State v. Mitnick

• Decision Date: 30 June 1936
• Citation: 96 S.W.2d 43,339 Mo. 127
• Parties: The State v. Samuel A. Mitnick, alias Sam Meyers, alias Sam Massell, Appellant
• Court: Missouri Supreme Court

96 S.W.2d 43

339 Mo. 127

The State v. Samuel A. Mitnick, alias Sam Meyers, alias Sam Massell, Appellant

Supreme Court of Missouri

June 30, 1936

Appeal from Circuit Court of City of St. Louis; Hon. Granville Hogan, Judge.

Reversed and remanded.

Sigmund M. Bass for appellant; Verne R. C. Lacy of counsel.

(1) An information which charges but one sale of securities is insufficient to charge an engaging in the business of selling securities. Secs. 655, 7724, 7744, 7748, R. S. 1929; State v. Fenley, 275 S.W. 43; State v Wolfner, 2 S.W.2d 592; Morningstar v. State, 135 Ala. 66, 33 So. 486; State v. Robertson, 136 N.C. 587, 48 S.E. 595; Semple v. Schwarz, 130 Mo.App. 65, 109 S.W. 636; State v. Summerland, 185 N.W. 255; State v. Wade, 267 Mo. 249, 183 S.W. 599. (a) An information charging a statutory offense is insufficient unless it follows the language of the statute describing the elements constituting the offense. Secs. 7724 (g), 7744, R. S. 1929; State v. Anderson, 250 S.W 71; State v. Wolfner, 2 S.W.2d 592. (b) A defendant is entitled to be discharged from an information which alleges that certain matters are unknown, when it appears at the trial that these matters were known. State v Stowe, 132 Mo. 199, 33 S.W. 802; State v. Krebs, 80 S.W.2d 196. (2) The admission of evidence that throws no light on any material matter at issue, and that tends to inflame the jury, is prejudicial and reversible error. State v. Creed, 252 S.W. 681; State v. Dixon, 253 S.W. 749.

Roy McKittrick, Attorney General, and Drake Watson, Assistant Attorney General, for respondent.

(1) The information is sufficient and charges the crime according to the statute. Secs. 7724, 7744, 7752, R. S. 1929; State v. Kentner, 178 Mo. 492; State v. Miller, 93 Mo. 268; State v. Sanford, 317 Mo. 871. (2) There was no evidence admitted that tended to inflame the jury.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

By information filed in the Circuit Court of the City of St. Louis the defendant was charged with having violated the Missouri Securities Act by engaging in the business of selling securities without being registered as a dealer. He was convicted, sentenced to five years' imprisonment in the penitentiary and has appealed.

The State's evidence tended to show that defendant sold to one L. M. Carson twenty-five shares of stock issued by the NuGrape Fruit Company, a foreign corporation. Defendant was not registered as a dealer or salesman. He represented to Carson that the stock was worth $ 22.50 to $ 25 per share. Carson signed an agreement to buy the stock and gave defendant in consideration therefor $ 25 in cash and a lot of old stock certificates for stock, practically worthless, in several corporations. He testified that he never received the NuGrape stock, but the transaction constituted a sale as defined in the Securities Act. The State also proved similar sales, not charged in the information, made by defendant to three other persons; this, evidently, on the theory that in order to show an engaging in the business of selling securities it was necessary to prove more than one sale.

I. The information herein attempts to charge violation of Section 7744, Revised Statutes 1929 (Mo. Stat. Ann., p. 7391), which is part of an act passed in 1929, known as the Missouri Securities Act, now constituting Chapter 40, Sections 7724 to 7757, inclusive, Revised Statutes 1929 (Mo. Stat. Ann., pp. 7370 et seq.). The portion of said Section 7744 alleged to have been violated reads:

"No dealer or salesman shall engage in business in this state as such dealer or salesman or sell any securities including securities exempted in Section 7726 of this chapter and excluding those mentioned in Section 7727 of this chapter, unless he has been registered as a dealer or salesman in the office of the commissioner pursuant to the provisions of this section."

By Section 7748 such violation is made a felony, punishable by a maximum penalty of five years' imprisonment in the penitentiary.

Section 7744 provides at length and in detail for the registration in the office of the supervisor of corporation registration, called "Commissioner," of dealers in and salesmen of securities, but it does not define "dealer" or "salesman." Those and other terms are defined in Section 7724.

"'Dealer' shall include every person other than a salesman who in this state engages either for all or part of his time directly or through an agent in the business of selling securities issued by another person or purchasing or otherwise acquiring such securities from another for the purpose of reselling them or of offering them for sale to the public, or offering, buying, selling or otherwise dealing or trading in securities as agent or principal for a commission or at a profit, or who deals in futures or differences in market quotations of prices or values of any securities or accepts margins on purchases or sales or pretended purchases or sales of such securities; provided that the word 'dealer' shall not include a person having no place of business in this state who sells or offers to sell securities exclusively to brokers or dealers actually engaged in buying and selling securities as a business."

By paragraph (c) of Section 7727 it is provided that the act shall not apply to the sale of any securities "In an isolated transaction in which any security is sold . . . by the owner thereof, . . . such sale . . . not being made in the course of repeated and successive transaction of a like character by such owner. . . ."

Omitting formal parts and the allegation of a former conviction, not here material, the information, after alleging that the defendant was not registered as a dealer in or salesman of securities, charges that he "did then and there unlawfully, knowingly, willfully and feloniously engage in the business of selling securities as a dealer in securities, and, knowingly, willfully and feloniously, then and there, directly and personally, for and in consideration of the sum of, towit: twenty-five dollars, lawful money of the United States, and certain securities known as forty-nine shares of the stock of the Central Petroleum Corporation and other stocks and securities, the description of which is unknown to this affiant, then and there had, received and acquired by him, the said Samuel A. Mitnick alias, etc., from one L. M. Carson he, the said Samuel A. Mitnick alias, etc., unlawfully, knowingly, willfully and feloniously did sell to said L. M. Carson certain securities to-wit: twenty-five shares of stock known as stock issued by the NuGrape Company of America."

Summarized, the information charges that defendant "did . . . engage in the business of selling securities as a dealer in securities and . . . did sell" to L. M. Carson, at one time, certain named securities.

Appellant contends that the information fails to allege facts sufficient to charge an offense, -- a contention with which we agree. Respondent urges that it follows the language of the statute and is sufficient. We have often held indictments and informations sufficient which charged statutory offenses in substantially the language of the statutes creating them, when the statute in question set forth the constituent elements of the offense. But the statement that a statutory offense may be charged in the language of the statute cannot be applied indiscriminately. The rule is thus stated in State v. Kentner, 178 Mo. 487, 493, 77 S.W. 522, quoting from Wharton's Criminal Pleading and Practice (9 Ed.), section 220:

"'On the general principles of common-law pleading, it may be said that it is sufficient to frame the indictment in the words of the statute, in all cases when the statute so far individuates the offense that the offender has proper notice, from the mere adoption of statutory terms, what the offense he is to be tried for really is. But in no other case is it sufficient to follow the words of the statute. It is no more allowable, under a statutory charge, to put the defendant on trial without specification of the offense, than it would be under a common-law charge.'"

In State v. Wade, 267 Mo. 249, 256, 183 S.W. 598, 599, this court en banc, said: "The organic law entitles every person charged with crime to be informed of the nature and cause of the accusation against him, and . . . in criminal pleading nothing material can be left to intendment or implication. Where a crime is created by statute, the charge must be such as to specifically bring the accused within the material words thereof." In the same case it is further said that the State cannot prove what it has not properly alleged; and in State v. Wolfner, 318 Mo. 1068, 1077, 2 S.W.2d 589, 592, the court en banc said: "For the purpose of determining the sufficiency of the information what is not alleged therein does not exist."

Tested by these principles the information before us is insufficient. It attempts to charge defendant with having engaged in the business of selling securities as a dealer and with having made a sale as such dealer. But one sale is charged to have been made. The statute, Section 7724, defines a dealer as a person engaged in the businesses therein referred to "for all or a part of his time," an allegation not found in the information. But assuming, without deciding, that a charge of being "engaged in the business" would necessarily include being so engaged for "all or a part" of the time, we think it obvious, from the wording...