The State v. Kentner

• Decision Date: 09 December 1903
• Citation: 77 S.W. 522,178 Mo. 487
• Parties: THE STATE v. KENTNER, Appellant
• Court: Missouri Supreme Court

77 S.W. 522

178 Mo. 487

THE STATE v. KENTNER, Appellant

Supreme Court of Missouri, Second Division

December 9, 1903

Appeal from Holt Circuit Court. -- Hon. Gallatin Craig, Judge.

Affirmed.

Crandall & Strop and John Kennish for appellant.

(1) The information is insufficient for the reason that it fails to charge the unlawful intent of the parties therein alleged to have been dealing on margins. Section 2339, R. S. 1899. "The indictment must set forth all the ingredients of the offense and charge the defendant directly and positively with the commission of it." Kelley's Criminal Law p. 91; State v. Austin, 113 Mo. 538; State v Kirby, 115 Mo. 440; State v. Basket, 52 Mo.App 389. "When the intent with which an act is done is a necessary ingredient of the offense, it must be alleged." Kelley's Criminal Law, p. 100; State v. Burke, 151 Mo. 136. (2) The court erred in refusing the peremptory instruction asked by defendant at the close of plaintiff's case. According to the evidence of every witness, the sales and purchases, or pretended sales and purchases, were made in St. Joseph, Buchanan county, and not in Mound City, Holt county. The offense denounced by the statute is committed where such sales and purchases are made. Sec. 2339, R. S. 1899; State v. Gritzner, 134 Mo. 512; State v. Logan, 84 Mo.App. 584.

Ivan Blair, prosecuting attorney, for the State.

(1) The information is sufficient. It charges the offense prohibited by sec. 2339, in the exact language of said section. Sec. 2339, R. S. 1899. The information is identical in form, with the third count of the indictment in the case of State v. Logan, 84 Mo.App. 585, on which a conviction was sustained. (2) The court properly refused the peremptory instruction for defendant. There was ample evidence to support a verdict of guilty; such a verdict was rendered, and where there is any evidence from which a jury might reasonably have found their verdict, this court will not interfere. State v. Glahn, 97 Mo. 268; State v. Howell, 100 Mo. 628. (3) The law deems that a crime is committed where the criminal act takes effect. Hence, in many circumstances, one becomes liable to punishment in a particular jurisdiction while his personal presence is elsewhere. Even in this way, he may commit an offense against a State upon whose soil he never set his foot. Bishop on Crim. Proc. (Ed. 1880), sec. 53. The rule in misdemeanors is that all who participate in them, whether present or absent, are indictable in the county in which they are committed. Bishop on Crim. Proc., sec. 57; 1 Stark Crim. Pl. (2 Ed.), 28. Witness Smith conducted this place as the agent of defendant, with his knowledge, and under his direction. The defendant employed witness Smith to commit the crime charged, and aided him therein. He is responsible for the criminal acts done by Smith under his direction. State v. McClain, 92 Mo.App. 456; Hopson v. State, 42 S.E. 412; Schmidt v. State, 14 Mo. 137; State v. Hayes, 13 Mo. 248. (4) Even if deals made in defendant's place of business in Holt county were consummated in St. Joseph, the parties so dealing would be guilty of a violation of section 2337, and the offense in that case would be within the jurisdiction of the laws of this State, and the principle of the Gritzner case, 134 Mo. 512, would not apply.

OPINION

BURGESS, J.

On the 11th day of April, 1902, the prosecuting attorney of Holt county filed with the clerk of the circuit court of said county an information against the defendant Kentner, which is as follows:

"Ivan Blair, prosecuting attorney in and for the county of Holt and State of Missouri, upon his oath of office, informs that the defendant, O. A. Kentner, on or about the 1st day of May, 1901, and on divers other days before and since said 1st day of May, at and in the county of Holt and State of Missouri, did then and there unlawfully keep and cause to be kept a certain office room and place, wherein he, the said O. A. Kentner, conducted and then and there permitted Steven T. Lucas, William S. Cannon, John Jourdan, John Trice, C. O. McIntyre, and divers other persons unknown, to engage in the pretended buying and selling of shares of stock and bonds of certain corporations, the names of which, where organized, and by virtue of what laws are unknown and can not be given, and certain quantities of petroleum and provisions, to-wit, pork and lard, cotton, grain and agricultural products, to-wit, wheat, corn and oats, on margins so called, the said persons so pretending to sell the said commodities and pretending to offer the same for sale, not intending then and there to have the full amount of said property so sold or offered to be sold or any part thereof, on hand or under their control to deliver upon such sale, and the said parties so to buy said commodities, and pretending to offer to buy the same, not intending then and there to actually receive the same if purchased, or to deliver the same if sold; against the peace and dignity of the State."

Thereafter at the April term, 1902, defendant filed motion to quash said information which is as follows:

"First. Comes now defendant and prays the court to quash the information in this case, for the reason that the information filed does not state facts sufficient to charge the defendant with a crime under the laws of the State of Missouri.

"Second. Because the act of the Legislature and laws upon which this prosecution is based is unconstitutional and void for the reason that it gives to the informer, or prosecuting attorney, one-fourth of the amount of fine imposed for this violation, and for that reason is in conflict with that provision of the Constitution of the State of Missouri which grants exclusive power to the Governor of the State to grant pardon and remit offense, etc.

"Third. Because said information is so indefinite and uncertain that it does not inform the defendant of what offense he has to be tried, nor allege that he intended to commit any offense."

This motion was overruled and defendant saved exceptions.

The defendant was then put upon his trial, found guilty, and his punishment fixed at a fine of five hundred dollars. He appeals.

The facts briefly stated are, that the place for keeping which defendant was convicted was in the town of Mound City, in Holt county. It was not contended that such place was kept or conducted by the defendant in person; nor that he was ever in Holt county or made any agreement therein, in connection with the keeping of such place. As shown by the evidence defendant was a resident of St. Joseph, Buchanan county, Missouri, and was engaged in business in said city of St. Joseph. The theory of the prosecution is that the defendant was keeping the office or place charged in the information, through his agent, one W. Eben Smith, who was in the actual charge of such office or place. A written agreement offered in evidence by the State, was entered into by defendant and said Smith at St. Joseph, Buchanan county, Missouri, setting forth the terms and the purpose for which Smith was employed by the defendant. According to this agreement and the evidence for the State, the defendant employed witness Smith, paying him seventy dollars per month, and furnished him the markets by telephone, free, at said Mound City. And Smith agreed to send, and did send, orders for the purchase or sale of stocks, grain, etc., to the defendant at St. Joseph, and collected margins thereon at the time such orders were sent; such margins were deposited to the credit of the defendant in a bank at Mound City, after which Smith had no control over or interest in them. In carrying on the business at Mound City, Smith rented a room and paid the rent therefor, owned all the furniture therein, and had broker's license and a city license from said city to transact such business in his own name, both of which were paid for by defendant. The manner in which the business was conducted at Mound City was as follows: There was a telephone in the office, over which Smith received from defendant at St. Joseph the market reports. These reports were placed upon a blackboard. Those desiring to buy or sell any commodity on which the market was given would direct Smith to telephone an order to buy or sell, as the case might be, at St....