State v. Blakemore

• Court: Missouri Supreme Court
• Writing for the Court: FOX, J.
• Citation: State v. Blakemore, 226 Mo. 560, 126 S.W. 429 (Mo. 1910)
• Decision Date: 15 March 1910
• Parties: THE STATE, Appellant, v. ARTHUR H. BLAKEMORE

126 S.W. 429

226 Mo. 560

THE STATE, Appellant, v. ARTHUR H. BLAKEMORE

Supreme Court of Missouri, Second Division

March 15, 1910

Appeal from St. Louis City Circuit Court. -- Hon. Chas. C. Allen Judge.

Reversed and remanded.

Elliott W. Major, Attorney-General, and Jas. T. Blair, Assistant Attorney-General, for the State.

(1) The indictment is, in both form and substance, practically identical with indictments heretofore approved by this court. State v. Wissing, 187 Mo. 99; State v Shour, 196 Mo. 205; State v. Gebhardt, 219 Mo 713; State v. Lipscomb, 160 Mo. 131; State v. Larew, 191 Mo. 194. (2) The allegation as to the money embezzled and its value, is sufficient. R. S. 1899, secs. 2531, 2535. (3) It was not necessary to state the character of the business in which the corporation, named in the indictment as the owner of the embezzled money, was engaged. State v. Lipscomb, 160 Mo. 138; R. S. 1899, secs. 1912, 8000; State v. Whitworth, 30 Wash. 48; Taylor v. Com., 119 Ky. 743. (4) The indictment follows the language of the statute. This is sufficient. State v. Mohr, 68 Mo. 304; State v. Lipscomb, 160 Mo. 138; State v. Larew, 191 Mo. 194; R. S. 1899, secs. 1912 and 8000. (5) Numberous objections to a similar indictment were answered in State v. Larew, 191 Mo. 194. (6) The averment as to defendant's agency is sufficiently definite. State v. Meyers, 68 Mo. 267. (7) One ground of the demurrer is that the "indictment does not allege that The Reserve Loan Life Insurance Company was, or is, authorized to do business in the State of Missouri." (Sec. 7883, R. S. 1899.) The company is alleged to be organized under the laws of Indiana. The identical question presented has undergone judicial investigation heretofore. State v. Reynolds, 65 N. J. L. 426. The statute requiring foreign corporations to take out license to do business in this State was not designed by "the General Assembly to make booty of the property of a corporation which does not comply with the provisions of the act." State v. Pohlmeyer, 59 Oh. St. 495; Com. v. Shober, 3 Pa.Super. Ct. 557; R. S. 1899, sec. 7883. (8) Both the agent who transacts business in this State for an unlicensed insurance company and such company maintaining agencies in the State, are liable to penalties under sections 8000 and 8002, R. S. 1899. (9) The statute specifically points out what constitutes one an agent of a company not authorized to do business in Missouri. R. S. 1899, sec. 8000. (10) But though the insurance company mentioned in the indictment be assumed to be without a license to do business in Missouri, and though it be assumed also that the particular money embezzled by defendant was obtained by him in the transaction for the company of business which the company was not authorized to transact in Missouri, and that the transaction itself was an offense, yet, under the decided cases, defendant could not escape on this ground. State v. Shadd, 80 Mo. 362; State v. Cunningham, 154 Mo. 176; Insurance Co. v. Railroad, 149 Mo. 178; Com. v. Shober, 3 Pa.Super. Ct. 557; State v. Pohlmeyer, 59 Oh. St. 496; State v. Silva, 130 Mo. 462; State v. Hoshor, 26 Wash. 654; State v. Whitworth, 30 Wash. 49; State v. Spaulding, 24 Kan. 8. (11) Unlicensed companies may lawfully transact certain business in Missouri. R. S. 1899, sec. 7996; Insurance Co. v. Railroad, 149 Mo. 178. It would not do to assume, on motion to quash, that the company was unlicensed, and that the money collected was the proceeds of unauthorized business, etc., even if those facts, if specifically set up, would invalidate the indictments. No such facts are pleaded in the indictment in this case.

Keith Ryan and Jesse A. Wolfort for respondent.

(1) The Federal and State Constitutions provide, and it is the law of this State, that an indictment shall not be so indefinite and vague with regard to the particular offense charged as to deprive the accused of the opportunity to prepare a defense. Federal Constitution, amendment 6; Missouri Constitution, art. 2, sec. 22; 1 Chitty, Crim. Law, p. 169; May's Crim. Law, chap. 2, 79, sec. 100; State v. Stowe, 132 Mo. 199; State v. Burke, 151 Mo. 136; State v. Meysenburg, 171 Mo. 1; United States v. Cruikshank, 92 U.S. 542; State v. Barbee, 136 Mo. 440; State v. Terry, 109 Mo. 601; State v. McGinnis, 126 Mo. 564. (2) An indictment must describe the offense charged so clearly and particularly that the defendant may avail himself of it if he is again prosecuted for the same act or acts. Federal Constitution, amendment 5; Missouri Constitution, art. 2, sec. 23; May's Crim. Law, chap. 2, sec. 100, p. 79; State v. Snyder, 98 Mo. 555. (3) If facts were unknown to the grand jury, the indictment should have so stated. State v. Stowe, 132 Mo. 199; State v. Burke, 151 Mo. 136; State v. Krueger, 134 Mo. 272; State v. Thompson, 137 Mo. 620. (4) Where fraud is charged, the facts making up the fraud must be pleaded. Hoester v. Sammelmann, 101 Mo. 619; Smith v. Sims, 77 Mo. 269; Nichols v. Stevens, 123 Mo. 96; Redpath v. Lawrence, 42 Mo.App. 101. (5) A foreign corporation can have no legal existence beyond the bounds of the State or sovereignty by which it is created. Under the foregoing principle and the law of the State, a foreign corporation must comply with and observe the laws of this State before it may engage in business in this State. Cleaton v. Emery, 49 Mo.App. 345; Fay Fruit Co. v. McKinney, 103 Mo.App. 304; R. S. 1899, secs. 1024, 1025, 1026.

OPINION

FOX, J.

On December 4, 1908, the grand jury in and for the city of St. Louis, returned into open court an indictment, of which the following, the caption being omitted, is a copy:

"The grand jurors of the State of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn and charged, upon their oath present: that Arthur H. Blakemore, on the fourth day of November, one thousand nine hundred and eight, at the city of St. Louis aforesaid, being then and there the agent, clerk, collector and servant of The Reserve Loan Life Insurance Company, a corporation duly organized and existing under the laws of the State of Indiana, the said Arthur H. Blakemore (not being then and there a person under the age of sixteen years), then and there by virtue of such employment and office of agent, clerk, collector and servant, as aforesaid, did have, receive and take into his possession and under his care and control, certain money, to the amount and value of thirty-five and fifty-five one hundredths dollars, the same being then and there lawful money of the United States, of the value of thirty-five and fifty-five one hundredths dollars, the money and personal property of the said The Reserve Loan Life Insurance Company, a corporation, as aforesaid, the employer of him the said Arthur H. Blakemore, and that the said Arthur H. Blakemore, the said money then and there unlawfully, feloniously, fraudulently and intentionally did embezzle and convert to his own use without the assent of the said The Reserve Loan Life Insurance Company, a corporation, as aforesaid, the owner of said money, and with the unlawful, felonious and fraudulent intent then and there to deprive the owner, the said The Reserve Loan Life Insurance Company, a corporation, as aforesaid, of the use thereof, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State."

At the succeeding term, to which the cause had been continued, the defendant filed the following motion to quash:

"Comes now the defendant by his attorneys and moves the court to quash the indictment filed herein because:

"1. The facts alleged therein constitute no offense.

"2. The indictment does not allege in what business 'The Reserve Loan Life Insurance Company' was, or is, engaged in the State of Indiana, or any other state.

"3. That said indictment does not allege that 'The Reserve Loan Life Insurance Company' was, or is, authorized to do business in the State of Missouri.

"4. Said indictment is so indefinite and vague as to the alleged offense as to deprive the accused of the opportunity to prepare a defense.

"5. Said indictment violates the sixth amendment of the Federal Constitution, which provides: 'In all criminal prosecutions the accused shall enjoy the right to be informed of the nature and cause of the accusation.'

"6. Said indictment violates section 22 of article 2 of the Constitution of the State of Missouri, which provides: 'In criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation.'

"7. Said indictment is so indefinite and vague as to the particular offense therein charged that an acquittal thereunder would not bar another prosecution for the same alleged offense.

"8. Said indictment violates article 5 of the Federal Constitution which provides: 'Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.'

"9. Said indictment violates section 23 of [126 S.W. 430] article 2 of the Constitution of Missouri, which provides: 'That no person shall after being once acquitted by a jury be again, for the same offense, put in jeopardy of life or liberty.'

"10. Said indictment does not allege or set out any specific or particular fraudulent act or acts, but contains broad and general allegations of fraud which are legal conclusions, and therefore insufficient and incompetent."

This motion was sustained, the indictment quashed and the defendant discharged. Thereupon the State appealed to this court.

At the same term a bill of exceptions embodying the motion, the court's rule thereon and the State's exceptions to such ruling, was filed.

This sufficiently presents the record before us for consideration.

OPINION.

I.

The...