State v. Toombs

• Decision Date: 20 December 1930
• Docket Number: No. 30652.,30652.
• Citation: 34 S.W.2d 61
• Parties: THE STATE v. ROY C. TOOMBS, Appellant.
• Court: Missouri Supreme Court

34 S.W.2d 61

THE STATE v. ROY C. TOOMBS, Appellant.

No. 30652.

Supreme Court of Missouri, Division Two.

December 20, 1930.

Appeal from Circuit Court of City of St. Louis. — Hon. Harry A. Hamilton, Judge.

REVERSED AND DEFENDANT DISCHARGED.

Abbott, Fauntleroy, Cullen & Edwards for appellant.

(1) The defendant acted in good faith, under the advice of counsel, and instructed the secretary to make a transfer of 9,000 shares. The order proved was not an order to issue new stock, but to make a transfer. State v. Moore (N. II.), 39 Atl. 584; State v. Hurley (Mo.), 234 S.W. 820, 19 A.L.R. 297; Evans v. United States, 153 U.S. 592; Nowy Swiat Pub. Co. v. Misiewicz, 246 N.Y. 58, 158 N.E. 20. (2) The shares of stock issued on January 14, 1928, were valid, even though an equal number of old shares had not been produced and canceled. Secs. 9749, 9739, 9743, 6318, R.S. 1919; Boatmen's Bank v. Able, 48 Mo. 136; Mitchell v. Bank, 220 Mo. App. 229; Mitchell v. Newton County Bank, 282 (Mo. App.) S.W. 732; Merchants' Natl. Bank v. Richards, 6 Mo. App. 454; Trust & Savings Co. v. Lumber Co., 118 Mo. 447; McAllister v. Kuhn, 24 L. Ed. 615, 96 U.S. 87; O'Neil v. Mining Co., 174 Fed. 527, 98 C.C.A. 309, 27 L.R.A. (N.S.) 200; Mapleton Bank v. Standrod, 71 Pac. 119, 8 Idaho, 740, 67 L.R.A. 656, and note; 6 Fletcher, Encyclopedia Corporations, 6331, sec. 3794; Wilson v. Ry. Co., 108 Mo. 588, 32 Am. St. 624. (3) The court erred in excluding the record in the former case because it constitutes former jeopardy, and said ruling violated the Fourteenth Amendment to the Constitution of the United States. R.S. 1919, sec. 4007; Lorton v. State, 7 Mo. 55, 37 Am. Dec. 179, and note; State v. Egglesht, 41 Iowa, 574, 20 Am. Rep. 612; State v. Campson, 157 Iowa, 257, 138 N.W. 473, 42 L.R.A. (N.S.) 967; State v. Moore, 86 Minn. 422, 90 N.W. 787, 61 L.R.A. 819, and note.

Stratton Shartel, Attorney-General, and Edward G. Robison, Assistant Attorney-General, for respondent.

On the plea of former jeopardy we must look to the act (Section 3350) and determine its meaning. It is plain by the terms of said act, that it intended to protect each and every share of the capital stock of said corporation that was issued. If this is the meaning of the section then prior conviction for the procurement of the issuance of another false and fraudulent share of capital stock of said corporation even though issued at the same time and a part of the same transaction, is not a bar to this prosecution, for in the one transaction two separate and distinct crimes were committed. If two offenses grow out of the same transaction and such offenses are separate and distinct, a prosecution for one will not bar a prosecution for the other. 8 R.C.L. 157, sec. 139; 16 C.J. 272, sec. 453; Ebling v. Morgan 237 U.S. 627; State v. Nichols, 44 S.W. 1092; Commonwealth v. Turner, 84 Pa. 65; United States v. Ryan, 216 Fed. 38; Commonwealth v. Browning, 143 S.W. 407; State v. Temple. 194 Mo. 236; State v. Salter, 256 S.W. 1072. The fact that acts happen at the same point of time does not create double jeopardy. Thomas v. U.S. 156 Fed. 913, 17 L.R.A. (N.S.) 731. Authorities to the effect that the State cannot split up its charges have no application to the facts of the case. State v. Laughlin, 180 Mo. 360.

COOLEY, C.

Defendant was tried and convicted in the Circuit Court of the City of St. Louis for violation of Section 3350, Revised Statutes 1919, the indictment charging that on or about January 17, 1928, he, being president of the International Life Insurance Company, a corporation, wilfully, designedly and feloniously procured the signing of a certain false and fraudulent certificate of ownership of three thousand shares of the capital stock of said corporation with felonious intent to issue the same, said certificate being numbered D11011. The jury assessed defendant's punishment at a fine of one dollar and three years' imprisonment in the penitentiary. From sentence and judgment upon the verdict he appeals.

The alleged false certificate, together with two others exactly like it in all respects except the serial numbers, was signed, dated and issued January 17, 1928. The other two were numbered respectively D11009 and D11010. Each certified defendant to be the owner of 3,000 shares of stock. The three were issued to defendant at the same time and as part of a single transaction, his purpose in procuring them, which was known to all parties concerned, being to pledge the 9,000 shares represented by the three certificates to the Great Southern Life Insurance Company as security for a $500,000 note he owed that company. He had previously, about August, 1927, procured the $500,000 loan from the Great Southern through its president, Mr. Greenwood, pledging certain collateral as security. Desiring to take back the collateral first pledged he effected an agreement with Mr. Greenwood, acting for the Great Souther, in December, 1927, that he might and would substitute for the collateral then held by the Great Southern 9000 shares of stock of the International Life Insurance Company. The three certificates. D11009, D11010 and D11011, aggregating the 9,000 shares agreed upon between defendant and Greenwood, were immediately upon their issuance on January 17, 1928, sent by defendant in a letter of that date to Greenwood for the Great Southern, pursuant to their previous agreement.

When the above mentioned agreement with Greenwood was made, defendant did not own 9,000 shares of the International Life Insurance Company's stock. Its total authorized capital stock was then and on January 17, 1928, 37,500 shares, all of which had been issued and was outstanding. Prior to January 5, 1927, 23,624 shares of this stock were owned by a corporation known as the International Company, which is referred to in the record as the holding company. Defendant owned all or practically all of the common stock of the holding company. On January 5, 1927, the holding company by resolution of its board of directors, sold to defendant 15,924 shares of the Life Insurance Company's stock owned by it. Of this stock so sold to defendant over 10,000 shares, not pledged or encumbered, were represented by certificates then in safety-deposit boxes in two banking institutions in St. Louis. The resolution above referred to provided that the stock should be delivered to defendant at such times and in such blocks or numbers of shares as he might desire, to be paid for upon delivery, but further provided that defendant should be entitled to possession of the stock before payment therefor upon giving to the president of the holding company an "interim certificate" for such stock as he desired to receive. For our present purpose we need not detail further the provisions relative to the interim certificates and payment for the stock.

Defendant claims that prior to January 17, 1928, he had given to the president of the holding company interim certificates which, if his statement was true, entitled him under the terms of the resolution of January 5, to immediate possession of the certificates of stock in the safety-deposit boxes. The president of the holding company, who was defendant's brother, was not called as a witness. Other officers of that company testified for the State that so far as they knew no interim certificates were given, nor were any bonds delivered, in payment of the stock sold to defendant by the resolution of January 5. Be that as it may, defendant did not get actual possession of the stock certificates in the safety boxes until after January 17, 1928. It appears, however, that the real reason for his inability to get the stock certificates was that keys necessary to open the boxes were held by other parties and continued so to be held for several months after defendant had bought the stock. It is by no means clear from the State's evidence that the parties holding the keys had any authority so to do after the resolution of January 5, and according to defendant's evidence they did not have such authority.

With matters in the situation above outlined, the three certificates numbered D11009, D11010 and D11011 were issued. In the evening of January 17, 1928, there was a meeting of the board of directors of the Life Insurance Company. After the meeting was over, defendant came into the office of the secretary, Darst, and asked him to issue to him (Toombs) three certificates of 3,000 shares each. Darst tore three blank certificates from the stock book, passed them to his assistant, who filled out the blank spaces and they were signed by Grantges, vice-president, and by Darst, secretary, and handed to defendant, who immediately enclosed all three, as above stated, in a letter to Greenwood. The evidence indicated that Grantges, being in a hurry, signed the blank certificates before they were filled out, but in any event the making out, signing and delivery of the certificates occupied but a few minutes and was all done at one time and pursuant to a single direction or request from defendant. Defendant testified that he, at the time, directed Darst to "charge" the certificates of stock thus issued against the stock in the safety-deposit boxes which he had acquired by the resolution of January 5. Darst testified that he did not recall that such direction was specifically given at that time, but admitted that he understood that that was to be done and that as soon as the keys to the boxes could be procured old certificates then in the boxes to the amount represented by the new certificates were to be canceled.

Defendant contended throughout the case that the three certificates issued January 17th were never intended to represent new or additional stock but were intended to be and were in fact only a transfer of stock which he in good faith believed he owned and had the right to transfer; and he sought, but was not permitted by the court, to show that as soon as he could get possession of the keys, about May or...