State v. Christopher

• Decision Date: 02 December 1927
• Docket Number: No. 26651.,26651.
• Parties: THE STATE v. JAMES K. CHRISTOPHER, Appellant.
• Court: Missouri Supreme Court

2 S.W.2d 621

THE STATE v. JAMES K. CHRISTOPHER, Appellant.

No. 26651.

Supreme Court of Missouri, Division Two.

December 2, 1927.

Appeal from Pettis Circuit Court. — Hon. Allen W. Walker, Special Judge.

AFFIRMED.

Morrison, Nugent, Wylder & Berger and Morris Townley for appellant.

(1) The agreed statement of facts stands as a solemn admission, and the parties are estopped from denying the truth or sufficiency of the facts therein contained. Ozark Land Co. v. Hays, 105 Mo. 153; 38 Cyc. 1934. Inferences may not be drawn contrary to the stipulated facts. Rashall v. Railroad, 249 Mo. 522; Brown v. Brown, 237 Mo. 668; Burge v. Railroad, 244 Mo. 94; George v. Railroad, 213 Mo. App. 668. (2) The facts stipulated show conclusively that the contracts were actually executed on grain exchanges by the defendant as a commission merchant. (a) Definition of the term "broker." 9 C.J. 508; Kansas City v. McDonald, 175 S.W. 917; 25 C.J. 340. (b) Meaning of the word "execute." 23 C.J. 278; Smith v. Williams, 38 Miss. 48; Fire Assn. v. Ruby, 60 Nebr. 216; Brown v. Westerfield, 47 Nebr. 399; Kirby v. Baker, 213 Ala. 12; Tucker v. Helgren, 102 Minn. 382; Embree v. Emmerson, 37 Ind. App. 16. (3) The rules of the exchange were complied with, but in any event a violation of the rules in and of itself would not make the defendant liable to prosecution. (a) The rules were not violated: Board of Trade v. Christy, 198 U.S. 236; Fortenbury v. State, 47 Ark. 188; White v. Smith, 58 N.Y. 522; Kingsbury v. Kirwin, 43 N.Y. Super. Ct. 451; Leman v. Field, 37 Fed. 852; Foster v. Murphy, 135 Fed. 47; Moeller v. McLagen, 60 Ill. 317; Perrin v. Parker, 126 Ill. 201; Knowlton v. Fitch, 52 N.Y. 288; Armstrong v. Bickel, 217 Pa. St. 173; Covell v. Loud, 135 Mass. 41. (b) Where the Federal Government has regulated a subject, it has exclusive control, and the States cannot supplement the regulation. So. Ry. Co. v. Rd. Comm., 236 U.S. 439; Charleston Ry. Co. v. Furniture Co., 237 U.S. 597; Sells v. Railroad, 266 Mo. 155; Lemke v. Farmers Grain Co., 258 U.S. 50; Shafer v. Farmers Grain Co., 268 U.S. 189. (4) Maintenance of the office in Sedalia cannot be separated from the transaction of business on the exchange. Real Silk Hosiery Mills v. Portland, 268 U.S. 225; Jewell Tea Co. v. City of Carthage, 257 Mo. 382; State v. Looney, 214 Mo. 216; Dozier v. Alabama, 218 U.S. 127; Ozark Pipe Line Corp. v. Monier, 266 U.S. 555; Norfolk Railroad Co. v. Pennsylvania, 136 U.S. 114; Heyman v. Hays, 236 U.S. 178; Kansas City v. McDonald, 175 S.W. 917.

North T. Gentry, Attorney-General, and A.M. Meyer, Special Assistant Attorney-General, for respondent.

(1) The Grain Futures Act does not purport to cover the same subject-matter as that which is covered by the Missouri option dealing statute. 42 U.S. Stat. 998; Sec. 3574, R.S. 1919; King & Company v. Horton, 156 N.E. 124. The Federal statute provides for the regulation of grain exchanges under the supervision of the Secretary of Agriculture, where dealing on those exchanges affects or effects the interstate shipment of grain, by preventing "corners" and the fixing of prices by artificial means, to-wit, overtrading in contracts for future delivery. Its purpose is to make detection of price fixing easy and to punish attempts to fix prices by artificial means by the withdrawal of trading privileges — not by criminal process. Its purpose is not either to permit or prohibit transactions in the nature of bets upon the course of those prices. Congress did not enter that field, or entered it only for a limited purpose as stated. Reid v. Colorado, 187 U.S. 148; Savage v. Jones, 225 U.S. 533. The Missouri statute merely defines a crime, which, in the judgment of the Legislature, is similar to keeping a gambling house, a tippling house or a "bucket shop," violation of which promotes gambling and gives play to the gambling instinct with its attendant moral and economic evils. Transactions of the sort inhibited by it cause no grain to move or to be prevented from moving in interstate commerce. Any effect that they may have on interstate commerce is ephemeral, remote and incidental. The main purpose of the statute is to define as a crime an act conducive to moral decay among the people, and its propriety as an internal police regulation is not an open question. It has been in force in this state for more than forty years. State v. Kentner, 178 Mo. 487; State v. Logan, 84 Mo. App. 584; State v. Runzi, 105 Mo. App. 332; Murman v. Rose, 111 S.W. 527. The distinction here made between the fields covered by the two acts is valid and shows that the Federal act does not supersede the State statute. King Co. v. Horton, 156 N.E. 124; M.K. & T. Ry. Co. v. Harris, 234 U.S. 416; Mo. Pac. Ry. Co. v. Larabee Co., 211 U.S. 612; So. Ry. Co. v. Reid, 222 U.S. 436; State v. Railroad Co., 206 S.W. 421; Merchants Exchange v. Missouri, 248 U.S. 365. (2) Even if the State statute covers the same field in any sense, it is in aid of interstate commerce (its effect on interstate commerce being incidental, if existing). Western Union Co. v. Milling Co., 218 U.S. 406; Atlantic Coast Line Railroad Co. v. Mazursky, 216 U.S. 122. (3) Further, even if the Grain Futures Act extended to crimes against the public welfare and public morals of the States, it has been held that one may be amenable under the State criminal code as well as being punished for violations of acts of Congress passed pursuant to the commerce clause, and that for the same act. Morris v. United States, 229 Fed. 519; Cross v. North Carolina, 132 U.S. 131. (4) Further, the state is not bound to permit a transaction regarded by it as inherently dangerous to the health, welfare or morals of its citizens, even though permitted under Federal enactments and relating to interstate commerce. Austin v. Tenn., 179 U.S. 343; License Cases, 5 How. 504; Geiger-Jones Co. v. Turner, 230 Fed. 239; King & Co. v. Horton, supra.

WHITE, J.

This case was appealed to this court, and transferred to the Kansas City Court of Appeals for want of jurisdiction in this court. The Court of Appeals thereafter certified the cause to this court on the ground that its opinion was in conflict with a ruling of the Springfield Court of Appeals in Hawkins v. Railroad, 202 S.W. 1060. We therefore have jurisdiction whether or not such conflict in fact appears. If the court rendering the opinion, or one of its judges, "shall deem" such conflict exists, the certification is authorized. [Art. VI, sec. 6, Amendment of 1884 to Constitution.]

A grand jury in the Circuit Court of Pettis County returned an indictment charging the defendant with violation of Section 3574, Revised Statutes 1919, in that he unlawfully kept an office or place in that county wherein he conducted, and permitted J.B. Sterlin and others to engage in the pretended buying and selling of agricultural products, etc., without any intention to deliver or receive the property as sold or bought.

The defendant filed a motion to quash the indictment. The motion was overruled. A motion to suppress evidence was overruled. A trial was had April 28, 1925, jury waived, the case submitted upon an agreed statement of facts, defendant found guilty, and his punishment assessed at a fine of one thousand dollars. He thereupon appealed.

The facts agreed upon with "such inferences as may properly be drawn therefrom" are as follows:

"1. That defendant is a member of the Board of Trade of Kansas City, Missouri, located at Kansas City, Jackson County, Missouri, and of the Chicago Board of Trade, located at Chicago, Cook County, Illinois. The term `Board of Trade' or `Exchange' it is agreed should be used interchangeably herein and will refer to the Board of Trade.

"2. That said boards of trade are contract markets within the meaning of the Federal Grain Futures Act (42 U.S. St. 998-1003, inc.); that said boards of trade and each of them were and are designated as contract markets by the Secretary of Agriculture of the United States of America prior to January 1, 1924; that said boards of trade and each of them are now and have been since January 1, 1924, and prior thereto operating its contract markets under the regulations of said Secretary of Agriculture, a copy of which said regulation is attached hereto and made a part hereof and marked `Exhibit A.'

"3. That the defendant for several years last past and up to and including the present time, was continuously engaged in the business of buying and selling grain on commissions for various and numerous customers for future delivery. That defendant is a resident of Kansas City, Jackson County, Missouri, with his chief office and place of business in Kansas City. That defendant maintained an office in Sedalia, Pettis County, Missouri, through his agent, one Halley, who was in actual charge of such office or place of business in Sedalia. That defendant furnished the market quotations for his Sedalia office by telegraph from Kansas City and his employee, Halley, displayed the quotations on a blackboard in the office, which separately indicated the current prices of grain at Chicago and Kansas City. Such agent received orders for the purchase of grain, etc., to be executed for the customer on the Kansas City or Chicago Board of Trade, as the customer would direct. Such agent transmitted the orders to the defendant at his office in Kansas City for acceptance. That such orders as were transmitted by the said Halley would be either executed on the Kansas City Board of Trade, or wired to the Chicago office of the defendant for execution on the Chicago Board of Trade where the bulk of the Sedalia business was transacted. That after the execution of the trade wired by the Kansas City office the customer would be duly notified and within a few days receive confirmation of the trade in the regular course of mail from the defendant's Kansas City office. The defendant in carrying on his business at Sedalia rented a room, paid the rent...