Weare Comm'n Co. v. People

• Decision Date: 20 April 1904
• Citation: 209 Ill. 528,70 N.E. 1076
• Parties: WEARE COMMISSION CO. v. PEOPLE.
• Court: Illinois Supreme Court

209 Ill. 528

70 N.E. 1076

WEARE COMMISSION CO.

v.PEOPLE. ^*

Supreme Court of Illinois.

April 20, 1904.

Error to Appellate Court, First District.

The Weare Commission Company was convicted of unlawfully keeping an office wherein there was permitted the pretended buying of grain on margins without any intention of receiving the grain so bought, which conviction was affirmed by the Appellate Court, from which defendant brings error. Affirmed.Henry S. Robbins, for plaintiff in error.

H. J. Hamlin, Atty. Gen., Ora H. Porter, State's Atty., and Geo. B. Gillespie, Asst. Atty. Gen., for the People.

This is an indictment against the plaintiff in error, returned on January 9, 1903, into the circuit court of Bureau county by the grand jury of that county, charging that the plaintiff in error, a corporation, on the 20th day of September, 1901, ‘and on divers other dates and times between that day and the finding of this indictment, in the city of Princeton, in the said county of Bureau and state aforesaid, did unlawfully keep an office wherein there was then and there permitted the pretended buying of grain on margins without any intention of receiving the grain so bought, contrary to the form of the statute,’ etc. The charge in the indictment against the plaintiff in error, as above quoted, was embodied in the fifth count of the indictment; and the plaintiff in error was convicted under section 1 of an act entitled ‘An act to suppress bucketshops, and gambling in stocks, bonds, petroleum, cotton, grain, provisions, and other produce,’ in force July 1, 1887. 1 Starr & C. Ann. St. 1896, c. 38, pars. 262-265. Sections 1, 2 and 4 of this act of 1887 are set forth in Soby v. People, 134 Ill. 66, 25 N. E. 109. A motion to quash the indictment was denied, and plaintiff in error pleaded not guilty, and, a jury being waived, the cause was tried before the court without a jury, and the court adjudged plaintiff in error guilty, and imposed a fine of $200. From the judgment of conviction, so entered by the circuit court, an appeal was taken to the Appellate Court, and the Appellate Court, holding that, although an appeal does not lie in a criminal case, yet where the people do not move to dismiss, but file briefs, as was done here, the Appellate Court is at liberty to treat the case as if pending on a writ of error, disposed of the case accordingly, in accordance with decisions made by it in Ferrias v. People, 71 Ill. App. 559, and cases there cited, and Reddish v. People, 83 Ill. App. 63, and thereupon affirmed the judgment of the trial court. The present writ of error is sued out for the purpose of reviewing the judgment of affirmance so entered by the Appellate Court.

The case was tried upon a written stipulation of facts, which were agreed by the parties to be taken as true, with leave to either party to introduce such further evidence as might be competent. The only evidence introduced by the people, besides that embodied in said stipulation, was the testimony of two witnesses, Theodore Kruse and Thomas Cecil, who were customers of the plaintiff in error at its office in Princeton. The plaintiff in error, defendant below, introduced no testimony, except certain rules and by-laws of the Board of Trade of the city of Chicago, being a statement of the objects of the association-sections 8, 9, 10, and 11 of rule 4; sections 1 and 2 of rule 14; sections 1 and 2 of rule 22; and sections 1 and 2 of ruel 23. At the close of the evidence the plaintiff in error moved the court to find it not guilty, on the ground that the evidence was, as matter of law, insufficient to justify its conviction; it also moved that the court exclude from its consideration the evidence offered on behalf of the people, on the ground that the conviction of the plaintiff in error under the evidence would be in violation of the fourteenth amendment of the Constitution of the United States; and it further moved the court to find it not guilty, on the ground that its conviction under the evidence would be in violation of said fourteenth amendment to the federal Constitution-all of which motions the trial court overruled, and to such rulings the plaintiff in error excepted. The plaintiff in error also requested the court to hold as law in the decision of the case three written propositions, which were marked ‘Refused’ by the court.

So much of the facts as are not stated in the opinion were thus stated by the Appellate Court in its opinion deciding this case:

‘Defendant is a corporation engaged in the commission business, and has its principal office in Chicago. On February 6, 1902, it opened a branch office at Princeton, and placed it in charge of F. E. Flower as its agent, and said office was conducted by Flower for defendant during the period covered by the indictment. The prices at which grain and other commodities were selling on the Chicago Board of Trade were from time to time communicated by telegraph to the branch office, and there displayed on a blackboard to inform defendant's customers of such prices, with a view to enabling defendant to obtain business from said customers. Flower received orders from defendant's customers at Princeton for the purchase or sale of grain, etc., and transmitted said orders by telegraph to the defendant at Chicago. Defendant received the orders at Chicago, and executed them in its own name upon the Chicago Board of Trade, and reported the transactions by telegraph to its agent at Princeton, and he reported the transactions verbally to the customers. Defendant also mailed to each customer a report upon a printed blank, filled out with the details of the transaction. Each such report contained the following printed statement: ‘It is distinctly understood and agreed to by you that actual delivery of property herein mentioned is contemplated.’ When a customer gave an order to defendant's agent at Princeton for the purchase or sale of grain, he was required to deposit a margin of not less than two cents per bushel on the amount of grain so ordered bought or sold. If the market changed against the customer, he was required to furnish an additional margin. If he refused, defendant would dispose of the grain so bought or sold, and charge the customer with the loss or credit him with the profit. The customer also had the right to order a sale of property purchased, or a purchase of property sold, on his account, and was charged with the loss or credited with the profit of the transaction. Section 8 of rule 4 of the rules of the Chicago Board of Trade provided for the expulsion from that body of any member who should knowingly execute any order for any one ‘dealing in differences on the fluctuations in the market price of any commodity without a bona fide purchase and sale of property for an actual delivery.’ Section 2 of rule 23 of said rules is as follows: ‘In case any property contracted for future delivery is not received and paid for when properly tendered, it shall be the duty of the seller, in order to establish any claim on the purchaser, to sell it on the market at any time during the next twenty-four hours, at his discretion, after such default shall have been made, notifying the purchaser within one hour of such sale; and any loss resulting to the seller shall be paid by the party in default.’

‘Kruse and Cecil were witnesses for the prosecution. Kruse bought at defendant's Princeton office, in December, 1902, 1,000 bushels of wheat at about 70 cents per bushel for May delivery, and put up $30 as a margin, or 3 cents per bushel. He did not receive any wheat, but sold out at a profit through defendant before the day for delivery. Afterwards he bought another 1,000 bushels of wheat at 77 cents per bushel, also for May delivery, and paid $30 as a margin, and also sold that wheat at a profit before the day for delivery. He testified that, when Flower sold him this wheat, he said, ‘Now, your intention is to take this wheat if they deliver it to you?’ and that he answered, ‘Yes, sir.’ He received reports of these purchases from the Chicago house of defnendant on blanks like those above described. He testified he bought with the intention of taking the wheat, if he stayed with it till delivery day came, but that he did not intend to do that, and take the wheat. He had had other like transactions through other parties, and always sold out before the time for delivery. At the time of the transactions with defendant he was worth about $300. Cecil bought 5,000 bushels of oats, put up a margin of $150 or $200, received a like statement from the Chicago house, received no grain, and sold out in 30 or 60 days. He testified he was unable to say positively what his intentions were as to actually receiving the grain or selling it at a profit, but on cross-examination he said he owned a farm of over 500 acres, and could have made use of the grain if he had had it.'

MAGRUDER, J. (after stating the facts).

The questions of law presented by this record are substantially the same questions which were decided by this court in the case of Soby v. People, 134 Ill. 66, 25 N. E. 109. But it is stated by the learned counsel for the plaintiff in error that the object in presenting the present case to this court is to bring the construction of the act of 1887 again to the attention of the court, ‘in the hope that the decision in the Soby Case may be more accurately confined to its facts, and a further construction of the statute may be had, which, while not impairing at all its efficacy to accomplish the purposes sought in its enactment, will not work * * * unjust consequences to legitimate traders.’

First. Section 1 of the act of 1887, referred to in the statement preceding this opinion, provides ‘that it shall be unlawful for any corporation * * * or person to keep or cause to be kept within this state any bucketshop, office, store or other place, wherein is conducted or permitted the pretended buying or selling of * * * grain,...