Vaughn & Vaughn v. State
| Decision Date | 30 April 1836 |
| Citation | 4 Mo. 290 |
| Parties | VAUGHN & VAUGHN v. THE STATE. |
| Court | Missouri Supreme Court |
The plaintiffs in error were indicted for exercising the business of auctioneers, without license, contrary to the provisions of the statute. During the progress of the trial in the Circuit Court, various questions were raised and the opinion of the court thereon excepted to. The plaintiffs in error, were convicted on the indictment and (after moving for a new trial and in arrest of judgment, which motions were overruled by the Circuit Court) have come with their writ of error into this court.
SHANNON, HUNT and PORTER, for Plaintiffs in Error. This is an indictment for exercising the business of an auctioneer without license, contrary to the statute. They are indicted jointly, and as for a joint offense. There are two counts in the indictment, but substantially the same. After the evidence was received, the circuit attorney asked several instructions, which were objected to by the defendants, but given by the court; the court also rejected several asked by the defendants, and the opinion of the court excepted to. The jury found the defendants guilty, and that they had sold goods to the amount of $250, &c. The defendants thereupon, having saved all of the evidence, moved the court for a new trial, on the following grounds: 1st. That the verdict is against law and evidence. 2d. That there was no evidence against George Vaughn. 3d. That the verdict is informal and vague, and that no judgment can be given thereon against the defendants. 4th. The court erred in giving the instructions asked by the State, and in the refusing those asked by the defendants. 5th. That there is no lawful verdict, &c. 6th. This motion the court refused, and this opinion excepted to by the defendants. The defendants then moved the court in arrest of judgment. 1st. Because the indictment does not charge such facts as bring the defendants within the offense prescribed by the statute. 2d. Because it does not charge that defendants exercised the business by selling goods and subject to duty by the act--by public auctioneers without license. 4th. Because the facts as stated are too loose and uncertain. 5th. Because the defendants are indicted as for joint, whereas it is an individual offense. This motion the court also overruled, and the defendants excepted to this opinion, and tendered a bill of exceptions including all the evidence,--the instruction to the jury above referred to, and also the motion for a new trial, and in arrest of judgment, which the court signed and sealed, but refused to have the same filed as a part of the record, by reason that the law as explained and expounded by the Supreme Court, did not allow them so to do.
The record proper, we have brought here by writ of error, and the bill of exceptions we now have here sworn to, and ask that the same may be filed as a part of the record, and to be so taken and considered pursuant to the statute, &c.
The defendants rely on the following points: 1st. That a bill of exceptions ought to be granted in all cases of a mere misdemeanor, and especially in cases for the collection of the revenue.--2 In. p. 427; 1 Bac. Ab. 528; 4 Haw. P. C. 457, S. 210; M. L. 320, § 28; also p. 631, § 39; 3 Mo. R., 283; 1 Chitty C. L. 508; Phillips Ev. 214; 1 Starkie Ev. 430; 4 Blacks. Com. 5 and note; M. L. 491, as to common law; also p. 164, § 12, as to the auction. 2nd. If the bill of exceptions be allowed, we contend that the court ought to have granted a new trial, on the grounds, that he gave wrong instructions to the jury, and refused to give those that were right. That the evidence in the bill shows that the sale of the goods was authorized by the statute. That the sale by auction is an individual act and not a joint act. That there was no evidence against George Vaughn, except as he was a partner in merchandize with William, and that William sold some, Hughes sold some, and Trimble sold some, and each was liable for his own act, and not for the other. The verdict being joint, and fine assessed joint, it ought to have been set aside and a new trial granted.--M. L. p. 320, § 28; 1 Chitty C. L. top p. 533; 2 Tidd. 813, 821. 3rd. That the indictment is wholly insufficient. It does not bring the defendants within the provisions of the statute. The selling by auction without license, is an individual act, and those offending against it, are liable separately and not jointly, any more than perjury, and in other respects is too uncertain.--M. L, 160, § 2, 1 and 5, and 1 Chitty C. L. 539 to 41; 2 Tidd 826; 2 Mo. R. 228, 3 Mo. R. 63; 1 Chitty C. L. top p. 220 and 21.
CHAMBERS, for the State. This was an indictment against the defendants for exercising the business of an auctioneer, without having license. Upon the trial of the cause, the jury rendered a verdict of guilty, and found that the amount of goods sold by the defendants was $250, which gave the State a right to the sum of $7 50 for the revenue on the amount sold. Instructions were asked on both sides, some were given, and others were refused by the court. Affer the verdict was rendered, the defendants moved for a new trial, which was refused, and the court further refused to sign a bill of exceptions in the cause containing the evidence. A motion was made in arrest of judgment, which was also overruled by the court. In this the court likewise refused to sign the bill of exceptions.
The question as to the right of the parties to this bill of exceptions in this cause, does not appear to be a legitimate point between the State and the defendants on a writ of error. The better practice would seem to be, to try that question on a motion for a mandamus against the Judge. But if this is a legitimate question in this proceeding, then I contend that the court properly refused to sign the bills of exception, upon the following authorities: 3 Mo. R. 384, State v. Mitchell; 4 Hawk. Pleas of the Crown, 457; 2 Mo. R. 218, State v. Henry, a slave; 13 Johns. R. 90; Phillips Ev. 213; 1 Chitty C. L. 508.
No decision of this court can be had on the judgment of the court below in giving and refusing the instructions and in refusing a new trial, unless the bill of exceptions is first made a part of the record. From this view of the case, I hold that there are but two points presented to this court for its action at this time, to-wit: 1st. Does the indictment sufficiently charge the offense contained in the section of the act relating to auctioneers? See Revised Laws, 161, § 2. That the offense is well charged, see 2 Gallison's R.; 15 Cox's Dig. 357, 813. 2nd. Were the parties properly joined in the same indictment. Upon this point see 1 Chitty C. L. 220; 3 Bac. Ab. 563; 2 Burns' Justice, 550.
The only question which is now submitted for adjudication is, whether the plaintiffs in error were entitled to their bill of exceptions in this case? The counsel for the plaintiffs in error have made and rely upon this point, viz: “That a bill of exceptions ought...
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State v. Dimmick
...otherwise, conforming to the common-law rule and the then provision of our statute, and confined itself to the record proper. In Vaughn v. State, 4 Mo. 290, the same rule applied to misdemeanors. The case was decided in 1836, but arose before the enactment of the statute in 1835 allowing bi......
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State v. Dimmick
...otherwise, conforming to the common-law rule and the then provision of our statute, and confined itself to the record proper. In Vaughn v. State, 4 Mo. 290, the same rule was applied to misdemeanors. The case was decided in 1836, but arose before the enactment of the statute in 1835 allowin......
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State v. Hardy
...the record proper, and defendant was not entitled to a bill of exceptions [Mitchell v. State, 3 Mo. 283, 25 Am. Dec. 442; See also Vaughn v. State, 4 Mo. 290; State Van Matre, 49 Mo. 268, 270; State v. Dimmick, 331 Mo. 240, 243(I), 53 S.W.2d 262, 263 (1, 2)]. The position taken by plaintiff......
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State v. Hardy
...the record proper, and defendant was not entitled to a bill of exceptions [Mitchell v. State, 3 Mo. 283, 25 Am. Dec. 442; See also Vaughn v. State, 4 Mo. 290; State v. Van Matre, 49 Mo. 268, 270; State v. Dimmick, 331 Mo. 240, 243(I), 53 S.W. (2d) 262, 263 (1, 2)]. The position taken by pla......