State v. Wolfner

• Citation: 2 S.W.2d 589,318 Mo. 1068
• Decision Date: 04 February 1928
• Docket Number: 27359
• Parties: The State v. Julian C. Wolfner, Appellant
• Court: United States State Supreme Court of Missouri

2 S.W.2d 589

318 Mo. 1068

The State v. Julian C. Wolfner, Appellant

No. 27359

Supreme Court of Missouri

February 4, 1928

Appeal from Callaway Circuit Court; Hon. David H. Harris Judge.

Reversed and remanded.

Lewis H. Cook, W. C. Irwin, N. T. Cave, Charles G. Revelle and Abbott, Fauntleroy, Cullen & Edwards for appellant.

(1) The motion for new trial alleged that the evidence was insufficient to support a conviction; that the court erred in refusing certain instructions, designated by number, which presented but a single issue of law; assigned that the act was unconstitutional under a named constitutional provision and assigned error in admitting evidence not admissible for any purpose, and is therefore sufficient to present all these questions for review. State v. Ellis, 290 Mo. 219; Brook v. Barker, 287 Mo. 13; State v Baldwin, 297 S.W. 10; Kilpatrick v. Roberts, 278 Mo. 257; State ex rel. Dev. Co. v. Ellison, 282 Mo. 661; State ex rel. Basket Co. v. Reynolds, 284 Mo. 372; Abernathy v. Railway Co., 287 Mo. 30; State v. Noland, 111 Mo. 492; State v Barrington, 198 Mo. 77; So. Pac. Ry. Co. v. Lipman, 148 Cal. 480; Standard Quicksilver Co. v. Habishaw, 132 Cal. 115; Chicago Ry. Co. v. Bennett, 181 F. 799; Met. L. Ins. Co. v. Hartman, 174 F. 801; Kelly v. Strouse, 116 Ga. 872; Pope v. Wis. Cent. Railroad Co., 112 Minn. 112; Hough v. Fink (Tex.), 141 S.W. 147; Secs. 1267, 1456, 1454, 4079, R. S. 1919; Laws 1925, p. 198, sec. 4079; Sec. 4106; State v. Guerringer, 265 Mo. 416; Reetz v. Michigan, 188 U.S. 508. (2) The defendant should have been found not guilty because the evidence failed to establish that the representations he made were false; fails to prove that they were material or made with an evil intent, and because the evidence affirmatively establishes that if any representation was proved false, the Deputy Finance Commissioner was at the time fully apprised of its falsity to the extent that the evidence tends to prove it was false. State v. Young, 266 Mo. 722; State v. Bohle, 182 Mo. 58; State v. Carethers, 40 Ind. 90; State v. Stowe, 132 Mo. 199; 26 C. J. 1135, sec. 55; 14 Am. & Eng. Ency. Law, 59; 1 Clement on Ins., 279; 26 C. J. 1104, 1172; Maher v. Hibernia Ins. Co., 67 N.Y. 292; Wittels Loan Co. v. Fire Ins. Co., 273 S.W. 194; Wittels Loan & Merc. Co. v. Ins. Co., 273 S.W. 1086; West Coast Lumber Co. v. State Invest. Co., 98 Cal. 502. (3) The information is fatally defective and the motion to quash should have been sustained because there is no allegation in the information showing the extent of the alleged false representations or that any one of them were material. Krand v. Lewis, 100 N.Y.S. 674; State v. Stowe, 132 Mo. 199; Reg. v. Wickman, 10 A. & E. 34; Rex v. Wheatly, 2 Burr, 1125; 2 Bennett & Heard's Leading Crim. Cas. (2 Ed.) 641; False Pretenses, 3 Bish., New Crim. Proc., sec. 168; State v. Foulkes, 57 Mo. 461; Ex parte Wall, 107 U.S. 275; United States v. Post, 113 F. 852; United States v. Lockwood, 164 F. 772; People v. Behee, 90 Mich. 356; State v. Jones, 70 N.C. 75; State v. Lambeth, 80 N.C. 393; Redmond v. State, 35 Ohio St. 81; State v. Trisler, 49 Ohio St. 583; Keller v. State, 51 Ind. 111; State v. Webb, 26 Iowa 262; People v. Miller, 2 Parker's Crim Rep. 197; Barber v. People, 17 Hun, 336; Miller v. United States, 133 F. 341; Addington v. State, 16 Ala.App. 10; Wilkerson v. State, 140 Ala. 155; Day v. Com., 110 S.W. 417; Com. v. Stevenson, 127 Mass. 446; Peo. v. Miller, 169 N.Y. 336; Williams v. State, 77 Oh. St. 468; Urban v. Tyszka, 16 Pa. Dist. 625; State v. Bingham, 51 Wash. 616. (4) The trial court should have quashed the information and discharged the defendant because he was charged with "exhibiting" a "false paper" and convicted of making false statements. His conviction was therefore illegal and unwarranted, because he was found guilty of another and different crime from that set forth in the information. This clearly appears from the information and also from the proof. R. S. 1919, sec. 11930; United States v. Eque, 49 F. 852; United States v. Cadwallader, 59 F. 677; Sheridan v. United States, 236 F. 305; State v. Wilson, 28 Minn. 52; State v. Young, 46 N.H. 266; United States v. Cameron, 13 N.W. 564; Ex parte Hibbs, 26 F. 432; State v. Wheeler, 20 Ore. 192; People v. Munroe, 100 Cal. 664; State v. Ford, 38 La. Ann. 797; Dow v. United States, 82 F. 909; Pierce v. People, 81 Ill. 101; Twining v. United States, 141 F. 41; Dow v. United States, 82 F. 904. (5) The requirement by the Finance Commissioner that the applicant must state the names of the stockholders, the number of shares owned by each, are matters outside of the powers conferred upon him by the statute, and hence an applicant is not guilty of a criminal offense in making false answer to such void requirements. Jones on Insolvent & Failing Corps., 7, 9, 10; United States v. George, 228 U.S. 14; United States v. Verde Copper Co., 196 U.S. 207; United States v. Eaton, 144 U.S. 677; United States v. Maid, 116 F. 650; United States v. Howard, 37 F. 666; United States v. Manion, 44 F. 800; United States v. Bedgood, 49 F. 54; Williamson v. United States, 207 U.S. 426. (6) Sec. 11919, R. S. 1919, attempts to confer upon the Finance Commissioner legislative and judicial powers and confers upon him arbitrary powers, and is therefore unconstitutional. Merchants Exchange v. Knight, 212 Mo. 637; St. Louis v. Packing Co., 141 Mo. 388; Hewitt v. State Board, 148 Cal. 590; Cavanaugh v. Burk, 280 S.W. 50; Neill v. Gates, 152 Mo. 594; State v. Russell, 116 Mo. 255; Nalle v. Home Ins. Co., 250 Mo. 452; State ex rel. v. Kerns, 304 Mo. 707; Franklin v. Fire Ins. Co., 70 N.H. 251; Vooris v. Phoenix Ins. Co., 102 Wis. 76; Dowling v. Ins. Co., 92 Wis. 63; O'Neill v. Fire Ins. Co., 16 Pa. St. 72; Anderson v. Fire Ins. Co., 59 Minn. 186. (7) The definition of the offense attempted to be charged against defendant is found in Sections 11919 and 11930, and in order to state the offense defined, the information should aver that the corporation applying for permit was one in the opinion of the Finance Commissioner not dealing in high-grade bonds and stocks, and absent this negative averment, the information is fatally defective. State v. Timeus, 232 Mo. 177; State v. Hayward, 83 Mo. 299; State v. Thierauf, 167 Mo. 429; State v. Hesseltine, 130 Mo. 474; State v. Meek, 71 Mo. 357; State v. De Groat, 168 S.W. 705; State v. Gabriel, 88 Mo. 642.

North T. Gentry, Attorney-General, and George W. Crowder, Assistant Attorney-General, for respondent; Paul Barnett of counsel.

(1) In this case the trial occurred since July 9, 1925, which was after the effective date of the 1925 Act concerning assignments in motions for a new trial. On authority of that act, appellant has brought nothing to this court for review. His motion for a new trial was clearly of the "shot-gun variety." It contained twenty-eight grounds for a new trial, but called nothing to the court's attention with particularity or in detail as the 1925 Act specifically requires. Sec. 4079, Laws 1925, p. 198. (2) Before courts will hold an act of the Legislature void on the ground that it operates upon a single or special class, its unconstitutionality must be so clear as to leave no reasonable doubt thereof in the judicial mind. State ex rel. v. Hedrick, 294 Mo. 21. If any construction can be given which is consistent with the particular section of the Constitution said to have been violated by the act, such construction will be given in order that the act may not fall. Wilson v. Washington Co., 247 S.W. 185; Washington Road Dist. v. Robbins, 262 S.W. 46; State ex rel. v. Hackmann, 304 Mo. 453. (3) The purpose of the Blue Sky Law was to protect the investing public from the cheats and frauds likely to be inflicted upon the public by "wild cat" promoters, and was not an attempt to hamper business not likely to be infected with these evils. It was therefore a reasonable classification for the Legislature to except from the provisions of the dependable financial concerns. Blue Sky Cases, 242 U.S. 559 568; Ozan Lbr. Co. v. Bank, 207 U.S. 251; Mech. B. & L. Assn. v. Coffman, 162 S.W. 1090; Home Co. v. Davis, 217 F. 904; Re Girard, 200 P. 593; Ex parte Taylor, Ann. Cas. 1916A, 701; Ashley v. Rumelin, 238 P. 314; Stewart v. Brady, 133 N.E. 313; King v. Com., 27 A. L. R. 1159; State v. Tire & Rubber Co., 177 N.W. 937; State v. Agey, 171 N.C. 831; Hornaday v. State, 208 P. 228; Biddle v. Smith, 256 S.W. 453; Ex parte Kreutzer, 204 N.W. 602. (4) The amended information is sufficient. It contains every material requirement of the statute, descriptive of the offense, and fully apprised appellant of the nature and cause of the accusation against him. This is all that good pleading requires. State v. Stegner, 276 Mo. 427; State v. Hascall, 226 S.W. 18; State v. Knost, 207 Mo. 18; State v. Merget, 129 Mo.App. 46; State v. Heibel, 116 Mo.App. 43. (a) The rule that nothing is to be taken by intendment in criminal pleadings only refers to such necessary allegations as will inform the accused of the nature of the charge against him, and such as will affect his substantial rights. State v. Wilson, 237 S.W. 776; Sec. 3908, R. S. 1919. (b) The amended information is sufficient, when measured by the requirements of the Blue Sky Act. State v. Hudson, 214 Mo.App. 260; People v. Boggess, 228 P. 448; Ex parte Kreutzer, 204 N.W. 601. (c) The corporations, companies and associations named in Sec. 11919, R. S. 1919, as not being within the provisions of the Blue Sky Law, are not descriptive of the offense charged in the information in this case and therefore need not be negatived at all, but if at all, they are sufficiently negatived. It is only such provisos and exceptions as are a part of the statutory definition of a crime, or descriptive of the...