State v. Runzi

• Decision Date: 01 March 1904
• Citation: 105 Mo. App. 319,80 S.W. 36
• Parties: STATE v. RUNZI et al.
• Court: Missouri Court of Appeals

80 S.W. 36

105 Mo. App. 319

STATE v. RUNZI et al.

St. Louis Court of Appeals. Missouri.

March 1, 1904.

CRIMINAL LAW — INFORMATION—VERIFICATION —FAILURE TO VERIFY—MOTION TO QUASH— APPEAL — OBJECTION — ALLEGATIONS OF INFORMATION—SUFFICIENCY.

1. An information not verified or supported by the affidavit of one competent to testify, as required by Rev. St. 1899, § 2477, is obnoxious to a motion to quash.

2. The objection cannot be made to the information for the first time on appeal.

3. Rev. St. 1899, § 2339, makes it unlawful for any corporation to keep or cause to be kept any place wherein is permitted the pretended buying or selling of shares of stock of any corporation. Held, that an information under the statute which alleged that defendants kept a place wherein was conducted and permitted the pretended buying and selling of shares of stock, etc., was insufficient, in that it did not allege who permitted the prohibited acts, or that the buying and selling were done with defendants' knowledge.

4. Rev. St. 1899, § 2338, provides that the offense of maintaining a place for the pretended buying and selling of shares of stock, etc., forbidden by section 2337, shall be complete where the person so pretending exhibits any offer to buy or sell, or any statement or quotation of the prices of such property. Held, that an information in the language of the statute was sufficient, inasmuch as the statute itself fully individuates the offense.

5. It was not necessary that the information should describe the particular place where the exhibit was made, it being sufficient to locate it in a certain county.

6. A contention that various counts of the information should be treated as one count, for the reason that the exhibition was a continuous one, was untenable; each exhibition being a violation of the statute.

Appeal from Circuit Court, Montgomery County; E. M. Hughes, Judge.

Charles Runzi and another were convicted of maintaining an establishment for the pretended buying and selling of stocks, etc., and they appeal. Affirmed.

J. D. Barnett and C. H. Krum, for appellants. A. W. Lafferty and Barclay & Fauntleroy, for the State.

BLAND, J.

The first count of the information is as follows: "State of Missouri, County of Montgomery—ss.: In the Circuit Court, at City of Montgomery, May Term, 1903. State of Missouri, Plaintiff, v. Donovan Commission Company, a Corporation, Phillip McDermott, President of Said Corporation, C. E. Hayden, Business Manager of Said Corporation, and Charles Runzi and P. B. Burch, Agents and Employés of Said Corporation, Defendants. First Count. A. W. Lafferty, prosecuting attorney in and for Montgomery county, Missouri, under his oath of office, informs the court that defendants, the Donovan Commission Company, a corporation duly organized and existing under and by virtue of the laws of the state of Missouri, Phillip McDermott, president of the said Donovan Commission Company, C. E. Hayden, business manager of said Donovan Commission Company, and Charles Runzi and P. B. Burch, agents and employés of said Donovan Commission Company, on the 21st day of March, 1903, at and in the county of Montgomery, in the state of Missouri, did then and there unlawfully and willfully keep, and cause to be kept, an office, store, or place wherein was conducted and permitted the pretended buying and selling of shares of stocks and bonds of corporations, petroleum, provisions, cotton, grain, and agricultural products, on margins and otherwise, without any intention of receiving and paying for the property so bought, or of delivering the property so sold, and wherein was conducted and permitted the pretended buying and selling of shares of stocks and bonds of corporations, petroleum, provisions, cotton, grain, and agricultural products, on margins, when the parties selling the same, or offering to sell the same, did not intend to have the full amount of such property on hand or under their control, to deliver upon such sales, and when the parties buying such property, or offering to buy the same, did not intend actually to receive the same, if purchased; against the peace and dignity of the state." The second count is as follows: "A. W. Lafferty, prosecuting attorney in and for Montgomery county, in the state of Missouri, under his oath of office, further informs the court that defendants, the Donovan Commission Company, a corporation duly organized and existing under and by virtue of the laws of the state of Missouri, Phillip McDermott, president of said Donovan Commission Company, C. E. Hayden, business manager of said Donovan Commission Company, and Charles Runzi and P. B. Burch, agents and employés of said Donovan Commission Company, on the 20th day of March, 1903, at and in the county of Montgomery, in state of Missouri, did then and there unlawfully and willfully permit the communication, reception, exhibition, and display upon a blackboard in a certain room, by defendants then and there kept and maintained, statements and quotations of prices of shares of stocks and bonds of corporations, petroleum, provisions, cotton, grain, and agricultural products, with a view to the purchase and sale, and the pretended purchase and sale, and the making of contracts and agreements for the purchase and sale, by themselves and other persons frequenting said room so kept and maintained by defendants, of shares of stocks and bonds of corporations, petroleum, provisions, cotton, grain, and agricultural products, on margins and otherwise, without any intention on the part of themselves or such other persons of receiving and paying for the property so bought, or of delivering the property so sold, and with a view to the buying and selling, and the pretended buying and selling, by themselves and other persons frequenting said room so kept and maintained by defendants, of shares of stock and bonds of corporations, petroleum, provisions, cotton, grain, and agricultural products, on margins, and on optional delivery, without any intention on the part of themselves or such other persons of having the full amount of property so sold, and offering to be sold, on hand or under their control to deliver upon such sales, and without intending actually to receive the full amount of such property, if purchased; against the peace and dignity of the state." There were eight other counts like the second, except as to dates, covering the following dates: February 4, 5, 13, 16, 18, and 20, and March 19 and 24, 1903. There were five additional counts, but, as they were dismissed at the close of the state's evidence, it is not necessary to notice them here. The cause was dismissed as to C. E. Hayden before the trial commenced, and as to the Donovan Commission Company and McDermott at the close of the state's evidence. The issues on the first to the tenth counts, inclusive, were submitted to the jury, who, after hearing the evidence and receiving the instructions of the court, returned the following verdict: "We, the jury, find the defendants guilty under the second count of the information, and we assess their punishment at a fine of three hundred dollars each. And we further find the defendants guilty under the third count of the information, and we assess their punishment at a fine of three hundred dollars each. And we further find the defendants guilty under the fourth count of the information, and we assess their punishment at a fine of three hundred dollars each. And we further find the defendants guilty under the fifth count of the information, and we assess their punishment at a fine of three hundred dollars each. And we further find the defendants guilty under the sixth count of the information, and we assess their punishment at a fine of three hundred dollars each. And we further find the defendants guilty under the seventh count in the information and we assess their punishment at a fine of three hundred dollars each. And we further find the defendants guilty under the eighth count of the information, and we assess their punishment at a fine of three hundred dollars each. And we further find the defendants guilty under the ninth count of the information, and we assess their punishment at a fine of three hundred dollars each. And we further find the defendants guilty under the tenth count of the information, and we assess their punishment at a fine of three hundred dollars each. And we further find the defendants guilty under the first count of the information, and we assess their punishment at a fine of five hundred dollars each. [Signed] W. W. Daniels, Foreman." After unavailing motions for new trial and in arrest of judgment, defendants Runzi and Burch appealed to this court.

1. The information was not verified by the oath of the prosecuting attorney or by the oath of a person competent to testify, nor was it supported by the affidavit of a person competent to testify, as required by section 2477, Rev. St. 1899. The objection to the information, that it was not verified by affidavit was not raised in the trial court by motion to quash, nor was it raised by the motion in arrest of judgment. It is raised for the first time here. It would serve no useful purpose at this time to review and restate the divergent views expressed by our appellate courts in respect to the nature and definition of a criminal information under our state Constitution. I think it is settled by abundant authority that the Legislature of the state has the constitutional right to regulate the procedure by information in criminal cases, and to prescribe a procedure different from that of the common law, and hence has authority to require that informations shall be verified by the affidavits of the prosecuting attorney, or by the affidavit of some person competent to testify as a witness in the case. State v. Bonner (Mo.) 77 S. W. 463; State v. O'Connor, 58 Mo. App. 457; State v. Sayman, 61 Mo. App. 244; State v. Bragg, 63 Mo. App. 22; State v. Hicks (...