State v. Gritzner

• Decision Date: 02 June 1896
• Parties: The State v. Gritzner, Appellant
• Court: Missouri Supreme Court

36 S.W. 39

134 Mo. 512

The State v. Gritzner, Appellant

Supreme Court of Missouri, Second Division

June 2, 1896

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

Reversed.

Davis & Duggins for appellant.

(1) Sections 3931, 3932, Revised Statutes, 1889, are unconstitutional. First. Because the enforcement thereof would tend to deprive citizens of the state of their liberty or property without due process of law. Second. Because by the enactment of said sections, the legislature attempted to legislate against the trading and dealing in certain articles of personal property, when a general law embracing all kinds of personal property could have been enacted. Third. Because said sections are special laws tending to regulate the practice in judicial proceedings and also change the rules of evidence in said proceedings. And whether a general law can be made applicable in any case, is hereby declared a judicial question, and as such shall be judicially determined without regard to any legislative assertion on that subject. Const sec. 53, art. 4. No person shall be deprived of life liberty, or property without due process of law. Const., sec 30, art. 2. The general assembly shall not pass any local or special laws: (a) Regulating the practice or jurisdiction of or changing the rules of evidence in any judicial proceeding or inquiry before courts. (b) In all other cases where a general law can be made applicable, no local or special law shall be enacted. Const., sec. 53, art. 4; State v. Loomis, 115 Mo. 307; State v. Granneman, 132 Mo. 326. (2) The court erred in admitting illegal and incompetent testimony. Witnesses should state the facts, not their conclusions, understandings, or opinions. State v. Miller, 44 Mo.App. 159; Nelson Mfg. Co. v. Mitchell, 38 Mo.App. 321. (3) The witness, Bridges, was permitted to describe and define option dealing and give his idea of what an option deal is. This was error. Russ v. Railroad, 112 Mo. 45. (4) Defendant's demurrer to the evidence offered by the state should have been sustained. There is no evidence tending to show the commission of any offense in Saline county, or that the commission firm in Chicago ever received the telegram or offered to buy or sell any grain for defendant. (5) The sending of a telegram to a commission firm in a city requesting the firm to buy or sell grain, is not of itself a wrongful act, and raises no presumption that it was done with any specific intent. Where the statute makes the offense to consist of an act coupled with a specific intent -- the intent as well as the act must be found by the jury as a matter of fact before a conviction can be had. State v. Gibson, 111 Mo. 92. (6) The court erred in giving instruction numbered 1 for state. There was no evidence upon which to base said instruction. There was no evidence of any kind that defendant bought any grain of, or sold any to, the firm of J. A. Edwards & Company of Chicago, or that he offered or pretended to buy or sell grain to said firm. The said instruction is also fatally defective in this: it states that the defendant is guilty, if he offered to buy or sell grain. The indictment charges that he bought and sold, and does not charge that he offered to buy or sell grain. The instruction should respond to the indictment. Section 3941, R. S. 1889. It erroneously left the trial court, as a matter of law, to determine the venue of the alleged crime. State v. Sanders, 106 Mo. 188. (7) Instruction numbered 3 is misleading and a comment upon the evidence. This instruction is predicated upon the theory that the sending of a telegram to a commission firm, asking the firm to buy or sell grain, is an unlawful act and raises a presumption that it was done with a specific intent. This is not the law. "The rule is firmly established, indeed it is elementary, that, where, as here, the statute makes an offense to consist of an act coupled with a specific intent, the doing of the act raises no presumption that the act was done with a specific intent." State v. Gibson, 111 Mo. 92. The doing of an unlawful act might raise a presumption of specific intent, but the doing of an act which is not wrong or unlawful, never raises a presumption of specific intent. 3 Greenleaf on Ev., sec. 13.

R. F. Walker, attorney general, for the state.

(1) The indictment in this case is founded upon sections 3931 and 3932, Revised Statutes, 1889, which make the buying or selling of wheat and corn, or the pretended buying or selling of wheat and corn on option or future delivery a misdemeanor. The indictment follows the language of the statute creating the offense, and is sufficient. (2) Neither of these sections is in conflict with the constitution. They do not tend to deprive the citizens of the state of their liberty or property, without due process of law; nor are they obnoxious because they are attempted legislation against trading and dealing in certain specified articles of personal property; nor are they special laws. Connor v. Black, 119 Mo. 126. (3) An examination of the transcript in this case will show that none of the testimony admitted over the defendant's objection in any way affected the rights of defendant. Most of the objections were trivial and without merit, while to a great number of them no reasons were assigned, as is now absolutely necessary in this state. State v. Nelson, 132 Mo. 184; State v. Harlan, 130 Mo. 381. (4) It can not be contended that there is a total failure of proof in this case. The testimony of the telegraph operator at Slater, Missouri, and the gentleman to whom the defendant had admitted his option dealings, clearly establishes his guilt. This court will only interfere with a verdict because of the insufficiency of the testimony when there is a total failure to prove. State v. Fisher, 124 Mo. 462; State v. Punshon, 124 Mo. 448; State v. Banks, 118 Mo. 117.

Robt. M. Reynolds, prosecuting attorney, John G. Miller, assistant prosecuting attorney, and T. H. Harvey, also, for the state.

(1) Sections 3931 and 3932 are not unconstitutional. First. Their enforcement would not tend to deprive the citizens of the state of any liberty or property without due process of law. Second. They do not constitute a special law, because the "dealing in futures" in certain articles of personal property is prohibited. A statute which relates to persons or things, as a class, is a general law, while a statute which relates to particular persons or things of a class, is special. State ex rel. v. Tolle, 71 Mo. 650; State ex rel. v. Herrmann, 75 Mo. 346; Lynch v. Murphy, 119 Mo. 172. Third. Section 3932 is not a special law tending to regulate the practice in judicial proceedings and change the rules of evidence in such proceedings. Eyerman v. Blaksley, 78 Mo. 145; State v. Jackson, 80 Mo. 175; State ex rel. v. Miller, 100 Mo. 439; State v. Buck, 120 Mo. 479. (2) Witness Bridges testified positively that he was acquainted with the custom of dealing in grain known as dealing in futures, and his evidence as to what the process was, was entirely competent and legitimate. (3) The sending of the telegrams by defendant, as described by the witness Price, was abundant evidence that defendant offered, in Saline county, to buy or sell grain, and by the provisions of section 3932 that was all that was necessary to make the offense complete. Beside, witness Bridges testified that defendant was engaged in both actual and future grain business. (4) The intent of the defendant was a question for the jury and was properly submitted to them in instruction number 3 on the part of the state. (5) Instruction numbered 1, on the part of the state, was proper and was not error. The evidence of witness Price as to the telegrams sent by defendant and his admissions, as proved, were sufficient evidence that defendant offered or pretended to buy or sell grain to J. A. Edwards & Company. Defendant's offer to buy or sell is all that is necessary under the provisions of section 3932. "When the evil intent is supplemented by the requisite act toward its commission, the offense is complete." State v. Hayes, 78 Mo. 307. The trial court did not determine the venue in said instruction. (6) Instruction number 3 is neither misleading nor a comment upon the evidence. "Intent, being an operation of the mind, can not be discovered or revealed in the great majority of cases, except by acts, and from acts alone, unaccompanied by a single word, guilty intent is infused into the prosecution of crimes of the highest grade." State v. Patterson, 116 Mo. 505. The question of intent was one for the jury on the whole case, and the court so declared.

OPINION

Sherwood, J.

The defendant appeals to this court, having been convicted under the provisions of sections 3931 and 3932, Revised Statutes, 1889, of the crime of what is colloquially called "dealing in options," and was fined in the sum of $ 300.

The appeal to this court, as the offense charged is only a misdemeanor, proceeds on the theory that those sections are unconstitutional.

Those sections are as follows:

"Sec 3931. Option dealing prohibited -- Punishment for. -- All purchases and sales or pretended purchases and sales or contracts and agreements for the purchase and sale, of the shares of stocks or bonds of any corporation, or petroleum, provisions, cotton, grain or agricultural products whatever, either on margin or otherwise, without any intention of receiving and paying for the property so bought, or of delivering the property so sold, and all the buying or selling or pretended buying or selling of such property on margins or on optional delivery, when the party selling the same or offering to sell the same, does not intend to have the full amount of the property on hand or under his control...