State v. Timeus

• Decision Date: 07 February 1911
• Citation: 232 Mo. 177,135 S.W. 26
• Parties: STATE v. TIMEUS.
• Court: Missouri Supreme Court

135 S.W. 26

232 Mo. 177

STATE v. TIMEUS.

Supreme Court of Missouri, Division No. 2.

February 7, 1911.

1. BROKERS (§ 5)—EMPLOYMENT AGENCIES—DECEPTION—SUFFICIENCY OF INFORMATION.

Rev. St. 1909, § 7801, provides that one who agrees to or shall advertise to furnish employment to any person, and in pursuance thereof receives anything of value, and who shall be guilty of any deception to any one applying for employment, or who shall fail within three days to procure acceptable employment for an applicant, and on demand refuse to return the money paid by such applicant, shall be deemed guilty of a misdemeanor. An information charged that accused at a time and place specified agreed with E. to furnish him acceptable employment, and, in pursuance of said agreement, received from E. $5; that accused sent E. to a place named, stating that there was acceptable employment there and that it would be acceptable to the said E., but that such employment was not acceptable to the said E. as he ascertained when arriving at the place named; and that accused failed and refused to return to said E. the $5 for said employment. Held that, if it was intended to charge accused under the latter part of the section, the information was bad, as it contained no allegation that accused failed to procure acceptable employment within three days, or that accused refused upon demand to return the money paid to him by E., and that, if it was intended to charge him under the first part of the section, it was bad for omitting to allege that accused was guilty of deception to the person applying for employment; the statement that the employment was not acceptable to E. being merely an expression of opinion that the employment was not acceptable.

2. CONSTITUTIONAL LAW (§ 46)—DETERMINATION OF CONSTITUTIONAL QUESTIONS.

Where, on appeal in a criminal prosecution, accused challenges the sufficiency of the information and the constitutionality of the statute upon which the information was based, if accused prevails in his first contention, the court will not pass on the constitutionality of the statute under the rule that a court will decline to pass on the constitutionality of a statute, unless the case cannot properly be disposed of on any other theory.

3. INDICTMENT AND INFORMATION (§ 60)— NECESSITY OF CHARGING FACTS.

An indictment or information must charge every essential fact constituting the offense.

Appeal from St. Louis Court of Criminal Correction; Wilson A. Taylor, Judge.

Louis Timeus was convicted of violating Rev. St. 1909, § 7801, making certain acts by employment agents a misdemeanor, and appeals. Reversed, and defendant discharged.

See, also, 135 S. W. 28.

Campbell Allison, for appellant. E. W. Major, Atty. Gen., and Chas. G. Revelle, Asst. Atty. Gen., for the State.

KENNISH, P. J.

The defendant was convicted of violating section 7801, Rev. St. 1909, which declares certain acts of employment agents a misdemeanor, and prescribes a punishment for a violation thereof. Because of constitutional questions having been raised at the trial, the defendant, after unsuccessful motions for new trial and in arrest, was granted an appeal to this court. The defendant filed a motion to quash the information, which was overruled, and in that motion, as well as in the motion for new trial and in arrest, challenged the sufficiency of the information, and the constitutionality of the statute upon which the information was based.

Section 7801, under which the defendant was prosecuted, is as follows: "Every person who shall agree or promise or shall advertise through the public press, or by letter, to furnish employment or situations to any person or persons, and in pursuance of such advertisement, agreement or promise, shall receive any money, personal property or other valuable thing whatsoever, and who shall be guilty of any deception to any person applying for employment, or who shall direct any female applying for employment to any house of prostitution, assignation house or other immoral resort, or who shall fail within three days to procure acceptable employment for an applicant, and upon demand refuse to return the money paid by the applicant for employment, shall be deemed guilty of a misdemeanor. * * *" The charge in the information is: "That Louis Timeus, in the city of St. Louis, on the 26th day of August, 1908, did agree with and promise to one Edward Baron to furnish acceptable employment and to procure a situation to and for said Edward Baron, and, in pursuance of said agreement and promise, did receive of and from the said Edward Baron the sum of five dollars, lawful money of the United States; that the said Louis Timeus did send the said Edward Baron to Alamoosa, Colorado, stating that there was acceptable employment at said place, and that said employment would be acceptable to the said Edward Baron. Whereas, in truth, the said employment was not acceptable to the said Edward Baron, as he ascertained when arriving at Alamoosa,...