State v. Miner
| Decision Date | 07 March 1911 |
| Parties | THE STATE v. FRANK J. MINER, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Geo. C. Hitchcock Judge.
Reversed and remanded.
Chester H. Krum, Henry S. Priest, A. M. Frumberg and Thos. B. Harvey for appellant.
(1) The Act of March 18, 1907, is inoperative and void for uncertainty. No standard or test is afforded by which to determine when the denounced transaction, innocent in itself becomes criminal. Bish., Stat. Cr. (3 Ed.), sec. 41; 26 Am. & Eng. Ency. Law, 656; Black on Interpretation of Laws, 336; State v. Partlow, 91 N.C. 550; Cook v State, 26 Ind.App. 278; Augustine v. State, 41 Tex. Crim. Rep. 59; State v. Mann, 2 Ore. 241; State ex inf. v. Railroad, 146 Mo. 155; State ex rel. v Ashbrook, 154 Mo. 393; Endlich, Int. of Statutes, p. 11; Railroad v. Dey, 34 F. 876; United States v Sharp, 27 Fed. Cas. 1043; United States v. Brewer, 139 U.S. 288; Jackson, ex parte, 45 Ark. 164. (2) The act is obnoxious to the provisions of the State and Federal Constitutions. It deprives of liberty and property "without due process of law." The law forbids buying and selling without imposing any conditions or limitations which would render the transactions harmful or criminal. And if it attempted to qualify the right to buy and sell, the qualification must be such as would evidently result in the public wrong denounced. People v. Gillson, 189 N.Y. 389; Long v. State, 74 Md. 565; State v. Hartley, 185 Mo. 671; 8 Cyc. 864 (B.); Bishop, Stat. Cr. (3 Ed.), sec. 858; U.S. Constitution, 14 Amendment, sec. 1; Mo. Constitution, art. 2, sec. 30. (3) The offense which the evidence tended to establish was a misdemeanor only. R. S. 1909, secs. 4780-4782; Yall v. Gillham, 187 Mo. 393; Evans v. McFarland, 186 Mo. 373; State ex rel. v. Wilder, 197 Mo. 27; State v. Kessels, 120 Mo.App. 243; Sikes v. Railroad, 127 Mo.App. 335; Sutherland, Stat. Cons., secs. 283-284, 288 and 327; State v. Green, 87 Mo. 583; State ex rel. v. Foster, 187 Mo. 609; Potter's Dwarris, 272-273; Bishop, Stat. Cr. 126. (4) The indictment fails to allege that the criminal act was done feloniously. State v. Feaster, 25 Mo. 324; State v. Gilbert, 24 Mo. 380; State v. Emerlich, 87 Mo. 115; State v. Herrall, 97 Mo. 108; State v. Williams, 184 Mo. 264; State v. Woodward, 191 Mo. 626; State v. Willard, 219 Mo. 721. (5) The indictment does not sufficiently state any offense. State v. Hayward, 83 Mo. 304; State v. Davis, 70 Mo. 468; Bishop, Cr. Proc., sec. 566; State v. Cox, 29 Mo. 476; State v. Krueger, 134 Mo. 272; State v. Burke, 157 Mo. 136; State v. Pickett, 174 Mo. 668; State v. Cameron, 216 Mo. 420; State v. Stowe, 132 Mo. 205; State v. Barbee, 136 Mo. 440; State v. Franken, 148 Mo. 143; U. S. Constitution, 6 Amendment; Mo. Constitution, art. 2, sec. 22. (6) The statute upon which the indictment is based is unconstitutional and void. 1. Unconstitutional. a. The subject of the act is not clearly expressed in the title. b. The subject-matter of definition in section two is beyond the police prerogatives of the Legislature. A mere pretense to make a sale, etc., cannot lawfully be declared to be gambling. State v. Hartley, 185 Mo. 669; Long v. State, 74 Md. 565; People v. Gilson, 109 N.Y. 389; Railroad v. Jacksonville, 67 Ill. 37; Yellowstone Kit v. State, 88 Ala. 196; 8 Cyc. 864B. 2. Void -- for uncertainty. a. "Otherwise" -- meaningless term. b. Part following wherein, applicable to trades made elsewhere than in place complained of, thereby rendering senseless the section defining the crime. c. No tangible meaning to be attributed to "pretended to buy or sell," or "went through the form of buying or selling." Judges and juries would naturally differ in the application of the law. State v. Light Co., 212 Mo. 109; State ex rel. v. Ashbrook, 154 Mo. 375; State ex rel. v. Railroad, 146 Mo. 155; Cook v. State, 26 Ind.App. 278; State v. Partlow, 91 N.C. 550; 26 Am. & Eng. Ency. Law, 656. d. Rule of grammatical construction applied to statute renders it absolutely senseless. Wherein applies to part of section immediately preceding that word. State ex rel. v. Railroads, 215 Mo. 479. e. The statute violates both the Constitution of Missouri and that of the United States. (7) The indictment is wholly insufficient and violates the "well-settled principle of law," that before one can lawfully be convicted of a criminal offense there must have been preferred against him a "clear legal charge." 1. It is a mere copy of the section which defines the crime. 2. The place kept is not alleged. State v. McLaughlin, 160 Mo. 40; Wheat v. State, 6 Mo. 455; State v. Welsh, 28 Mo. 600; State v. Hogan, 31 Mo. 340; State v. Wacker, 16 Mo.App. 420. 3. The indictment is a mere copy of a statute which does not individuate the offense. State v. Burke, 151 Mo. 142; United States v. Cruikshank, 92 U.S. 542; State v. Meysenburg, 171 Mo. 25; State v. Krueger, 134 Mo. 262; State v. Watson, 206 Mo. 420; State v. Stowe, 132 Mo. 199; State v. Fraker, 148 Mo. 143; State v. Barbee, 136 Mo. 440; State v. Pickett, 174 Mo. 668; State v. Cameron, 216 Mo. 420. 4. The indictment is merely a series of recitals and destitute of all averment of fact. "Pretended to buy and sell" -- without an averment of fact. "Went through the form of buying and selling" -- without an averment of fact. These recitals do not even allege that "pretended to buy," etc., was feloniously done. State v. Truley, 142 Mo. 409; State v. Fairlamb, 121 Mo. 154; State v. Clayton, 100 Mo. 519; State v. Weldon, 70 Mo. 574; State v. Feazell, 132 Mo. 181; State v. Green, 111 Mo. 587; State v. Williams, 184 Mo. 264. 5. No person named with whom trade was made; no commodity traded in specified. State v. Burke, 151 Mo. 144; State v. Martin, 108 Mo. 117. 6. No "board of exchange" specified on which prices were fixed. 7. Term otherwise, used in statute, merely recited in haec verba in indictment. The indictment does not contain one averment of fact. It is a mere recital, in the language of the definition set out in the statute, of conclusions made in the absence of facts necessary to be pleaded. It violates every elementary rule of criminal pleading prescribed for the protection and information of the accused, either by the courts or by the Constitution. It falls as far short as one can well conceive of compliance with the rule that it is a "well-settled principle of law" that a "clear, legal charge" must be preferred against one charged with crime. State v. Lawrence, 178 Mo. 350. (8) The instruction in the nature of a demurrer to the evidence should have been given. 1. Appellant indicted as principal -- "as principal unlawfully and feloniously did set up and carry on a bucket shop." Not one word of evidence to such effect. The State proved place set up and carried on by "Merchants' Stock and Grain Company," an existing corporation. 2. Appellant indicted as principal -- only evidence at best was that he was an agent for a corporate principal whose existence the State conclusively proved. 3. Statute requires that fictitious trades should have been at prices fixed by trades on "boards of exchange or otherwise." No evidence on this subject. Not one word tending to prove anything. No evidence that what witnesses spoke of as quotations emanated from a board of exchange or "otherwise." Case of the State a mere blank on the subject. 4. Statute requires that trades on boards of exchange by which prices are to be fixed in the bucket shop must themselves have been fictitious. No evidence on this score -- not one word. (9) The main instruction given by the court was wholly erroneous. 1. It was merely a copy of a wholly insufficient indictment. State v. Roberts, 199 Mo. 529. 2. The meaning of the term otherwise is not explained. State v. Hardelein, 169 Mo. 586. 3. The statute using the words "any person," the same words used in the indictment mean every person, and the instruction should have so indicated and required proof accordingly. It did not so require. 4. The meaning of terms "pretended to buy and sell" and "went through the form of buying and selling" not explained. Imperative that this should have been done. 5. There was no evidence on which to base the instruction. The instruction was and is utterly bad and indefensible. There was no evidence to support it. The instruction merely copied a bad indictment. It did not explain the meaning of terms employed by the statute which most sorely needed explanation. It was not as broad as the statute and did not fully instruct as to the law of the case. It is a marvelous departure from every approved and judicially settled notion of instructing a jury in a criminal case. (10) The instruction as to the meaning of the term sale used in the statute and by the court was erroneous and inconsistent with an instruction given for appellant. 1. The instruction defined a sale to be a transfer of the "absolute and general property" in a thing from one person to another at the time of such sale. This is a merely abstract proposition, but, at best, not applicable. Necessarily, if this were the law a sale for future delivery would be fictitious, and, being fictitious, would be unlawful. 2. The court, however, instructed for the appellant that a sale for future delivery would not of itself be unlawful. 3. To speak of an "absolute and general property" in a thing which may not even be in existence is a legal absurdity. (11) The instruction with reference to accomplices was erroneous. 1. It was a mere general proposition. 2. No one claimed that an accomplice had testified. 3. The appellant was prejudiced because the instruction assumed a crime had been committed. Otherwise there could not have been an accomplice. (12) Instructions one, two and three asked by the...
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