State v. Runzi
| Decision Date | 01 March 1904 |
| Parties | STATE OF MISSOURI, Respondent, v. RUNZI et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from Montgomery Circuit Court.--Hon. E. M. Hughes, Judge.
AFFIRMED IN PART, AND REVERSED IN PART.
Chester H. Krum and J. D. Barnett, for appellants.
(1) The information is fatally defective, because not verified by the oath of the prosecuting attorney, or some other person, or supported by the affidavit of such person. R. S. 1899, sec 2477; State v. O'Connor, 58 Mo.App. 457; State v. Cayman, 61 Mo.App. 244; State v. Pruett Id. 156; State v. Bragg, 63 Mo.App. 22; State v. Bonner, ___ Mo. ___. Counts two to ten, inclusive do not state offenses. R. S. 1899, sec. 2338. (2) If the case is remanded, the court should direct the trial court to treat counts two to ten, inclusive, not as stating separate offenses, but as covering one transaction.
Barclay & Fauntleroy, for respondent.
(1) It is too late to raise first in this court the objection that no proper verification or collateral support (by affidavit of a third party under section 2478, Laws 1901, p. 139) appeared in the circuit court. Lambert v. People, 29 Mich. 71; State v. Osborn, 54 Kansas 473; Alexander v. Hayden, 2 Mo. 212; Houston's Admr. v. Thompson's Admr. , 87 Mo.App. 68; Naylor v. Chinn, 82 Mo.App. 160; Furrow v. Chapin, 13 Kansas 107; Chidsey v. Powell, 91 Mo. 622. (2) Even if the record showed (and we claim that it does not) a total want of such verification or support, the defect would be, at worst, an irregularity. State v. Chadwick, 10 Oregon 423. (3) Some of the cases above cited indicate that such a defect is not jurisdictional. The information would have been amendable if the objection now assigned had been made in season. State v. Broeder, 90 Mo.App. 167; Kincheloe v. Gorman's Admrs., 29 Mo. 422. (4) The omission of a verification does not affect the "substantial rights of the defendant upon the merits," and is cured by the healing process prescribed for such cases by the statutory Doctor Jeofails. R. S. 1899, secs. 2535, 2481; State v. Patton, 94 Mo.App. 32 (67 S.W. 970); State v. Craig, 79 Mo.App. 416; State v. Bonnie, 85 Mo.App. 462; State v. Fleming, 90 Mo.App. 241. (5) (a) Verification by the prosecuting attorney is not absolutely demanded by the statute; he may base his information "upon the affidavit filed of a private citizen, either with the clerk in vacation or with the prosecuting attorney" (to quote the words of the second division of the Supreme Court). R. S. 1899, sec. 4277; State v. Gregory (Sup. Ct., Mo., Nov. 17, 1902), 76 S.W. 970; State v. Bonner, 77 S.W. 463; State v. Hicks, S.Ct. unreported. Such an affidavit is not a part of the record proper. (b) Its presence or absence can only be shown on appeal by bill of exceptions, and here the record is entirely silent on that point. It is a general rule of practice that an omission to verify a pleading must be made the ground of timely and specific objection or the omission is considered waived. B. & P. R. Co. v. Church, 91 U.S. 127; State v. Duncan, 116 Mo. 288; State v. Smith, 114 Mo. 423; Mercantile Co. v. Burrell, 66 Mo.App. 117; Huntington v. House, 22 Mo. 365; Chidsey v. Powell, 91 Mo. 622; Ruch v. Jones, 33 Mo. 394; Kelly v. Thuey, 143 Mo. 422. (6) Even a recital of the filing of the affidavit is not part of the record proper, and could only become so by bill of exceptions. Phillips v. Jones, 75 S.W. 920. (7) And if there was such a recital or the record is silent on that point the matter would be equally foreclosed from review. State to use v. Mason, 31 Mo.App. 211; State v. Reed, 154 Mo. 122. (8) The information, as a pleading, is not required by law to disclose on its face whether it is founded on such an affidavit of a third party, or on facts verified by the prosecuting officer himself. State v. Ransberger, 106 Mo. 135; State v. Morse, 55 Mo.App. 332. (9) Verification by the prosecuting attorney and, yet more, a collateral affidavit are matters "not necessary to be proved," and therefore (even if viewed as parts of the information) the want of either is not reversible error by reason of the express terms of the statute of jeofails in criminal cases concerning matters not necessary to be proved. State v. McCoy, 162 Mo. 388.
The first count of the information is as follows:
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 employees of said Donovan Commission Company, on the twentieth 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:
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