State v. Schwarting

• Decision Date: 07 December 1926
• Docket Number: No. 19687.,19687.
• Citation: 288 S.W. 969
• Parties: STATE v. SCHWARTING.
• Court: Missouri Court of Appeals

288 S.W. 969

STATE v. SCHWARTING.

No. 19687.

St. Louis Court of Appeals. Missouri.

December 7, 1926.

Appeal from St. Louis Court of Criminal Correction; Calvin N. Miller, Judge.

"Not to be officially published."

W. D. Schwarting was convicted of selling stock in violation of the Blue Sky Law, and he appeals. Reversed and remanded.

George A. McDonald, of St. Louis, for appellant.

Frank V. Fania, of St. Louis, for the State.

BECKER, J.

This is an appeal from a conviction on each of two counts contained in an information charging defendant with having sold stock in a domestic corporation in violation of the so-called state Blue Sky Law (Laws of Missouri 1923, p. 200).

The appeal is submitted to us without either assignment of error or joinder in error and without the aid of briefs or argument of counsel. In this situation, in light of section 4106, Revised Statutes of Missouri 1919, it becomes our duty to consider all that appears in the record and to determine whether any error has been committed.

The information charges the defendant with and defendant was tried for two separate and distinct misdemeanors, namely, the sale of certain shares of stock on June 21, 1924, and another sale of stock on July 28, 1924. Under section 4006, Revised Statutes of Missouri 1919, a defendant and the prosecuting attorney with the assent of the court may submit the trial of misdemeanors to the court, "whose finding in all such offenses shall have the force and effect of the verdict of a jury." The record before us shows that the trial court, sitting as a jury, at the conclusion of the case, made the following finding:

"The court will find the defendant guilty as charged and assess his punishment at six months in the workhouse."

This finding of the court is tantamount then to the verdict of a jury in the case, and it is in effect a general verdict in a case wherein the information charges two different and distinct offenses and not the same offense in different forms. In this situation it is no longer open to question but that a general verdict will be held insufficient. State v. McHenry (Mo.) 207 S. W. 808; State v. Standley, 232 Mo. 23, 132 S. W. 1122; State v. Daubert, 42 Mo. 242; State v. Rowe, 142 Mo. 439, 44 S. W. 266; State v. Pace, 269 Mo. 681, 192 S. W. 428; State v. Conway, 241 Mo. 271, 145 S. W. 441; State v. Loeb (Mo.) 190 S. W. 299; State v. Carragin, 210 Mo. 351, 109 S. W. 553, 16 L. R. A. (N. S.) 561; State v. Washington, 242 Mo. 401, 146 S. W. 1164. And as was stated in State v. Standley, supra, though the defendant is not...