State v. Toombs

• Decision Date: 19 February 1930
• Docket Number: No. 29958.,29958.
• Citation: 25 S.W.2d 101
• Parties: THE STATE v. ROY C. TOOMBS, Appellant.
• Court: Missouri Supreme Court

25 S.W.2d 101

THE STATE v. ROY C. TOOMBS, Appellant.

No. 29958.

Supreme Court of Missouri, Division Two.

February 19, 1930.

Appeal from Circuit Court of City of St. Louis. — Hon. M. Hartmann, Judge.

AFFIRMED.

Ernest Oakley, Roy C. Woods and Abbott, Fauntleroy, Cullen & Edwards for appellant.

(1) The allegations of the indictment, as well as the proof offered in support of it, fail to make a case against defendant, because Section 3350 does not cover an overissue of stock when the stock so issued is signed by the officers empowered by the charter and by-laws to sign such certificates, and stock so signed, when it is of the class and kind authorized by charter and by-laws, is not "false" or "fraudulent" within the meaning of said section. Secs. 3350, 3351, R.S. 1919; State v. Wilson, 9 N.W. 29, 28 Minn. 52; State v. Young, 46 N.H. 266; United States v. Cameron, 13 N.W. 564, 3 Dak. 132; Ex parte Hibbs (U.S.), 26 Fed. 432; Pierce v. People, 81 Ill. 101; Twining v. United States (3 Cir.), 141 Fed. 41, 72 C.C.A. 529; Dow v. United States (C.C.A. 8 Cir.), 82 Fed. 904, 49 U.S. App. 605, 27 C.C.A. 140; United States v. Young, 128 Fed. 111. (2) The State did not introduce the "charter" of the insurance company. It offered only a certificate of incorporation, which is not the "charter." Secs. 6104, 6105, R.S. 1919; Sears on Corporations in Missouri, sec. 40, p. 37; Stockard on Missouri Corporation Law, sec. 60, p. 36; 1 Fletcher on Corporations, sec. 226, p. 440. (3) Failure to introduce the by-laws and charter is fatal to the State's case. State v. Langley, 154 S.W. 716; State v. Hardelein, 169 Mo. 579; 2 Chamberlayne's Modern Law of Evidence, sec. 960; State v. Hirsch, 45 Mo. 429; Underhill on Criminal Evidence (2 Ed.) sec. 24, p. 44; 2 Ency. Evidence 802 (2); 1 Greenleaf on Evidence (16 Ed.) sec. 80; State v. Tallo, 274 S.W. 466; In re Lankford's Estate, 272 Mo. 18; Pate v. Dumbauld, 298 Mo. 435; State v. Goodson, 299 Mo. 321. (4) The indictment is defective because it fails to specify the facts upon which the conclusions of the pleader that the certificate was false and fraudulent is based; fails to allege even in substance the provisions of the charter and by-laws; fails to allege facts showing that the charter and by-laws did not authorize the issuance of such certificate, and fails to aver that the certificate issued constituted an over-issue; fails to inform defendant that he was charged with procuring an over-issue of a share of stock to be signed, and charges fraud generally without specification, and said indictment therefore fails to inform defendant of the nature and cause of the accusation attempted to be made against him, and is fatally defective. United States v. Hess, 124 U.S. 483; United States v. Cruikshank, 92 U.S. 542; State v. Wolfner, 318 Mo. 1068, 2 S.W. (2 Ed.) 592; State v. Stowe, 132 Mo. 199; United States v. Moore, 60 Fed. 738; Collins v. United States, 253 Fed. 609; Foster v. United States, 253 Fed. 481; United States v. Robinson, 266 Fed. 240; Hill v. United States, 275 Fed. 188; People v. Butler, 169 Pac. (Cal.) 919; People v. McKenna, 81 Cal. 158, 22 Pac. 488; People v. Mahony, 78 Pac. 354; United States v. Medina (N. Mex.), 103 Pac. 977; United States v. Christopherson, 261 Fed. 225; United States v. Goggin, 1 Fed. 49; State v. Meysenburg, 171 Mo. 1. (5) It is now universally held in this State that the facts which constitute fraud must be alleged in the pleadings. Authorities under Point 4; Duffy v. Byrne, 7 Mo. App. 417; Smith v. Sims, 77 Mo. 269; Martin v. Lutkewitte, 50 Mo. 58; Hoester v. Sammelmann, 101 Mo. 619; Link v. Link, 48 Mo. App. 345; Reed v. Bott, 100 Mo. 62; Nichols v. Stevens, 123 Mo. 96; State v. Terry, 109 Mo. 601; State v. Cameron, 117 Mo. 371. (6) The indictment is also bad for want of an averment that the act was knowingly done. United States v. Carll, 105 U.S. 611; Moens v. United States, 267 Fed. 317; State v. Norman, 232 S.W. 452; State v. Eudaly, 188 S.W. 110; State v. Bradley, 68 Mo. 140; Fontana v. United States, 262 Fed. 283; Peo. v. Fuski, 192 Pac. 522; State v. Franham, 119 Me. 541; Abrams v. State, 13 Okla. Cr. 11; 31 C.J. 696. (7) The verdict is insufficient because it fails to find that the certificate of stock was a "fraudulent" certificate, but makes a specific finding that it was "false" only. State v. Hinton, 299 Mo. 507; State v. DeWitt, 186 Mo. 61.

Stratton Shartel, Attorney-General, and Smith B. Atwood, Assistant Attorney-General, for respondent.

(1) The indictment follows substantially the language of the statute, and is therefore sufficient. Sec. 3350, R.S. 1919. (a) When a statute employs only general or generic terms in defining a crime, and its violation may be accomplished in a multitude of ways each independent of the other, the indictment must be specific enough to inform the defendant of the manner in which the act charged is comprehended within the general prohibition, e.g., false pretenses. State v. Chick, 221 S.W. 10. When, however, a statute defines the offense with some particularity, and classifies the acts coming within the definition, it is pleading with certainty to a common intent to specify the act, and otherwise to follow the language of the statute, e.g., the instant case. State v. Knost, 207 Mo. 18; State v. Moore, 311 Mo. 531; Ford v. Kalamazoo Circuit Judge (Mich.), 158 N.W. 841; State v. Moore (N.H.), 39 Atl. 584; People v. Elite Distributing Co., 137 N.Y. Supp. 235, 27 N.Y. Cr. 345; Commonwealth v. Coe, 115 Mass. 481; 25 C.J. 625; State v. Chumley, 67 Mo. 41; Beasley v. State, 18 Ala. 535; State v. Dooley, 121 Mo. 591; State v. Ritter, 288 Mo. 381. (b) The words "false" and "fraudulent" in the statute are redundant descriptive words. The gist of the crime is the procuring (with intent, etc.,) signatures to a certificate of stock which the corporation was not authorized by its charter to issue. Such are the "facts which constitute fraud." An act so characterized could not but result in a certificate which is "false" and "fraudulent" within the meaning of Section 3350; consequently it were futile further to particularize upon the character of its falsity. (c) "Knowingly" is not a qualification required by Section 3350. Knowledge is implied from the position and the act of appellant. When a statute prohibits generally, and is silent as to knowledge, it is not necessary to aver knowledge. 31 C.J. 695, sec. 241; Commonwealth v. Stout, 46 Ky. 247; State v. Carson, 2 Oh. Dec. 81; Bailey v. Commonwealth, 78 Va. 19; United States v. Malone, 9 Fed. 897; United States v. Jolly, 37 Fed. 108. The above rule is especially applicable if the offense is a statutory one. United States v. Behrman, 258 U.S. 290. (d) Whatever the necessity may have been for alleging knowledge, the omission is cured by verdict. Sec. 3908, R.S. 1919; State v. Rogers, 7 S.W. (2d) 250; State v. Lewis, 278 S.W. 706; State v. Bostic, 285 S.W. 432; State v. Hudson, 285 S.W. 733; State v. Howell, 300 S.W. 807; State v. Ladd, 216 S.W. 1004. The rule announced in these cases is equally applicable to the want (if any) of other specific allegations complained of. (2) The verdict is sufficient by reason of reference to the indictment from which it draws all the elements necessary to bar subsequent prosecution. 16 C.J. 1099, sec. 2580. A verdict may refer to the indictment for all elements of the offense of which defendant was found guilty. State v. DeWitt, 186 Mo. 61; 16 C.J. 1102, sec. 2585. If a verdict may draw all, it may draw less than all of the elements of the offense from the indictment, just so the elements mentioned in its terms are not in conflict with those charged in the indictment. The greater includes the less; consequently the failure to include "fraudulently" with "false" is harmless. (3) The authority or want of authority of the act charged must be found in the charter and by-laws of the corporation. Want of authority in either is sufficient to make the case, especially as here, where the want is in the charter, by reason of which it could not have been conferred by the by-laws. (4) The admission of parole evidence of the contents of a written instrument without objection constitutes a waiver of the primary evidence of the writing. 16 C.J. 885, sec. 2218; State v. Miller, 292 S.W. 440; State v. Madeira, 125 Mo. App. 508. The charter itself was the best evidence of its provision. The introduction of it was rendered unnecessary by the proper admission (without objection) of secondary evidence that the authorized issue of common stock of the corporation was 37,500 shares. Secondary evidence is incompetent only when timely objection is made to its introduction; and exceptions must be saved to its admission over objection, or motion made to strike it out. State v. Eisenhour, 132 Mo. 140; State v. Rose, 92 Mo. 201; State v. Houston, 263 S.W. 219. An "over-issue" of stock necessarily involves one or more of the specific acts referred to in Section 3350. The question whether such "over-issue" is condemned by said section is settled by the answer to the question, "Was it authorized by the charter?"

WHITE, J.

An indictment was returned in the Circuit Court of City of St. Louis, charging that defendant, while president of the International Life Insurance Company, caused to be signed, with felonious intent to issue the same, in violation of Section 3350, Revised Statutes 1919, a certificate for three thousand shares of stock in that corporation, not authorized by the charter and by-laws. On a jury trial he was found guilty, April 13, 1929, and his punishment assessed at a fine of $3,000 and imprisonment for three years in the penitentiary. Appeal to this court followed.

The indictment places the offense on January 17, 1928. In August, 1927, the Great Southern Life Insurance Company of Dallas, Texas, through Mr. A.P. Greenwood, its president, loaned $500,000 to Toombs & Daly Company. The note representing this indebtedness was executed by the...