally, corruptly, and feloniously place ballots and papers purporting to be ballots in the ballot boxes at said precinct, accredited to the false, fraudulent, and fictitious names on the registration books aforesaid, and represented as votes cast by said false, fraudulent, and fictitious names, and by causing and having the said unfit and corrupt persons aforesaid, to make a wrong count of the ballots cast at said precinct of said election, and by making a false return thereof.

"And the grand jurors aforesaid, on their oath aforesaid, do further present and charge that the said Charles S. Owsley, John May, Owen W. Krueger, George J. Pearse, John Moran, Harry G. Bristow, and Ralph L. Krueger, alias Dick Krueger, in pursuance of the unlawful combination and confederation aforesaid, did on the twenty-fifth day of August, A. D. 1893, procure and obtain the placing on the registration books of said city for said precinct, a large number of false, fictitious, and fraudulent names, the same purporting to be legal and qualified voters, and did obtain and procure the said names to be placed on the poll books at said election precinct, and did obtain and secure the appointment of corrupt and unfit persons to act as judges and clerks of election at said election and voting precincts, to wit: Thomas L. Tuck, Henry A. C. Jeffre, Benj. D. Ridenour, Arthur O. Clark, George O. O'Dell, Everett E. Paddock, Issac Dreyfoss, and Joseph Pierce, on the twenty-fifth day of October, A. D. 1894, and did by means of said unfit and corrupt persons, cause to be placed in the ballot box at said election and voting precinct a large number of ballots and papers purporting to be ballots which had not then and there been voted by qualified voters at said election and voting precinct, to wit: two hundred thereof, and did procure a wrong count of the ballots at said precinct, and a false return thereof, by means of the persons aforesaid, the same not being in pursuance of law or the order of the court, with the intent then and there to unlawfully, willfully, illegally, fraudulently, knowingly, corruptly, and feloniously change the true and unlawful result of said election at said election and voting precinct, against the peace and dignity of the state."

From the judgment defendant appealed.

The case is before this court on the record proper, and the only question for adjudication is the sufficiency of the indictment.

The indictment is under section 3748, Revised Statutes, 1889, which reads as follows:

"If any judge or clerk of any election authorized by law, or any other person, shall willfully and knowingly receive and place in the ballot box, or aid, assist, or assent to the placing in any ballot box, any ballot, or paper purporting to be a ballot, which is not legally voted by a qualified voter at such election, or shall illegally, willfully and fraudulently...