The State v. Balch

• Decision Date: 09 December 1903
• Citation: 77 S.W. 547,178 Mo. 392
• Parties: THE STATE v. BALCH et al., Appellants
• Court: Missouri Supreme Court

77 S.W. 547

178 Mo. 392

THE STATE v. BALCH et al., Appellants

Supreme Court of Missouri, Second Division

December 9, 1903

Appeal from Osage Circuit Court. -- Hon. Wm. A. Davidson, Judge.

Reversed.

Pope & Vaughan for appellants.

(1) The information contains a count on each of sections 8142 and 8143, Revised Statutes 1899, and all the members of the partnership were convicted and fined on each count. Was this permissible under the statute? The penalty attaches to the violation of the whole article, not a part of it. The statute is directed against the person, firm or corporation, not against the persons composing the firm. In support of the defendants' position, they cite the following: State ex rel. v. Railroad, 146 Mo. 155; Rozelle v Harmon, 103 Mo. 339; St. Charles v. Hackman, 133 Mo. 634; State v. Reid, 125 Mo. 43; State v Bryant, 90 Mo. 534; State v. Howard, 137 Mo 289; State v. Schuchmann, 133 Mo. 111; State v. Gritzner, 134 Mo. 512. The paper, which is the subject-matter of the prosecution, is merely a statement of the account between H. F. Balch & Co., and the party therein mentioned, given by the foreman and clerk of said firm. It was not given and did not purport to be given for payment of the wages of labor. It stated on its face that it was not to be paid until next pay day. It was given that the principal might know how to settle on the next pay day. There is no evidence that the paper was either given or received in payment. The party to whom given did not testify, and none of the witnesses knew him. It was not even identified. (2) The action of the court in admitting the papers in the attachment suit, executed by attorneys, the conversations had by Vermoillon and Well with Meade and L. F. Balch, defendants' clerks, and the admission of the paper without identification, is so clearly error that it is only necessary to call the attention of the court thereto. (3) In support of the position that the act under which defendants were prosecuted is unconstitutional, the court is respectfully referred to following authorities: State v. Loomis, 115 Mo. 307; State v. Julow, 129 Mo. 163.

Edward C. Crow, Attorney-General, and Bruce Barnett for the State.

(1) The court committed no error in admitting evidence of the statements made by one Mead and L. F. Balch, agents of the defendants, that the time check was all right, and other statements of these agents showing that the check, described in the information, had been issued by the firm of H. F. Balch & Co., of which firm the defendants were the members. These statements were made by the agents of the defendants while they were transacting the defendants' business, and related to the very matters concerning which and in connection with which they were performing their duties as such agents at the time. The statements were, therefore, competent as part of the res gestae. Story on Agency, sec. 134; Mechem on Agency, sec. 714; Bergeman v. Railroad, 104 Mo. 86; Rogers v. McCune, 19 Mo. 557; Robinson v. Walton, 58 Mo. 384; Leahey v. Railroad, 97 Mo. 165; Western Boatmen's Ass'n v. Kribben, 48 Mo. 37; Union Savings Ass'n v. Edwards, 47 Mo. 449; Singleton v. Mann, 3 Mo. 464; Railroad v. O'Brien, 119 U.S. 90. (2) The court committed no error in admitting in evidence the pleadings filed in the attachment suit by the defendants herein, the plaintiffs in that proceeding. Though signed by their attorneys and not by them, they were admissible as their admissions. 1 Greenleaf, Ev., secs. 195, 527; Dowzelot v. Rawlings, 58 Mo. 77; Snyder v. Railroad, 112 Mo. 541; Bissell v. Ward, 129 Mo. 452; Bogie v. Nolan, 96 Mo. 85; Schad v. Sharp, 95 Mo. 573; Pomeroy v. Benton, 77 Mo. 64; Turner v. Baker, 64 Mo. 218. And this is the law without regard to whether the defendants knew that such papers were being filed or not, or knew the nature or contents of the same. Dowzelot v. Rawlings, supra. (3) The time check itself was introduced in evidence, and it was shown in evidence that the agents of the defendants in charge of the business recognized the check as having been issued and given out by the firm of H. F. Balch & Co. This is sufficient evidence to sustain the verdict of the jury on the point that the check was given out by the defendants. (4) There having been no arraignment in this case so far as the record shows, it is not contended by respondent that the judgment should be affirmed.

GANTT, P. J. Burgess and Fox, JJ., concur.

OPINION

GANTT, P. J.

At the December term of the Osage Circuit Court, 1902, and on the 4th day of said month, the prosecuting attorney filed in said court the following information:

"In the Circuit Court, Osage County, Missouri, December term, 1902.

"J. William Vosholl, prosecuting attorney within and for the county of Osage, in the State of Missouri, under his oath of office and upon his best knowledge, information and belief, informs the court that on or about the 13th day of June, 1902, at the county of Osage, in the State of Missouri, the firm of H. F. Balch & Co., consisting of H. F. Balch, Leonard F. Motley and Fred K. Balch, did then and there willfully and unlawfully issue, pay out and circulate for payment of wages of labor performed by one A. J. Richardson, to the said A. J. Richardson, an order, check, note, memorandum, token, evidence of indebtedness and obligation, non-negotiable and not redeemable at its face value in lawful money of the United States. That said non-negotiable order, check, note, memorandum, token, evidence of indebtedness and obligation is in words and figures as follows:

"'No. 330 on Maries River Works June 13, 1902,

"'A. J. Richardson No. 92, has worked as laborer in the month of June.

9-10ths days at $ 1.50 per day

$ 1.35

. . . . days' board at . . . .

$ . . . .

. . . . days' board at . . . .

$ . . . .

. . . . days' board at . . . .

$ . . . .

. . . . other accounts

$ . . . .

Total to be deducted

$ . . . .

Balance due

$ 1.35

"'Why given quit

"'M. Domigonuh, Foreman.

"'Payable July pay day.

"'H. F. Balch & Co., Contractors,

"'F. L. B.'

"That said order, check, note, memorandum, token, evidence of indebtedness and obligation, so unlawfully issued, paid out, and circulated for payment of wages of labor performed by A. J. Richardson to the said A. J. Richardson, was non-negotiable, and not redeemable at its face value in lawful money of the United States, by the firm of H. F. Balch & Co., consisting of H. F. Balch, Leonard F. Motley and Fred K. Balch, who issued the same, against the peace and dignity of the State.

"J. William Vosholl, prosecuting attorney within and for the county of Osage in the State of Missouri, under his oath of office and upon his best knowledge, information and belief, informs the court that on or about the 13th day of June, 1902, at the county of Osage and State of Missouri, the firm of H. F. Balch & Co., consisting of H. F. Balch, Leonard F. Motley and Fred K. Balch, did then and there issue and cause to be issued, pay out and circulate for payment of wages of labor performed by one A. J. Richardson, to the said A. J. Richardson, an order, note, check, memorandum, token, evidence of indebtedness and obligation which was non-negotiable.

"That said order, note, check, memorandum, token, evidence of indebtedness and obligation is in words and figures as follows:

"'No. 330 on Maries River Works June 13, 1902,

"'A. J. Richardson No. 92, has worked as laborer in the month of June.

9-10ths days at $ 1.50 per day

$ 1.35

. . . . days' board at . . . .

$ . . . .

. . . . days' board at . . . .

$ . . . .

. . . . days' board at . . . .

$ . . . .

. . . . other accounts

$ . . . .

Total to be deducted

$ . . . .

Balance due

$ 1.35

"'Why given quit

"'M. Domigonuh, Foreman.

"'Payable July pay day.

"'H. F. Balch & Co., Contractors,

"'F L. B.'

"That said order, note, check, memorandum token, evidence of indebtedness and obligation is endorsed on the back, 'A. J. Richardson.' That on or about the first day of August, 1902, at said county of Osage in the State of Missouri, the said firm of H. F. Balch & Co., consisting of H. F. Balch, Leonard F. Motley and Fred K. Balch, did then and there willfully and unlawfully fail to be at all times during the business hours of the day, prepared to redeem and failed to redeem the above described order, check, note, memorandum, token, evidence of indebtedness and obligation, when presented at their place of business or office in Osage county, Missouri, at its face value in good and lawful money of the United States, as demanded by L. Well, who had become the owner of the same for value and was the holder, although the said order, note, check, memorandum, token, evidence of indebtedness, and obligation, was issued, paid out and circulated, by the firm of H. F. Balch & Co., consisting of H. F. Balch, Leonard F. Motley and Fred K. Balch, in payment of wages of labor performed by A. J. Richardson to the said Richardson.

"That the said above set-out-note, order, check, memorandum, token evidence of indebtedness, and obligation, so issued as aforesaid by the firm of H. F. Balch & Co., consisting of H. F. Balch, Leonard F. Motley and Fred K. Balch, for the payment of wages of labor performed by one A. J. Richardson to the said A. J. Richardson was on or about the first day of August, 1902, presented at the place of business and office in Osage county in the State of Missouri of the firm of H. F. Balch & Co., consisting of H. F. Balch. Leonard F. Motley and Fred K. Balch, during the business hours of the day for payment in good and lawful money of the United States at its face value and payment so demanded by L. Well, who had become the owner of the same for value, and said firm of H. F. Balch & Co., consisting of H. F. Balch, ...