Anderson v. State
| Decision Date | 16 May 1907 |
| Docket Number | 395. |
| Parties | ANDERSON v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Before a reviewing court is authorized to pass upon the constitutionality of an act of the General Assembly, it must appear that the question was made or presented in the court below and was passed upon by the trial judge; also the alleged repugnancy of the statute to some portion of the Constitution must be specifically asserted.
(a) An allegation of the repugnancy of a statute to the Constitution is not sufficiently specific, unless the clause or paragraph of the Constitution claimed to be violated is set out.
(b) No constitutional question is properly presented in this case.
[Ed Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2619.]
An indictment is sufficient which states the offense in the terms or language of the statute, or so plainly that the nature of the offense charged may be easily understood by the jury.
[Ed Note.-For cases in point, see Cent. Dig. vol. 27, Indictment and Information, § 182.]
By Pen Code 1895, § 1039, a definite punishment is prescribed for "every crime declared to be a misdemeanor." The effect of this section is not merely confined to the misdemeanors enumerated in the Code, but has a prospective force.
A place where futures are bought and sold on margins is a gaming house.
(a) This is true, although "the contracts are telegraphed out of the state," if the actual wagering or the settlement of the wagers take place in this state.
(b) The Boykin act (Acts 1906, p. 95) has withdrawn from the business of dealing in futures on margins whatever legislative sanction there was to be implied from the fact that by the tax act of the state a license tax had been imposed upon "bucket shops."
(c) An assertion, although made in each transaction, by the customers of an office where futures are bought and sold that actual delivery is contemplated and understood in all cases, will not prevent the keeper of the office from being guilty of maintaining a gaming house, if as a matter of fact the customers, throughout a continued course of dealings, do not make, tender, or accept actual delivery, but, through the proprietor of the office, settle their winnings and losses in money. The actual facts of the case must override the contradictory alleged contemplation of the parties.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 24, Gaming, §§ 199, 200.]
Where an indictment contains two counts, and the defendant has been found guilty on both counts, and only one sentence has been imposed, and the evidence authorizes the conviction, errors assigned relating to one count only are immaterial. In this case the evidence authorized the verdict on both counts. The trial having been entirely free from error as to the count in the indictment charging the maintenance of a gaming house, this court will not pass upon alleged errors in the instructions of the court to the jury in relation to the count charging a violation of the Boykin act, commonly known as the "Anti-Bucket Shop Law."
[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3154.]
Error from Superior Court, Fulton County; L. S. Roan, Judge.
C. N. Anderson was convicted under an indictment charging in one count a violation of the Boykin act (Acts 1906, p. 95), commonly known as the "Anti-Bucket Shop Law," and in another a violation of the statute prohibiting gaming houses, and he brings error. Affirmed.
Anderson, Felder, Rountree & Wilson and Rosser & Brandon, for plaintiff in error.
C. D. Hill, Sol. Gen., T. W. Rucker, and R. R. Arnold, for the State.
This is what is known as the "Bucket Shop Case," being the first to come to this court from a prosecution under the Boykin act (Laws Ga. 1906, p. 95). The title of that act is as follows: "An act to prohibit contracts and agreements for the sale and future delivery of cotton, grain, provisions and other commodities, stocks, bonds and other securities upon margin, commonly known as dealing in futures; to declare such transactions unlawful, and to constitute a misdemeanor on the part of any person, association of persons or corporation participating therein, whether directly or indirectly; to prohibit the establishment, maintenance or operation of any office or other place where such contracts are made or offered; to define what shall constitute prima facie evidence of guilt; to compel all persons participating in such transactions to testify concerning their connection therewith; to provide that no discovery made by any witness which would tend to subject him to conviction or punishment under this act shall be used against such witness in any penal or criminal proceeding, and that he shall be altogether pardoned therefor; to provide that regular commercial exchanges and other bona fide trade organizations may post quotations of market prices, and for other purposes." Section 1 (page 96) provides that "from and after January 1, 1907, it shall be unlawful for any person, association of persons or corporation, either as principal or agent, to establish, maintain or operate an office or other place of business in this state for the purpose of carrying on or engaging in the business, forbidden by this act, commonly called 'dealing in futures on margins,' and any person violating the provisions of this section shall be guilty of a misdemeanor." In section 2 it is provided that "every contract or agreement, whether or not in writing, whereby any person or corporation shall agree to buy or sell and deliver, or sell with an agreement to deliver, any wheat, cotton, corn or other commodity, stock, bond, or other security to any other person or corporation when in fact it is not in good faith intended by the parties that an actual delivery of the articles or thing shall be made, is hereby declared to be unlawful, whether made or to be performed wholly within this state or partly within and partly without this state; it being the intent of this act to prohibit any and all contracts or agreements for the purchase or sale and delivery of any commodity or other thing of value on margin, commonly called 'dealing in futures,' when the intention or understanding of the parties is to receive or pay the difference between the agreed price and the market price at the time of settlement: provided, that nothing herein contained shall be construed to apply to transactions by mail or wire between persons in this state, and persons outside this state where the person outside this state is not represented in this state by any broker, agent or attorney in said transaction." Section 3 makes any person who shall become a party to any of such contracts, personally or as agent, directly or indirectly, or who shall do anything to aid or further such an agreement, guilty of a misdemeanor. Section 4 makes participants competent witnesses and provides immunity from punishment for such as are called to testify. Section 5 (page 97) makes proof of certain things prima facie evidence of guilt of a violation of sections 2 and 3. Section 6 is as follows: "Proof that anything of value agreed to be sold and delivered was not actually delivered, and that one of the parties to such agreement deposited or secured, or agreed to deposit or secure, what are commonly known as 'margins,' shall constitute prima facie evidence of a contract declared unlawful by the terms of this act." Section 7 provides that "proof that any person, association of persons or corporation, either as principal or agent, has established an office or place where are posted or published from information received the fluctuating prices of cotton, grain, provisions, stocks, bonds or other commodity or thing of value, or either of them, shall constitute prima facie evidence of guilt of the offense or offenses prohibited in section 1 of this act." And section 8: "This act shall not be so construed as to prevent or render unlawful the posting or publishing of market quotations or prices of commodities, stocks, bonds, and securities by any regularly organized commercial exchange or other bona fide trade organization in which no purchase or sale for future delivery on margin is permitted; that no person or corporation committing any of the acts or things prohibited in defense thereof to plead the payment of any license or other tax to the state, or to any county or municipality thereof, nor shall the payment of any license or other tax in any wise operate to relieve such offender from the penalties imposed by this act." Conflicting laws are repealed.
The indictment contained two counts, one under this act and the other one under the statute prohibiting gaming houses. The substance of the first count is that the defendant, with others, "in the county aforesaid, on the 25th day of January, in the year of our Lord, 1907, with force and arms did establish, maintain, and operate an office and place of business for the purpose of carrying on and engaging in the business commonly called 'dealing in futures on margins,' and did then and there, in said office and place of business established for the purpose aforesaid, maintain and operate and engage in a business commonly called 'dealing in futures on margin."' The second count charges that the same persons did, "in the county aforesaid, on the day aforesaid, keep and maintain a gaming house." The defendant demurred to the first count of the indictment, on the following grounds: ...
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