Scales v. State

• Decision Date: 22 June 1904
• Citation: 81 S.W. 947
• Parties: SCALES v. STATE.
• Court: Texas Court of Criminal Appeals

81 S.W. 947

SCALES v. STATE.

Court of Criminal Appeals of Texas.

June 22, 1904.

Appeal from Williamson County Court; Chas. A. Wilcox, Judge.

E. G. Scales was convicted of selling futures contrary to the provisions of Pen. Code 1895, art. 377, and appeals. Reversed.

Hogg, Robertson & Hogg and George Clark, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of selling cotton futures, under article 377, Pen. Code, and his punishment assessed at a fine of $250, and 30 days' imprisonment in the county jail; hence this appeal.

Appellant made a motion to quash the indictment on the ground that it failed to allege a sale to any person. This indictment, under the former holdings of this court, would appear to be, in the respect mentioned, vicious. Goldstein v. State, 36 Tex. Cr. R. 193, 36 S. W. 278; Cothran v. State, 36 Tex. Cr. R. 196, 36 S. W. 273. However, those cases on this question have been overruled in Fullerton v. State (Tex. Cr. App.) 75 S. W. 534. In accordance with that decision, it is no longer necessary to allege an actual sale.

Motion was also made to quash the indictment because it alleged more than one offense. The language of the indictment in this respect is as follows: That appellant "on the first of July, 1902, did then and there unlawfully, and on each succeeding day thereafter, until the first of July, 1903, conduct, carry on, and transact a business commonly known as dealing in futures in cotton," etc. The contention is that the statute makes the carrying on of said business an offense for each day it is carried on; the language of the statute in this respect being, "provided that each day such business is carried on or kept shall constitute a separate offense." Under the decisions of some of the states, and in the United States courts, it is allowable, in the prosecution of misdemeanors, to set out a number of misdemeanors in separate counts in the same indictment, and to convict on each or as many as may be proven. And this seems to be the doctrine in this state. Hall v. State, 32 Tex. Cr. R. 474, 24 S. W. 407. In this indictment the separate days are not set out in distinct counts, but it seems that the attempt was here made to charge a separate offense for each day in one count. We believe that the separate occasions should be set out in distinct counts, and the dates and proof should correspond with some degree of particularity, so that, in case of conviction or acquittal, appellant might be secure in his right against being placed in jeopardy again for the same offense. In our opinion, the indictment is vicious in the respect pointed out. And being so, it was not cured by the court confining the prosecution to one day.

Appellant complains that the court erred in refusing to permit him to introduce the charters of the New Orleans and New York Exchanges—being those through which appellant dealt in the purchase and sale of cotton—showing that, under the charter of these corporations, no one belonging to such exchanges was permitted to make a sale of cotton, etc., unless an actual delivery was contemplated. We find in the record a good deal of parol proof of this sort, but the court, in the trial of the case, appears to have ignored this. We think the proof which was excluded should have been admitted. The exchanges, as above stated, were corporations, and could only act in accordance with the provisions of their charter. These provisions indicate not only their power, but method of doing business. The admission of this testimony, of course, would not bind the state, if it was able to show otherwise that appellant through his agents did make sales of cotton futures, the delivery of which was not contemplated by the parties. But in the absence of such proof, a sale through a corporation would be presumed to be in accordance with the power and method prescribed in the charter of the corporation. What we have said with reference to the charters also applies to the rules and regulations adopted by said exchanges.

Appellant contends that the court should have given the special requested instructions asked by him. These instructions raise, in effect, two questions: First, that appellant did not deal in futures—that is, carry on a business in which future contracts for cotton were bought or sold, with no intention of an actual, bona fide delivery of said cotton; second, that what was done by him was not conducting a business for the sale of cotton at Taylor, in Williamson county, but he simply acted as an agent for the parties desiring to sell or purchase cotton, and that the sale was made and consummated in New Orleans or New York, as the case might be. Appellant strenuously insists that the facts presented in the record, and almost without controversy, required the court to give his requested instructions on these subjects. We have examined the record carefully in that respect, and we find appellant's mode of doing business as follows: That a person desiring to purchase cotton for future delivery would come to appellant's office in the city of Taylor, and make request to purchase, say, 100 bales of cotton in the city of New Orleans, for delivery at a future day at a stated price. That he would take the offer, and telegraph to some member of the Cotton Exchange in New Orleans, and that this broker in New Orleans to whom the order was telegraphed would take the same and go upon the exchange in New Orleans, and make the offer to buy the number of bales covered in the order at the prices mentioned therein, and for delivery at the time mentioned in the order, and, if the offer was accepted by any one on the exchange, then the contract would be closed; the broker acting under the instruction sent him by appellant. When the contract was so made, the broker to whom the order had been telegraphed in New Orleans would telegraph the acceptance of the same to the firm of Scales & Co., at Taylor; that the order had been executed, and the contract made for the delivery of the cotton. On receipt of this, notification was given to the purchaser at Taylor by appellant; and thereupon said purchaser would pay to the firm of Scales & Co., at Taylor, the sum of $2 per bale, called "margin," to cover fluctuations in the market price of the cotton. That on every 100 bales of cotton so purchased a commission of $10 was charged by appellant $5 of which he retained, and the other $5 he sent to the broker employed by him in New Orleans. On the payment of this money by the purchaser upon the transaction, the firm of Scales & Co., who at all times kept money to their credit with the broker through whom they dealt at New Orleans, would telegraph to the New Orleans broker that the margin of $2 per bale had been paid to them, and to charge their account with said sum. That if, at any time, the purchaser desired his cotton to be sold, Scales & Co. would telegraph the broker in New Orleans, who would go upon the exchange and sell the contract, if he could so do, at the price stated. That all of such transactions were real, and not fictitious, and that the broker would make...