author: FERRISS, J.

text:
    THE STATE v. FRANK J. MINER, Appellant.
    Division Two,
    March 7, 1911.
    1. BUCKET SHOP: Agent of Corporation: Convicted as Principal. Where the indictment charged that the defendant, “as principal, unlawfully and feloniously did set up and carry on a bucket shop,” namely, a room wherein the defendant, “carrying on said bucket shop as principal, pretended to buy and sell” stock, cotton, grain, etc.; and the evidence for the State shows that the principal in all the transactions was a corporation' — ■ that the place was operated under the name of the company; that the bank account was kept in its name; that the business with the customers was transacted by various agents of the company; that all the activities, telegraphing, receiving and recording quotations, were carried on by the agents and servants of the corporation — and there is no proof of any trades having been made by defendant in person, nor any by his directions, the demurrer to the State’s case should have been sustained. Defendant was not the principal, though he was president of the corporation under whose direction and in whose name the wrongful acts were done by others of its agents.
    2. -: Corporation a Sham. The State cannot show a valid corporation, carrying on the place and making the sales, and at the same time show the corporation was a mere-mask behind which defendant as its president operated as the real principal.
    3. -: Indictment: Names of Customers. To sufficiently - charge the offense of carrying on a bucket shop, the State must prove pretended sales or purchases, and the vital question is , whether the sale was real or pretended. Therefore, the indictment should. charge either the names of the customers with whom pretended trades were made, or that their names are to the grand jurors unknown.
    4. -: Valid Statute: Inhibition of Innocent Transactions. The statute prohibits a place in which a person carrying it on makes pretended sales or purchases, without regard to whether such sales or purchases are .innocent or of • a gambling nature, and is not invalid because it forbids innocent transactions in the place or because it does not define the pretended sale or" purchase. The Legislature, in order to inhibit the carrying on of a place in which gambling or pretended sales are made, may prohibit the making of innocent sales or purchases in such a place.

      5. -: -: Title. The caption of the act is “Crimes and Punishments, Bucket Shops.” The title proper is: “An Act to repeal sections 2221, 2223, 2224, 2225 and 2226 of Chapter 15, Article 8, of the Revised Statutes of 1899, and to enact new sections in lieu thereof.” Chapter 15, R. S. 1899, is headed “Crimes and Punishments;” and article 8 is headed “Offenses Against Public Morals and Decency, or the Public Police and Miscellaneous Offenses.” Sections 2221 et seq., repealed, relate to bucket shops. Held, that the title indicated that the act related to bucket shops and was sufficient.
    Appeal from St. Louis City Circuit Court. — Hon. Geo. C. IlitchcocJo, Judge.
    Reversed and remanded.

      Chester H. Krum, Henry 8. Priest, A. M. Fruriiberg and Thos. B. Harvey for appellant.
    (1) The Act of March 18, 1907, is inoperative and void for uncertainty. No standard or test is afforded by which to determine when the denounced transaction, innocent in itself, becomes criminal. Bisk., Stat. Cr. (3 Ed.), sec. 41; 26 Am. & Eng. Ency. Law, 656; Black on Interpretation of Laws, 336 ; State v. Partiów, 91 N. C. 560; Cook v. State, 26 Ind. App. 278; Augustine v. State, 41 Tex. Crim. Rep. 59; State v. Mann, 2 Ore. 241; State ex inf. v. Railroad, 146 Mo. 155; State ex rel. v. Askbrook, 154 Mo. 393; End-lick, Int. of Statutes, p. 11; Railroad v. Dey, 34 Fed. 876; United States v. Sharp, 27 Fed. Cas. 1043; United States v. Brewer, 139 U. S. 288; Jackson, ex parte, 45 Ark. 164. (2) The act is obnoxious to the provisions of the State and Federal Constitutions. It deprives of liberty and property “without due process of law.” The law forbids buying and selling without imposing any conditions or limitations which would render the transactions harmful or criminal. And if it attempted to qualify the right to buy and sell, the qualification must be such as would evidently result in the public wrong denounced. People v. Gillson, 189' N. T. 389; Long v. State, 74 Md. 565: State v. Hartley, 185 Mo. 671; 8 Cyo, 864 (B.); Bishop, Stat: Cr. (3> Ed.), sec. 858; U. S. Constitution, 14 Amendment, sec. 1; Mo. Constitution, art. 2, sec. 30. (3) The offense which the evidence tended to establish was a misdemeanor only. R. S. 1909, secs. 4780-4782; Yall v. Gillham, 187 Mo. 393; Evans v. McFarland, 186 Mo. 373; State ex rel. v. Wilder, 197 Mo. 27; State v. Kessels, 120 Mo. App. 243; Sikes v. Railroad, 127 Mo. App. 335; Sutherland, Stat. Cons., secs. 283-284, 288 and 327; State v. Green, 87 Mo. 583: State ex rel. v. Foster,' 187 Mo. 609; Potter’s Dwarris, 272-273; Bishop, Stat. Cr. 126. (4) The indictment fails to allege that the criminal act was done feloniously. State v. Feaster, 25 Mo. 324; State v. Gilbert, 24 Mo. 380; State v. Emerlich, 87 Mo. 115.; State v. Herrall, 97 Mo. 108; State v. Williams, 184 Mo. 264; State v. Woodward, 191 Mo. 626; State v. Willard, 219 Mo. 721. (5) The indictment does not sufficiently state any offense. State v. Hayward, 83 Mo. 304; State v. Davis, 70 Mo. 468; Bishop, Cr. Proc., sec. 566; State v. Cox, 29 Mo. 476 ; State v. Krueger, 134 Mo. 272; State v. Burke, 157 Mo. 136 ; State v. Pickett, 174 Mo. 668; State v. C'ameron, 216 Mo. 420; State v. Stowe, 132 Mo. 205; State v. Barbee, 136 Mo. 440; State v. Franken, 148 Mo. 143; U. S. Constitution, 6 Amendment; Mo. Constitution, art. 2, see. 22. (6) The statute upon which the indictment is based is unconstitutional and void. 1. Unconstitutional, a. The subject of the act is not clearly expressed in the title-, b. The subject-matter of definition in section two is beyond the police prerogatives of the Legislature. A mere pretense to make a sale, etc., cannot lawfully be declared to be gambling. State v. Hartley, 185 Mo. 669; Long v. State, 74 Md. 565.; People v. Gilson, 109 N. Y. 389; Railroad v. Jacksonville, 67 111. 37; Yellowstone Kit v. State, 88 Ala. 196; 8 Cyc. 864B. 2. Void— for uncertainty, a. “Otherwise’’ — meaningless term, b. Part following wherein, applicable to trades made elsewhere than, in place complained of, thereby rendering senseless the section defining the crime, c. No tangible meaning to be attributed to “pretended to buy or sell,” or “went through the form of buying or selling.” Judges and juries would naturally differ in the application of the law. State v. Light Co., 212 Mo. 109; State ex rel. v. Ashbrook, 154 Mo. 375; State ex rel. v. Railroad, 146 Mo. 155; Cook v. State, 26 Ind. App. 278; State v. Partlow, 91 N. C. '550; 26 Am. & Eng. Ency. Law, 656. d. Rule of grammatical construction applied ■ to statute renders it absolutely senseless. Wherein applies to part of section immediately preceding that word. State ex rel. v. Railroads, 215 Mo. 479. e. The statute violates both the Constitution of Missouri and that of the United States. (7) The indictment is wholly insufficient and violates the “well-settled principle of law,” that before one can lawfully be convicted of a criminal offense there must have been preferred against him á “clear legal charge.” 1. It is a mere copy of the section which defines the crime. 2. The place kept is not alleged. State v. McLaughlin, 160 Mo. 40; Wheat v. State, 6‘ Mo. 455; State v. Welsh, 28 Mo. 600; State v. Hogan, 31 Mo. 340; State v. Wacker, 16 Mo. App. 4201. -3. The indictment is a mere copy of a statute which does not individuate the offense. State v. Burke, 151 Mo. 142; United States v. Cr'uikshank, 92 U. S. 542; State v. Meysenburg, 171 Mo. 25; State v. Krueger, 134 Mo. 262; State v. Watson, 206 Mo. 420; State v. Stowe, 132 Mo. 199; State v. Fraker, 148 Mo. 143; State v. Barbee, 136 Mo. 440; State v. Pickett, 174 Mo. 668; State v. Cameron, 216 Mo. 420. 4. The indictm'ent is merely a series of recitals and destitute of all averment of fact. “Pretended to buy and sell” — without an averment of fact. “AVent through the form of buying and selling” — without an averment of fact. These recitals do not even allege that “pretended to buy,” etc., was feloniously done. State v. Truley, 142 Mo. 409; State v. Fairlamb, 121 Mo. 154; State v. Clayton, 100' Mo. 519; State v. Weldon, 70' Mo. 574; State v. F'eazell, 132 Mo. 181; State v. Green, 111 Mo. 587; State v. Williams, 184 Mo. 264. 5: No person named with whom trade was made; no commodity trailed in specified. State v. Burke, 151 Mo. 144; State v. Martin, 108 Mo. 117. 6. No “board of exchange” specified on which prices were fixed. 7. Term otherwise, used in statute, merely recited in haec verba in indictment. The indictment does not contain one averment of fact. It is a mere recital, in the language of the definition set out in the statute, of conclusions made in the absence of facts necessary to be pleaded. It violates every elementary rule of criminal pleading prescribed for the protection and information of the accused, either by the courts or by the Constitution. It falls as far short as one can well conceive of compliance with the rule that it is a “well-settled principle of law” that a “clear, legal charge” must be preferred against one charged with crime: State v. Lawrence, 17'8 Mo. 350: (8) The instruction in the nature of a demurrer to the evidence should have been given. 1. Appellant indicted as principal — “ as principal' unlawfully and feloniously did set up and carry on a bucket shop.” Not.one word of evidence to such effect. The State proved place set up and carried on by “Merchants’ Stock and Grain Company,” an existing corporation. 2. Appellant indicted as principal — only evidence at best was that he was an agent for a corporate principal whose existence the State conclusively proved. 3. Statute requires that fictitious' trades should have been at prices fixed by trades on “boards of exchange or otherwise.” No evidence on this subject. Not one word tending to prove anything. No evidence that what witnesses spoke of as quotations emanated from a board of exchange or “otherwise.” Case of the State a mere blank on the subject. 4. Statute requires that trades on boards of exchange by which prices are to be fixed in the bucket shop must themselves have been fictitious. No evidence on this score — not one word. (9) The main instruction given by the court was wholly erroneous. 1. It was merely a copy of a wholly insufficient indictment. State v. Roberts, 199 Mo. 529. 2. The meaning of the term otherwise is not explained. State v. Hardelein, 169 Mo. 586. 3. The statute using the words “any person,” the same words used in the indictment mean every person, and the instruction should have so indicated and required proof accordingly. It did not so require. 4. The meaning of terms “pretended to buy and sell” and “went through the form .of buying and selling” not explained. Imperative that this should have been done. 5. There was no evidence on which to base the instruction. The instruction was and is utterly bad and indefensible. There was no evidence to support it. The instruction merely copied a bad indictment. It did not explain the meaning of terms employed by the statute which most sorely needed explanation. It was not as broad as. the statute and did not fully instruct as to the law of the case. It is a marvelous departure from every approved and judicially settled notion of instructing a jury in a criminal case. (10) The instruction as to the meaning of the term sale used in the statute and by the court was erroneous and inconsistent with an instruction given for appellant. 1. The instruction defined a sale to be a transfer of the “absolute and general property” in a thing from one person to another at thé timé of such sale. This is a merely abstract proposition, but, at best, not applicable. Necessarily, if this were the law a sale for future delivery would be fictitious, and, being fictitious, would be unlawful. 2. The court, however, instructed for the appellant that a sale for future delivery would not of itself be unlawful. 3. To speak of an "absolute and general property” in a thing which may not even be in existence is a legal absurdity. (11) The instruction with reference to accomplices was erroneous. 1. It was a mere general proposition. 2. No one claimed that an accomplice had testified. 3. The appellant was prejudiced because the instruction assumed a crime had been committed. Otherwise there could not have been an accomplice. (12)'Instructions one, two and three asked by the appellant should have been given. 1. Number one was based on the distinction made by the statute and indictment between a principal and an agent. 2. Number two was based upon the undisputed fact established by the State, that when the corporation was formed, the appellant was in Chicago. 3. Number three told the jury that the fact of the corporate existence of the "Merchants’ Stock and Grain Company” was not open to collateral attack. To say the least of it, the refusal of this la,st instruction was well calculated to shock the legal sense. The State proved that the corporation existed. ' The law says that the fact cannot be questioned by collateral attack. Nevertheless, a trial court let the jury find, if they would, that the corporation had no existence, but was a myth. (13) The trial court committed palpable errors in the admission of evidence objected to by appellant. 1. It was error to admit evidence of the doings of persons employed at Fourth and Pine and statements made by them ■ or to them by others in the absence of the appellant. The rule is inflexible that authority aliunde the admission and that the admission was within the scope of the authority must be shown, before the principal can be bound bv the declaration of his agent.'Helm v. Railroad, 98 Mo. App. 425 ; Cosgrove v. Railroad, 54 Mo. 498.' No authority was shown. No knowledge on the part of appellant was shown. No connection whatever was shown between him and any given transaction. 2. It was error to admit evidence that when trades were made samples were not exhibited. This evidence is too absurd to be worthy of comment.

      Elliott W. Major, Attorney-General, and Charles G. Revelle and James T. Blair, Assistant Attorneys-General, for the State.
    (1) At the threshold of this case we observe in appellant’s brief an allusion to the alleged invalidity and unconstitutionality of the act upon which the indictment is predicated, but we shall refrain from entering upon a ‘discussion of that feature, since no such question is presented by the record nor involved in this appeal. The indictment clearly discloses- upon its face that it is based solely upon an act of the Legislature of 1907 (Laws 1907, p. 236 — sections 4772, 4773, R. S. 190'9'), relating to bucket shops, and if ap>pellant desired to assail the validity of this act, and have it passed upon by this court, it was indispensable that the constitutional question be lodged at the earliest moment that good pleading and orderly procedure would permit, and that the trial court be given an opportunity of first deciding the question. Although the indictment is in the words of the statute, and appellant’s distinguished counsel well knew the particular statute upon which it is based, yet no demurrer, or motion to quash, raising a constitutional question, was filed. At no subsequent stage of the trial did appellant present such a point, either by objection to the evidence or instructions. When we read the motion for a new trial, we read it from beginning to end, and find not a word suggesting, in any particular, the unconstitutionality of this- law. State v. Raymond, 156- Mo. 118-; State v. Grant, 194 Mo. 366; State v. Gregory, 170 Mo. 602; Jacob v. St. Joseph, 204 Mo. 357; State ex rel. v. Bland, 186 Mo. 701; State v. Kyle, 177 Mo. 663; State v. Gamma, 215 Mo. 103; State ex rel. v. Smith, 176 Mo. 44; Ash v. Independ-' ence, 169 Mo. 77; State v. Boehler, 220 Mo. 5; Barber Asphalt Co. v. Ridge, 169 Mo. 387; Lohmeyer v. Cordage Co., 214 Mo. 689; Bartlett v. Veach, 128 Mo. 92; Hartzler v. Railroad, 218 Mo. 565; City v. Clark, 186 Mo. 292; State v. Richardson, 194 Mo. 336; State v. Diltz, 191 Mo. 673; State, v. Alfred, 115 Mo. 473. A complaint of this nature and upon such a record as this cannot be lodged for the first time in a motion in arrest of judgment. State v. Gamma, 215 Mo. 103; State v. Boehler, 220 Mo.,'51; State v. Grant, 194 Mo. 366; Hartzler v. Railroad, 218 Mo. 565: The motion in arrest does not properly raise the question, since it wholly fails to designate the section or article of the Constitution, or the particular in which the act violates the Constitution. State v. Kuehner, 207' Mo. 606; St. Joseph v. Ins. Co., 183 Mo. 7; State v. Chris- - topher, 212 Mo. 247; Lohmeyer v. Cordage Co., 214 Mo. 688. (2) The offense charged is statutory and is fully defined and individuated by the act creating it. Section 1 of the act (R. S, 1909, sec. 4772) makes it a felony to' “set up and carry on a bucket shop,” while section 2 of the act (R. S. 1909, sec. 4773) points out in detail what constitutes the “setting up and carrying on of a bucket shop.” These sections are, strikingly similar to Sec. 4782, R. S. 1909, which creates a similar offense, and the two sections mentioned more fully individuate the offense than does the last mentioned section. An indictment • in the language of that section is sufficient. State v. Renter, 178 Mo. 473; State v. Runzi, 105 Mo. App.. 332. An indictment is good which follows the language of section 4754. State v. Bregard, 76 Mo. 322; State v. Bean. 21 Mo. 267. Under this section it has also been held that in charging the setting up and keeping of a bawdy house it is not necessary to name the occupants or the definite location of the house. State v. Raymond, 86 Mo. App. 537. An indictment is sufficient which follows the language of Sec. 4750, R. S. 1909, which section is directed against the “setting'up and keeping of any table or gambling-device adapted, devised and designed for the purpose of playing games of chance for money or property.” State v. Rosenblatt, 185 Mo. 120; State v. McKee, 212 Mo“. 138. The sufficiency of this indictment is fully sustained in the following cases, upon similar statutes. State v. Corcoran, 73 Yt. 404; Weare Com. Co. v. People, 209 111. 528; Case Notes, 20 L. R, A. (N. S.) 347, 348. It is not necessary that the indictment specify ■ more definitely than it does the commodity dealt in, or the name of the board of trade on which prices were fixed, or pretended to be fixed, or the names of the persons with whom the trades were made, these matters being wholly immaterial. Com. v. Edds, 14 Gray (Mass.) 406; State v. Prescott, 33 N. H. 212; McGaffey v. State, 4 Tex. 156; Horan v. State, 24 Tex. 161; State v. Crummay, 17 Minn. 72; Clark v. State, 19 Ala. 552; Chase v. People, 2 Colo. 509; Kleespies v. State, 106 Ind. 383; State v. Winfield, 115 Mo. 428. It is unnecessary for the indictment to designate the particular house or place in which the bucket shop was kept, it being sufficient to merely allege that it was kept in the city of St. Louis. State v. Prescott, 33 N. H. 212; Eylar v. State, 37 Tex. Crim. 56; Dohne v. State, 68 Ga. 339; Kleespies v. State, 106 Ind. 353; Bibb v. State, 83 Ala. 84. Appellant complains at the use of the term otherwise in the indictment. This phase of the indictment has been directly passed on and ruled adversely to appellant in State v. Corcoran, 73 Yt. 407. It is used in this indictment conjunctively, and does not render the indictment defective. State v. Calvert, 209 Mo. 280'; State v. Grossman, 214 Mo. 233; State v. Fielder, 210 Mo. 188 ; State v. Cameron, 117 Mo. 371. Particularly does it not make the indictment bad after verdict when appellant filed no motion to quash. State v. Blakeley, 184 Mo. 187; State, v. Neihaus, 217 Mo. 332. The offense against which the statute is leveled is the setting up and carrying on of a bucket shop, and the indictment sufficiently charges that the act was done “feloniously.” State V. Hendrickson, 165' Mo. 262. (3) 1. There is substantial evidence in this record that the business conducted under the name of the Merchants’ Stock and Grain Company was -a bucket shop, business. That business has been defined by the Court, of Appeals of Kentucky, 84 Ky. 664. See Conuor v. Black, 119' Mo. 141; Bryant v. Tel. Co., 17 Fed. 827; Weare Co! v.. P'eople, 209’ 111. 539'. 2. There is substantial evidence •that appellant set up and carried on the bucket shop in the name of the “Merchants’ Stock and Grain Company.” Some effort is made to contend that, since the business was carried on in the name of a corporation, appellant was therefore wrongfully convicted. It is to be observed that the Merchants’ Stock and Grain Company was not and could not have been incorporated to carry on a bucket shop. Conceding that appellant acted solely as an officer of the . Merchants ’ Stock and Grain Company, he could not defend here on that ground. Crall & Ostrander’s Case, 103 Ya. 859; 2 Bishop’s New Crim. Law, sec. 424; Hays v. State, 13 Mo. 246; Schmidt v. State, 14’Mo. 137; The Law of Crimes (2 Ed.), secs. 195; 112, 83; Reese v. State, 73 Ala. 19; P'eople v. White Lead Works, 82 Mich. 479; State v. Milling & Mfg. Co., 20 Me. 41. The above cases demonstrate that appellant’s participation in the violation of the bucket shop law subjected him to its penalties, despite the fact that he was president of the Merchants’ Stock and Grain Company. In fact, his presidency of that company, which appears to have been organized in a rather peculiar fashion, tends more to inculpate than exculpate him. It certainly cannot serve to exempt him from the law, which he violated, any more than could' his connection with some other corporation -whose corporate name was not over the door of the rooms at Fourth and Pine. 3. It is not necessary to argue the bona fides of the organization of the Merchants’ Stock and Crain Company. Since appellant’s connection with that company could not protect him in any .event, the question of good faith is not in the case. 4. Including the words “as principal” in the indictment changed in - no manner the measure or character of the proof necessary to show guilt under the statute. The omission of the words mentioned leaves a complete and formal charge against appellant, and that is all that the law exacts. State v. Currier, 225 Mo. 650'. 5. Section 4772 does not introduce a distinction between a principal and an agent in the violation of the section: The language clearly shows that- it is leveled against all who violate its provisions without regard to their relations to third persons. Whether principal or agent, whosoever sets up and carries on a bucket shop is guilty of a felony under the section named. The following section in defining bucket shops shows that the use of the words “as principal or as agent,” etc., sprang-from an excess of caution and not from an intent that a principal should be indicted or tried in anywise differently than an agent. The same conclusion is fully supported by the language of section 4776. Any other construction would not only do violence to the language of the act itself, but would run counter to other portions of the law of the State. It would be equivalent to holding that the Bucket-Shop Act operated as a partial repeal by implication of Sec. 4898, R. S. 1909'. Such repeals are never favored, and a construction of the kind is avoided whenever that can be reasonably done — “is not to be adopted unless it is inevitable.” Endlich on Int. Stats., see. 210; 1 Lewis’ Sutherland, Stat. Const., p. 467; Manker v. Faulhaber, 94 Mo. 439'; Evans v. McFarland, 186 Mó. 723; State ex rel. v. Wilder, 197 Mo. 35; McYey v. McVey, 51 Mo. 420; State ex rel. v. Wells, 210 Mo. 620. 6. It is said that there was no evidence that purchases and sales were made at prices fixed or pretended to be fixed by trades and transactions made or offered to be made “on board of exchange,” etc. The record contains much evidence of appellant’s guilt, and is entirely sufficient to support the verdict. State v. Rollins, 186 Mo. 505; State v. Miller, 188 Mo,. 379’; State v. Smith, 190 Mo. 723; State v. Faulkner, 185 Mo. 703; State v. Page, 212 Mo. 243. (4) Paragraph one of the instructions given required the jury, before returning a verdict of guilty, to find affirmatively every element of the offense defined by the statute. R. S. 1909', secs. 4773', 4774 and 4776. The fact that a greater burden than the law warrants was placed upon the State by this instruction furnishes appellant no ground of complaint. Secs. 4776 and 4898, R. S. 1909. The contention that appellant cannot be convicted because he was not shown to have been the originator of the place at Fourth and Pine, and, therefore, was not shown to have “set' it up,” cannot be upheld. If the teim set up had such meaning as attributed to it in briefs for appellant, no person who did not himself install the tables, blackboards, telegraphic equipment, etc., and erect the building which housed the establishment, could ever be convicted under our statute. One who purchased such an establishment and continued to carry it on would go scot free. This is not the meaning of the statute. Frisbie v. State, 1 Ore. 266 j Com. v. Carson, 6 Phil. 383; Com. v. Burns, 27 Ky. 180.
   FERRISS, J.

Defendant was convicted at the February term, 1910’, of the circuit court of the city of St. Louis, upon the charge of setting up and carrying on a bucket shop, and sentenced to five years in the penitentiary. The indictment was as follows:

“The grand jurors of the State of Missouri, within and for the body of the city of St. Louis, now here in court, duly' impaneled, sworn and charged, upon their oath present, that Frank J. Miner, on the twenty-second day of March, one thousand nine hundred and ten, at the city of St. Louis aforesaid, as principal, unlawfully and feloniously did set up and carry on a bucket shop, namely,' a room and place wherein and in which said bucket shop, namely, said room and place, the said Frank J. Miner, carrying on said bucket shop as principal, pretended to buy and sell, and went through the form of buying and selling to and from and for any person and persons, stocks and bonds of certain corporations, petroleum, cotton, grain, provisions and other commodities, and one or more of the same,- at prices fixed and pretended to be fixed by trades and transactions made and offered to be made in the same on boards of exchange and otherwise, but wherein there was in fact no actual purchase and sale and sale and purchase of such commodities for and on account of the party and parties thereto; contrary to the form of the statute, ’ ’ etc.

This indictment is based upon an act of the Legislature passed in 1907. [Laws 1907, p. 236; now section 4772 and following, R. S. 1909.] Sections 4772 and 4773 are as follows:

“Sec. 4772. Whoever, as principal, or as agent of any corporation or person or persons, shall set up and carry on a ‘bucket shop,’ or any person who shall accept employment from any person or persons, or corporations engaged in carrying on a bucket shop, and shall under such employment in any manner or capacity assist in the carrying on of a bucket shop, shall be guilty of a felony.

“Sec. .4773. A bucket shop, in the meaning of the preceding section, is a place wherein the person carrying on the bucket shop., then and there, either as principal or agent, pretends to buy or sell, or goes through the form of buying and- selling, to or for any other person or persons, stocks, bonds, petroleum, cotton, grain, provisions and other commodities, or anyone or more of the same, at prices fixed or pretended to be fixed by trades or transactions made or offered to be made in same on boards of exchange or other.wise, but wherein there is in fact no actual purchase and sale, or sale and purchase of such commodity for or on account of the party or parties thereto.”

The evidence introduced by the State tended to prove that the Merchants’ Stock and Grain Company, a corporation duly organized under the laws of Missouri, was conducting the alleged bucket shop on the northeast corner of Fourth and Pine streets, in the city of St. Louis. The place was fitted up with a black-board on which quotations were posted; also telegraph instruments, counters, desks, etc. Markers, telegraphers, bookkeepers and a cashier plied their respective vocations without any apparent managing head. This place was resorted to by people who bought or sold stocks and grain on margins. Several witnesses testified that they had so bought and sold as customers — three of the witnesses, that they had actually received or delivered stock on these trades. Most of them testified that they were told, or it was understood, that they could get the stock or grain if they desired it. .As a matter of fact, the practice was to make no delivery, but to settle the transactions on the rise or fall of the market. Some of the witnesses testified that they bought through the house, not from the house, and. they all testified that, upon the execution of the order, they received what they called a confirmation — an account in the shape of a written memorandum, showing the name of the article bought or sold, quantity and price. All of these memorandums were signed in the name of the Merchants ’ Stock and Grain Company. Several witnesses testified that they were employees of the aforesaid corporation. One of them, who was vice-president of the corporation, kept the books and was assistant at the cashier’s window. He detailed the method pursued, and testified that the orders were telegraphed to Pittsburg for execution. None of the other witnesses undertook to say how the orders were executed. As far as they were concerned, they merely gave orders to buy or sell, without knowing with whom they dealt. The evidence would justify the inference that the bulk of the transactions, to say the least, were made without any intention of receiving or delivering, but solely with a view to settlement upon the rise of fall of the market. There was also introduced evidence to show that an establishment similarly equipped was operated by the same corporation at Twelfth and Pine streets, in St. Louis, connected with the place at Fourth and Pine streets by wire; that in the place at Twelfth and Pine streets orders were received by wire from outside the State, and filled at Twelfth and Pine.

The testimony tended to show that the Merchants ’ Stock and Grain Company was organized in February or March, 1908, in a lawyer’s office in St. Louis: that the articles of association were subscribed by three persons who were not the substantial owners of the stock. They were employees about the building in which the lawyer’s office was located. It does not appear that the defendant participated in the organization of the corporation. Subsequently, at some ' time not stated, but after the business was in operation, he became president of the company, and signed checks for the company as such president. So far as his connection with the business is concerned, one witness testified that the defendant paid him on one deal. Another testified that he saw the defendant pass through the place two or three times, and saw him once beind the counter. Another witness — a porter in the establishment — testified that the defendant gave 1dm instructions as to cleaning, etc. Another witness testified that the ' defendant gave some orders to a clerk, and also made inquiries about putting in telegraph wires. A policeman found him at Twelfth and Pine streets, which place was. run behind locked doors. He ordered the policeman out, at the same time stating that he, himself, had no position there. There is no testimony tending to show the scope or.nature of his duties or authority as president of the company, nor is there any testimony connecting him directly with any sale or purchase testified to.

At the close of the State’s case the defendant offered a peremptory instruction to acquit, which was refused.

I. The peremptory instruction offered by the defendant at the close of the State’s case should have been given. The indictment charges that the defendant; “as principal, unlawfully and feloniously did set up and carry on a bucket shop,” namely, a room wherein the defendant, “carrying’ on said bucket shop as principal, pretended to buy and sell.”

Here is a direct charge that the defendant, as principal, pretended to buy and sell. The evidence for the State shows that' the. principal in all the transactions testified to by the witnesses was the Merchants’ Stock and Grain Company, a corporation. The State proved that the place was operated under the name of the company; that the accounts of sales or confirmations in writing, delivered to the customers, were in the name of the company; that the bank account was kept in the name of the corporation; that the business with the customers was transacted by various agents of the company, and that all the activities, telegraphing and receiving and recording quotations, were carried on by the agents and servants of the corporation. The State introduced the articles of association and the certificate of incorporation. There is no proof of any trades made by the defendant in 'person, nor any by his direction. He was president of the corporation. We clo not mean to say that a defendant may not be charged as principal, and held as such, where the proof shows that the felonious act was committed hy his direction. But the mere fact that one is president of a corporation, under whose direction and in whose name wrongful acts are done hy others of its agents, cannot make him criminally responsible as principal for the acts so done without his knowledge or direction. If we concede that there is sufficient-proof to show that the defendant was cognizant of the transactions testified to, and that he could be held for them if he were carrying on the place as principal, the fact still remains that he was not the principal; that he was, and could only be, an agent of the principal, to-wit, the Merchants’ Stock and Grain Company, a corporation. But even as such agent, it does not appear that he personally either carried on the place or made any sales or purchases. There was evidence that would tend to sustain a charge that defendant was assisting in carrying on the place. It is sought by the State t-o connect the defendant with the sales and purchases shown .in evidence, through his connection with the corporation as its president, and yet.the State at the same time seeks to throw aside the corporation. The State proved a valid corporation, and then undertook to show that this- corporation was merely a mask behind which the defendant operated as the real principal. The State practically conceded that the ostensible principal, carrying on the place and making the sales, was the corporation, and then, after establishing this fact, as also the further fact that the corporation had been duly incorporated, sought to ignore the corporation as a mere sham. It established the corporation apparently for the sole purpose of demolishing it. But this it could not do. The prosecutor appears to have had a confused idea that the principles sometimes applied in equity proceedings to uncover fraud might be invoked here. If the defendant had been indicted as agent for the corporation, the state would certainly claim that he could not deny his agency on the ground that the corporation was invalid. The validity of a corporation cannot be assailed in a collateral proceeding. Furthermore, it does not appear that the corporation was invalid. The three original incorporators, it appears, were not the substantial owners. This fact is not enough to invalidate the corporation. They were merely the employees about the building wherein was located the office of the lawyer who prepared the articles of association. It does not appear that the defendant had any knowledge of the matter, nor any connection with the'incorporators or the attorney who prepared the papers. At some time subsequently he became president of the company. How it does not appear, nor does it appear what powers or duties he had as such, outside of the power to- sign checks. He may have been the controlling spirit of the enterprise, but the evidence does not show it. But if the evidencó did show the defendant to be the dictator of the doings and policy of the corporation, the fact would still remain that the “person” who carried on the business as principal was the corporation. A corporation cannot be ignored simply because it is acting outside the scope of its charter. That is a matter for-the State to deal with in a direct proceeding.

The act in question seeks to hold whoever carries on a bucket shop. It makes two classes; one composed of those who carry on the shop as “principal” and one composed of those who carry it on as “agent of any corporation or person or persons.” There is also a third class drawn within the scope of the act, namely, a class composed of those who accept employment, and, as employees, assist in the carrying on of the shop. Under the proof in this case, the defendant, if he was in actual charge of the business, belongs to the second class, as agent of the Merchants’ Stock and Grain Company. If he was simply assisting he belongs to the third class. The statute was framed for the purpose, doubtless, of reaching not only men who run bucket shops of which they are proprietors and principals, but those .also who are operating for outside concerns, or for those who do not, for any reason,' appear as proprietors and principals. However this may be, it is obvious that a charge that a man is carrying on a- business for himself as principal is not sustained by proving that he was merely acting as agent for, or was an employee of, a proprietor corporation in whose name the business was done.

II. We think that the indictment should have charged either the names of the customers with whom pretended trades were made, or that their names, were to the grand jurors unknown. The State must prove pretended sales or purchasers.

We are cited to misdemeanor cases in this. State, involving the running of bawdy houses, and selling liquor, where it was held unnecessary to give the names of the customers. In such cases there is no question of the character of the acts permitted or committed. Here it is a vital question whether the act committed was a real or pretended sale. The defendant is charged with making pretended sales. Ought not the defendant to be advised of the particular transactions, so that he may prepare upon the question of bona fidesf

In the Kentner Case (State v. Kentner, 178 Mo. 487), cited by the State, the information charged the names of the customers. So in State v. McKee, 212 Mo. 141, an information charging' a felony in the' setting up. of a gambling device gave the names of certain players, and others “unknown.” The indictment in State v. Rosenblatt, 185 Mo. 120 (a gambling device case), states that the defendant did “entice and permit divers persons to said grand jury unknown.” These gambling device eases are based upon a statute that requires something more than merely setting up and keeping the device to complete the offense. The defendant must also “induce, entice or permit” a person to use the same. [R. S. 1899, sec. 2194.] So, in the case at bar, the mere setting up a room with the appropriate paraphernalia is not the offense. The per-' son setting up must carry it on by making pretended trades. How is he to know what particular sale he is to answer for unless the indictment in some way identifies it? Must he be prepared to prove the legality of any and every one of the numerous transactions made in the place?

In State v. Burke, 151 Mo. l. c. 144, Judge Sherwood, speaking of an indictment for recording bets and wagers by mechanical means, says: “It should have described what were the mechanical and other means employed . . . and stated with whom the. bets, etc., were made.”

In State v. Martin, 108 Mo. 117, the distinction is pointed out between a case charging one with selling liquor without a license, in which case it is not necessary to state the name of the customer, and a case where the charging is selling liquor by a druggist, without a proper prescription, in which latter case the name of the purchaser must be set out in the information. That case is authority for the proposition that where the character of the act is under consideration, i. e., whether the sale or purchase is pretended or actual, the name of the person with whom the trade was made must, if known, be set out, or must be «fated to be unknown.

The motion in arrest should have been sustained.

III. The'statute, in substance and effect, prohibits a place in which the person carrying it on makes pretended sales or purchases, without regard to whether such sales or purchases are innocent or of a gambling nature. It is claimed that the statute is-bad because it does not define the pretended sale or purchase; that the Legislature cannot forbid innocent transactions of this kind, free from any taint of gambling. ¥e are not prepared to accede to this proposition. This statute is doubtless aimed at gambling in futures. We cannot say that the Legislature has not power to forbid the carrying on of a place wherein the person carrying it on makes pretended sales or purchases, whether innocent or not, of the commodities mentioned, if in the judgment of the Legislature the inhibition of innocent pretended sales or purchases in such place is necessary to prevent gambling therein in such commodities. We think the Legislature might safely assume that this law would not deprive any great number of persons of the privilege of resorting to a bucket shop for the purpose of making innocent pretended sales or purchases, free from any element of gambling. We have recently decided in the case of State v. Smith, 233 Mo. 242, that the Legislature has power to forbid the exercise of a right otherwise lawful when it deems such inhibition necessary to protect the public health. The cases cited in that case (Booth v. Illinois, 184 U. S. 425; Ex Parte Lucas, 160 Mo. 218; State v. Addington, 77 Mo. 110) are in point here.

The offense consists in carrying on a bucket shop or place wherein pretended sales and purchases are made by the person in charge. It is the carrying on of the business of making pretended trades that is penalized — not the acts or transactions themselves. If, then, the statute applies to all pretended sales or purchases made in the place, the indictment sufficiently individuates the offense when it follows the language of the statute. A pretended sale needs no definition in statute which covers all pretended sales.

IV. The Act of 1907 is in harmony with sections 28 and 34 of article 4 of the State Constitution.

We are concerned here with so much of the act only as relates to bucket shops. The caption of the act is “Crimes and Punishments, Bucket Shops.” Then follows the title proper: “An Act to repeal sections 2221, 2222, 2223, 2224, 2225 and 2226 of Chapter 15, Article 8, of the Revised Statutes of 1899', and to enact new sections in lieu thereof.” Chapter 15 of the Revised Statutes of 1899 is headed “Crimes and Punishments. ’ Article 8 is headed ‘ ‘ Offenses against Public Morals and Decency, or the Public Police and Miscellaneous Offenses.” The repealed sections 2221 and following, relate to bucket shops. While the title to the Act of 1907 did not, in terms, express the subject of the Act, it is apparent from the title that the sections repealed related to bucket shops. Under the title “Crimes and Punishments, Bucket Shops,” no legislator would be misled to suppose that the act proposed to repeal any laws other than those relating to bucket shops. The title made it obvious that the act related to bucket shops, and one need but to refer to the sections mentioned in the title to ascertain the subjects therein treated. The title, taken as a whole, ' clearly showed that the subject of the bill was bucket shops, and that the sections to be repealed related to bucket shops. In thus ruling we are in line with the case of State v. Doerring, 194 Mo. 398.

We deem it unnecessary to discuss the other questions elaborately argued for defendant.

The judgment is reversed and the cause remanded for such further orders'and proceedings as shall be in harmony with the views expressed herein.

Kennish, P. J., and Brown, 3., concur.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    THE STATE v. BEN SHIRLEY, Appellant.
    Division Two,
    March 7, 1911.
    1. BREAKING CUSTODY: Information: Commitment. The law does not require the justice of the peace to designate the constable in the commitment committing an accused to the jail until the day of his trial or until he gives bail, and he need not be named in the indictment charging a breach of custody as the officer to. whom the prisoner was committed, and if he is that recital may be considered as surplusage. The constable must take notice of the issuance of the commitment and deliver the prisoner and commitment to the 'jailer, and the warrant of arrest is his authority for holding the prisoner until he .is so delivered.
    2. -■ — : -: In Custody of • Constable. If an accused is arrested by the constable upon a warrant regularly issued, on a criminal charge, he remains in the custody of the constable until released under recognizance, or is discharged by order of the justice, or is delivered to the jailer of the county; and the issuance of a commitment commanding the jailer to receive and safely keep the prisoner, and its deliverance to the constable, does not any the more place the prisoner in his custody. The law contemplates that the commitment will be delivered to the jailer.
    3. -: From Constable: After Commitment. If the prisoner escape from the constable,'after a commitment to the jailer has been issued, for failure to give recognizance to appear at his trial, and he escapes before he has been delivered to the jailer, the indictment should charge the offense of breaking custody from the constable, under See. 4382, R. S. 1909.
    4. -: -: In Another County. Where the constable, at the request of the prisoner, after a commitment had been issued, started out to find persons who would go his bail bond, and they had passed beyond the boundary line of the county where the offense was committed and the warrant was issued, and while there the constable permitted him to cross back into that county, and he there escaped, he carried his custody with him, and his escape was in the county of his arrest, where the constable by reason of his warrant of arrest had full power to hold him.
    5. -: Variance: Different Initials. Where the indictment charges the justice before whom defendant was arraigned to be J. S. Keener, and the evidence, shows that his name whs J. L. Keener and describes the office he held, there was no material variance.
    6. -: Oral Evidence of Record Matters. Oral evidence of the filing and contents of the information and warrant charging defendant, who is Being prosecuted for breaking custody and escaping, with selling intoxicating liquors without a license, and oral evidence of the docket entries made by the justice, there, being no evidence that they were lost or not obtainable, was reversible error.
    7. INSTRUCTION: Documentary Evidence. When documentary evidence is introduced, it becomes the duty of the court by instruction to inform the jury of its legal effect.
    Appeal from Taney Circuit Court. — Son. John T. Moore, Judge.
    Reversed and remanded.

      R. C. Ford for appellant.
    (1) There can he no escape when the party charged was not in the lawful custody of the officer. The only authority for the officer to hold the appellant was the warrant of commitment and it did not place him in the custody of the constable. Custody implies physical force sufficient to restrain a prisoner from going at large. No moral obligation can be substituted for it. The moment compulsion and force are withdrawn there is no custody. (2) Words and Phrases, 1801; Black’s Dictionary, 312; Rapalje and Lawrence, Dictionary, 331; Wilks v. Slaughter, 10 N. C. 211; Smith v. Commonwealth, 59 Pa. St. 3201. As the warrant of commitment did not place the appellant in the custody of the constable no verbal direction of the justice of the peace could place him in lawful custody. Church on Habeas Corpus, 169; Lilly v. State, 3 Mo. 8; Heaton v. Crain, 88 N. Y. Supp. 303. (2) Defendant’s objection to the introduction of any evidence should have been sustained. The information does not charge him with being lawfully in the custody' of the officer. The warrant of commitment, if it placed him in the custody of any officer, placed him in the hands of the jailer. State v. Maloney, 118 Mo. 112; State v. Griffe, 118 Mo. 188; State v. Shoemaker, 7 Mo. 117.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) Escape, in general, is understood, where a person who is under lawful arrest and restrained of his liberty, either voluntarily or privily evades such arrest and restraint, or is suffered to go at large before delivered by due course of law. 11 Am. & Eng. Ency. Law (2 Ed.) p. 261; State v. Sutton, 84 N. E. 824. At common law there are but two kinds of escape, one lawful or voluntarily, the other negligent. Martin v. State, 32 Ark. 126’; Adam v. Turrentine, 8 Ired. (30 •N. C.) 50. An escape may be without force. 11 Am. & Eng. Ency. Law, p. 262. An escape takes place whenever the person unlawfully departs from the custody of the law, though unguarded at the time. 2 Current Law, p. 1271; State v. Wright, 69 At. (Yt.) 761. (2) The information is sufficient in form and substance. It charges the offense in the language of the statute, and is sufficient to apprise appellant of the nature and cause of the accusation against him. R. S'. 1909, sec. 4382; State v. Whalen, 98 Mo. 222; State v. Lewis, 19 Kas. 260'; 2 Chitty,. Crim. Law, secs. 158-159', p. 157. (3) Appellant complains in his exceptions to the ruling of the court in admitting the witness to testify as to the contents of the charge filed against the appellant with the justice of the peace, Kenner, for selling liquor without a license, and also to the witness testifying to.the commitment issued by the justice, delivered to the constable, and by him served upon appellant, and under which he took custody of the appellant; that those papers themselves would have been the best evidence.
    No bill of exceptions having been filed according to law nothing can be considered by this court but the record proper. If the court finds the evidence should be considered, there was some evidence that these papers had been searched for by the justice and the constable, and that they were unable to find them, therefore, if the papers were lost, it was proper for the officer to testify as to their contents, and the secondary evidence is admissable. This has been the ruling of this court many times. 1 G-reenleaf on Ev., secs. 81, 82, 83, 84, 85, 86; State v. Barnett, 110 Mo. App. 592; State v. Barrington, 198 Mo. 23. (4) Appellant undertakes to show that the crime was committed in Ozark county. Appellant did not take the stand, but the evidence clearly shows that the crime was committed in Taney county and the instructions of the court properly told the jury that if the constable gave-the appellant permission to go into said building, then the place to which the constable gave appellant permission to go would be the place whence he escaped. R. S. 1909, see. 4940'. (5) The bill of exceptions is not identified nor authenticated. The record proper and the bill of exceptions are so intermingled that it is impossible to tell one from the other, or where one begins and the other ends, therefore, there is nothing before the court but the record proper.' Reno v. Fitz Jarrell, 163 Mo. 411; State v. Baty, 166 Mo. 561; State v. Weinegard, 168 Mo. 490'; Olay v. Wholesale Pub. O'o., 200 Mo. 673; Stark v. Zehnder, 204 Mo. 1. c. 448.
   BROWN, J.

Defendant was convicted of breaking custody and escaping before conviction, as prohibited by section 4382, Revised Statutes 1909, and from a judgment fixing his punishment at two years in the penitentiary appeals to this court.

The defendant was arrested upon an information and warrant charging -him with selling intoxicating liquors without a license, in Taney county. He was arraigned before one J. L. Keener, a justice of the peace of that county, and pleading not guilty and failing to enter into a recognizance for his appearance on the day to which the case was continued, the justice issued a commitment, commanding the jailer of Taney county to receive the defendant and confine him until he should by due course of law be discharged. This commitment was delivered to one-Dan Johnson, the constable for Beaver township, in Taney county, who at that time held the defendant in custody upon the original warrant under which he had been arrested.

This constable, at the request of the defendant, started out to find parties who would sign a recognizance for his appearance on the day fixed for the trial, and when they had passed into the edge of Ozark connty, the constable gave the defendant permission to go into a house which stood across the line in Taney county, and while in or near this house, the defendant escaped.

The following errors are assigned by defendant’s counsel: That the information does not charge that defendant was in the custody of the constable at the-time of the alleged escape; 'that the commitment being directed only to the jailer, did not confer custody of the defendant upon the constable; that if the constable ever had any such custody, it was terminated by permitting the defendant to leave his immediate presence and that if there was any escape or breaking of custody, it occurred in Ozark county and not in Taney, in which latter county this prosecution was instituted; that there is a fatal variance between the information and the evidence; that the court admitted improper evidence on the part of the State; and that the instructions did not correctly declare the law.

OPINION.

The information charges that Dan Johnson, constable of Beaver township, in Taney county, brought the defendant before one J. S. Keener, a justice of the peace of that township,' on December 18th, 190.9, where he was charged in an information filed by the prosecuting attorney, with the crime of selling intoxicating liquors without a license; that the defendant’s trial was set for January----, 1910, andUpon his failure to enter into a recognizance for his appearance on the day of the trial, said justice issued a commitment, commanding the jailer of Taney county to receive and safely keep the defendant until by due course of law he should be discharged. The information further charges that: “said warrant, afterwards, to-wit, on the day and year aforesaid, at the township and county aforesaid, was delivered to the said Dan Johnson, then being constable of said Beaver Township, aforesaid, and then and there having the said Ben Shirley in his'custody for the cause aforesaid, and the said Dan Johnson was commanded and required by the said J. L. Keener, the justice as aforesaid, to convey the said Ben Shirley forthwith to said jail and to deliver the said Ben Shirley to'the jailer of said county jail, together with the warrant aforesaid . . . and whilst the said.Ben Shirley continued in said custody and before he was delivered by the said Dan Johnson to the jailer and keeper of the county jail of said county, the said custody of the said Dan Johnson unlawfully and feloniously did break, and out of the custody of the said Dan Johnson unlawfully and feloniously did escape and go at large whithersoever he would, against the peace and dignity of the State.”

The evidence indicated that the constable Johnson had arrested the defendant and brought him before the justice on a warrant.

Defendant’s attorney earnestly contends that the foregoing information does not charge the commission of any crime, in this, that it omits to recite that the commitment was directed to the constable and therefore contains no averment that the defendant was in the custody of the constable at the time of the alleged escape.

The information contains many unnecessary and some repugnant allegations, but these we are required to treat as surplusage. [E. ¡3. 1909, sec. 5115.] It would have been valid 'without reciting the commitment.

The law does not make the justice of the peace a jailer, and if defendant was arrested by the constable upon a warrant regularly issued, on a criminal charge, he remained in the custody of such constable until released under recognizance, discharged by order of the justice, or delivered to the jailer of the county.

"While the constable is not by express terms authorized to take a prisoner to the county jail without a process commanding him so to do, when the various provisions of the law are read together, we think he is. clearly invested with that power. The constable is but an arm of the justice’s court through which its processes and orders are executed. When a prisoner is in the custody of the constable and such prisoner secures a change of venue, the constable must take notice of that fact and produce the defendant before the justice to whom the change of venue is awarded, and for that purpose, no commitment or additional process is required. [E. S. 1909, sec. 4984.]

As the law does not require the justice to designate the constable in a commitment, it follows that he need not be named in such commitment, but must take notice of the issuance thereof and “deliver the prisoner and commitment to the county jailer.

In the case of Turner v. Wilson, 49 Ind. l. c. 585, Judge Biddle, in speaking for the Supreme Court of tliat State, aptly said: “A person arrested by law and put in the custody of the law, remains in custody either actually or potentially until discharged according to law. ’ ’

In Thomas v. County of St. Louis, 61 Mo. 547, this court said: “When a prisoner is arrested under a capias, he is held thereunder until he has been either bailed, committed or discharged.”

The offense for which the defendant was arraigned before the justice was only a misdemeanor, and the constable had the power to take his recognizance for his appearance on the day fixed for the trial. [R. S. 1909', sec. 5126.]

The reason for requiring the issuing of a commitment arose from the fact that the defendant was- to pass out of the custody of the constable', and it was necessary for the keeper of the county jail to be legally informed that the defendant was under arrest upon a charge of violating a criminal law, so that the said jailer would have full evidence of his right to imprison the defendant and be prepared to justify his custody, if called upon by writ of habeas corpus. The law contemplates that the commitment should be delivered to the jailer.

The defendant was already in the lawful custody of the constable, and it would have been an idle formality to have undertaken by commitment to increase his right to- the custody of the said defendant. Hence, we must rule that the indictment properly charged the offense of breaking custody, under section 4382, Revised Statutes 1909.

Another assignment of error is that there was no breach of custody on the part of the defendant because the constable while standing just across the line in Ozark county, permitted the defendant to come back into Taney county to a house some sixty to one hundred yards away, and that by taking the defendant outside of Taney county and consenting for him to leave the immediate presence of the constable, his custody was thereby terminated. We do not find any merit in this assignment. The evidence as to the location of the boundaries between Ozark and Taney counties is somewhat hazy, and practically all the witnesses testified that the house where defendant was permitted by the constable to go and at or in which he made his escape, is located in Taney county. The constable’s permission to the defendant to go to this house carried his custody to that house, so that the escape took place in Taney county, where the constable by reason of his original warrant of arrest had full power to hold the defendant. [State v. Wright, 69 Atl. 761; Riley v. State, 16 Conn. 47.]

In the case of Riley v. State, supra, a prisoner was granted permission by the jailer to go about the jailer’s yard and to his barn some distance away, and while at the barn and when no guard was. in sight, escaped. In affirming a conviction for unlawful escape, the Supreme Court of Connecticut said: “The prisoner cannot shield himself under the misconduct of the jailer. The law has not clothed the latter with the pardoning power. ’ ’

The alleged variance complained of by the defendant is that the name of the justice before whom the defendant was arraigned before his escape, is charged in the information as J. S. Keener, while from the evidence his correct name appears to be J. L. Keener. This variance was so slight that when the name of the justice as charged was supplemented by a description of the office which he held, we do not believe it was in any way calculated to mislead the defendant to his prejudice; and we find that the trial court properly so held. [R. S. 1909, sec; 5114; State v. Jackson, 221 Mo. 478.]

The defendant’s assignment that the court committed error in admitting oral evidence of the filing and contents of the information and warrant charging him with selling intoxicating liquors without a license as well as oral evidence of the docket entries made by thé justice, is well taken. There was no evidence that the information, warrant or justice’s docket were lost, and the justice, after stating that he had these documents in his possession but had left them at home, was not entitled to give oral evidence of their contents, over the objection of the defendant; and the court’s ruling in permitting this to be done, was a clear violation of the well known rule of law which prohibits the admission of oral evidence to prove the contents of public records and written documents. [State v. Dougherty, 106 Mo. 182; Wharton’s Crim. Ev. (8 Ed.), 129.]

Instruction numbered 1 given for the State is erroneous. It should have informed the jury that the warrant under which the defendant was. arrested conferred upon the constable the lawful custody of the defendant at the time of the alleged escape, and authorized said constable to take the defendant to the county jail for his failure to enter into a recognizance, as required by the justice. When documentary evidence is introduced, it becomes the duty of the court by instruction to inform the jury of its legal effect. [State v. Prine, 25 Iowa 231.]

As the judgment must be reversed, upon a retrial the proof of the alleged charge upon which the defendant was arraigned in the justice court should be made by introducing the original information, the warrant upon which the defendant was arrested, and the constable’s return thereon, together with the justice’s docket, showing the entries therein pertaining to that case, or copies of said information, warrant and docket entries duly certified by Justice Keener, or the person in whose lawful custody such documents may be. [E. S. 1909, sees. 6333, 6334, 6335.]

For the error of the trial court in admitting oral evidence of the filing and contents of the information, and the issuance of the warrant and docket entries of the justice, without proof that the same had been lost or were not within the power of the State to produce, the judgment is reversed and the cause remanded.

Kennish, P. J., and Ferriss, J., concur.


author: BBOWN, J.

text:
    THE STATE ex rel. O'MALLEY v. J. P. NIXON et al., Judges of Springfield Court of Appeals.
    In Banc,
    June 7, 1911.
    1. Appellate Jurisdiction: Case Originating Outside District. A court of appeals possesses no jurisdiction of the subject-matter of an appeal granted by a trial court sitting outside the territorial limits of the court of appeals district. .
    2. -: -:--: Appearance. Nor can the parties to an appeal granted by a court sitting outside of the territorial limits of the court of appeals district confer jurisdiction upon the court of appeals to hear and determine the case .by entering their appearance therein.
    2. -: -: -: Certiorari. And where a court of ap- . pea,Is has entertained jurisdiction of an appeal granted by a court sitting outside its territorial district, and has decided the case and entered judgment reversing the' judgment of the trial court, the Supreme Court, in an original action of certiorari, will qua,sh the proceedings of said court of appeals.
    4. -: -: -: Costs. Where the acts of the respondents, the judges of said court of appeals, though illegal and void, were performed in good faith while they were acting in a judicial capacity, the costs of the proceedings in the certiorari will be taxed against relator.
    Certiorari.
    Proceedings in Court on Appeals quashed.

      T. D. Gannon and F. G. O’Malley for relator.
    Tbe Springfield Court of Appeals bad no jurisdiction of tbe case of State ex rel. O’Malley v. Musick et al. State ex rel. v. Nixon, 232 Mo. 496.

      George Lubke, George Lubke, Jr., and Frank H. Braden for respondent.

      The writ of certiorari should be dismissed because relator did not raise the question of territorial jurisdiction in the Springfield Court of Appeals, and did not move to retransfer the Musiek case to St. Louis Court of Appeals. Sec. 2, Laws 1909, p. 394, gives a court of appeals jurisdiction to determine in the first instance what cases it has jurisdiction over. Where the inferior court is given the right to pass on the question it should be given an opportunity to do so before the writ of certiorari is allowed. State ex’rel. v. Smith, 101 Mo. 174; State ex rel. v. Gill, 137 Mo. 627. The writ reaches only questions of jurisdiction. State ex rel. v. Bland, 168 Mo. 1; State ex rel. v. Smith, 173 Mo. 398.
   BBOWN, J.

This is an original action by certiorari in this court to quash the judgment and other proceedings of the respondents as judges of the Springfield Court of Appeals, in a certain suit which originated in the circuit court of St. Louis City, entitled, “State of Missouri at the relation and to the use of Margaret O’Malley, plaintiff, against John U. Musiek, Edward Christ Ette and David M. Musiek, defendants.”

In this last named suit the plaintiff recovered judgment against the defendants in the circuit court of St. Louis City on May 9,1907, for the sum of $5000', from which the defendants under the laws then in force prosecuted an appeal to this court.

Before that appeal was heard by this court the General Assembly increased the jurisdiction of the courts of appeals to $7500; and this court certified said appeal to the St. Louis Court of Appeals, to be heard and determined by that tribunal, pursuant to section 1, Laws 1909, p. 397.

On December 30, 1909, while said appeal was thus duly pending in the St. Louis Court of Appeals, the judges of the several courts of appeals in this State met, and under the provisions of section 3939, Revised Statutes 1909, made an order transferring said appeal to the Springfield Court of Appeals.

Thereafter, the parties to said case of State ex rel. O'Malley v. Musick appeared in said Springfield Court of Appeals and after the cause had been revived against the executor of defendant Ette (who had died), the appeal was duly argued and submitted. On June 6, 1910, said Springfield Court of Appeals filed its opinion and entered judgment in said cause, reversing the judgment of the circuit court of St. Louis.

The relator herein contends that the Springfield Court of Appeals possessed no power or jurisdiction to hear and determine the aforesaid appeal, because of the unconstitutionality of section 3939, Revised Statutes 1909, purporting to authorize the transfer of appeals and writs of error from one court of appeals to another.

The precise question involved in this cause was decided by this court In Banc in the recent case of State ex rel. St. Louis Dressed Beef and Provision Company v. Nixon et al., 232 Mo. 496, wherein we held that the Springfield Court of Appeals possessed no jurisdiction of the subject-matter of an appeal granted by a trial court sitting outside the Springfield appellate district ; and wherein we also further held that the parties to such an appeal could not confer jurisdiction upon such last named appellate court by entering their appearance therein.

It follows that the proceedings of respondents in said suit of State ex rel. O’Malley v. Musick, are illegal and void; and for that reason, the judgment and . all other proceedings of said Springfield Court of Appeals in said cause are quashed; but the acts of respondents having been performed in good faith while acting in a judicial capacity, the costs of this action are taxed against relator.

All concur.


text:
    THE STATE v. JOHN CONNORS, Appellant.
    Division Two,
    March 14, 1911.
    1. GRAND JURY: Eleven Members Present: Perjury. Where twelve men were duly and properly summoned, sworn and impaneled as grand jurors, the fact that one of them was absent, without being discharged, did not disable the remaining eleven from investigating criminal charges; and if defendant was called before said grand jury when only eleven were present, an indictment properly found and returned by a subsequent grand jury, charging him with having then sworn falsely, is not invalid simply because only eleven of the panel were present when he testified.
    2. WITNESS: Child. The question of whether a boy eight and a half years old is a competent witness must be left largely to the discretion of the trial court. And where his preliminary examination and his subsequent testimony show' he was competent, the appellate court will not hold that he was incompetent.
    Appeal from St. Louis City Circuit Court. — Sow. Geo. H. Shields, Judge.
    Affirmed.

      Henry M. Walsh' for appellant.
    (1) Eleven men do not constitute a lawful grand jury, and one composed of only that number present cannot investigate criminal matters. Mo. Constitution, art. 2, sec. 28; State v. Vaugbn, 132 Mo. App. 141; Ex parte Ogle, 61 S. W. (Tex.) 122; Ogle v. State, 63- S. W. (Tex.). 1009; Doyle v. State, 17 Ohio 222; State v. Wilson, 85 Mo. 138; R. S. 1909, sec. 7271. There is no evidence to show that a grand jury, in conformity with the statute, had ever been legally summoned. The evidence shows that there was an order properly made, that subsequently twelve men were sworn in to serve as a grand jury, but there is no evidence to show that they were twelve men selected from forty-five good and lawful men, drawn by the jury commissioner from the grand jury wheel, nor is there any return of the sheriff showing that any number of men had ever been summoned by the sheriff. It may be possible to assume that the sheriff did actually summon forty-five true and lawful men in strict compliance with the law, but it must be an assumption, for there is nothing in the record of the evidence to show that such a thing was done. (2) A careful review of the evidence will not disclose a single line which will show that the defendant saw the shooting of John Hutton, or that he actually knew who shot Hutton, or that he was in a position to see who did shoot him. (3) The child, George Brazier, who was the main witness for the State in the effort to- show the knowledge of Connors, was not such a competent witness as is intended in cases of this character. His full qualifications to tes-' tify as a witness were testified by the court, who, however, said that although the witness did not know the quality or sanctity of an oath, had no fear of punishment if he told anything that was not true, yet “he seems to tell a pretty straight story about what took place.”

      Elliott W. Major, Attorney-General, and Chas. G. Bevelle, Assistant Attorney-General, for the State.
    (1) The evidence fully establishes that the judges of the circuit court, in general term, properly ordered the sheriff to summon a panel of forty-five good and lawful men, whose names should be taken from the grand jury wheel in the manner provided by law, to appear on December 8, to serve as grand jurors for the December term, and that on. said December 8 the sheriff made return of the names of twelve good and lawful men, summoned by him to so serve, and that said men were accepted, impaneled, sworn, and charged by the court, and entered upon the discharge of their duties. This was in compliance with the statute. R. S. 1909, art. 5, chap. 64. (a) Appellant, however, says that there is no evidence to the effect that these particular twelve men were selected from the forty-five men who had been chosen by the jury commissioner from the grand jury wheel, and that there is no return of the sheriff showing that he had, in fact, summoned any one. The court’s record fully meets the last named objection and shows, that the proper return was made by the sheriff. The other objection is overcome by the general presumption of regularity which attends the official acts of a public officer and the proceedings of a court. State v. Orrick, 106 .Mo. 118; State v. Overstreet, 128 Mo. 472; State v. Vaughn, 132 Mo. App. 140; State v. McKee, 21.2 Mo. 138. (b) While the proceedings disclosed by this record, in respect to the summoning of the grand jury, were regular, yet, if they had not been, this would afford no basis for complaint, since the statutes.governing such matters have, since 1853, uniformly been held merely directory, and noncompliance no ground for interference. State v. Bleekly, 18 Mo. 429; State v. Hart, 66 Mo. 208; State v. Matthews, 88 Mo. 121; State v. Gleason, 88 Mo. 582; State v. Jackson, 167 Mo. 291; State v. Riddle, 179 Mo. 293; State v. Crane, 202 Mo. 54. (2) While his insistence, that when a grand jury is impaneled twelve men must be selected, is quite right, yet this falls far short of supporting his claim that a full panel must be present at every stage of the proceedings, and that during the temporary absence of one the body becomes disorganized and cannot transact business. This identical question has been so elaborately discussed and uniformly decided adversely to appellant’s contention that it must now be considered settled. The rule is thus correctly expressed: “If a sufficient number of grand jurors has been impaneled, the absence of one or more jurors does not affect the organization of the grand jury or disable it from investigating criminal charges and finding indictments, providing the minimum number which is required to concur in the finding of an indictment remains and does concur. ’ ’ 17 Am. & Eng. Ency. Law, p. 1281, par. 14; State v. Miller, 3 Ala. 343; State v. Copp. 34 Kas. ■529; State v. Billings, 77 Iowa 421; State v. Ostrander, 18 Iowa 443; State v. Clayton, 11 Rich. 581; State v. Williams, 35 S. C. 352; Glidden v. State, 12 Fla. 567; People v. Simmons, 119 Oal. 1; Smith v. State, 19 Tex. App. 108; Drake v. State, 25 Tex. App. 309; Portis v. State, 23 Miss. 583; State v. Causey, 43 La. Ann. 898. The evidence in this relation discloses that the juror had not been finally discharged by the court, but was merely absent temporarily, and that at the time appellant testified eleven members of the grand jury were present. The cases cited and quoted from by appellant relate solely to the number of grand jurors which must, in the. first instance, be impaneled and do not in any manner deal 'with the question of a lesser number transacting business after a full panel has been legally and properly selected and organized. (3) An examination of the record relative to the test made of the competency of George Brazier as a witness readily discloses his proper qualifications. He was eight and one-half years old, attended school and was in the second reader, realized that the oath he took required him to tell the truth and nothing but the truth, and that if he testified falsely “he would go to the devil and burn up, ’ ’• and that he could also' be sent to the penitentiary while living. ■ In addition to this, the court excluded the jury and heard all his testimony and cross-examination before passing upon his competency, or permitting the jury to hear his testimony, and throughout the test he acquitted himself well and manifested intelligence. State v. Doyle, 107 Mo. 41. The issue of incompetency of a child under ten years is one for the trial judge, and this discretion will not be disturbed on appeal unless affirmatively shown to have been abused, and that that discretion was not abused in this case is evident from the following cases: State v. Scanlan, 58> Mo. 204; State v. Jeffries, 210' Mo. 302; State v. Prather, 136 Mo. 20; State v. Nelson, 132 Mo. 198. (4) Appellant, while conceding the sufficiency of the evidence to establish that he testified before1 the grand jury, as charged, insists that the proof is not sufficient to show that these statements were false. The rule that the testimony of at least' two witnesses is required to convict one of perjury, is not followed by the courts of this day, and has been expressly repudiated by this court. While a conviction will not be sustained upon the evidence of a single uncorroborated witness, it is now generally held that any facts or circumstances which are strongly corroborative of tlie accusing witness will be sufficient. State v. TIeed, 57 Mo. 253; State v. Blize, 111 Mo. 469';' 1 Greenleaf on Ev., sec. 257. The first assignment of perjury is overwhelmingly established by direct evidence, many witnesses testifying to appellant’s presence and sobriety on the occasion of the difficulty. The fact as to whether or'not he was present was material and of the utmost importance, since it was the duty of the grand jury to fully investigate the shooting, ascertain whether he, or some other person, participated therein, and learn from him all he witnessed, if he was present. This was an important link. Ward v. State, 2 Mo. 121; State v. Moran, 216 Mo. 557; State v. Ackerman, 214 Mo. 331; State v. Faulkner, 175 Mo. '546. Sufficient proof of this one assignment would sustain the indictment, .although it contained other charges. State v. Gordon, 196 Mo. 201; State v. Blize, 111 Mo. 473; State v. Taylor, 202 Mo. 5>. The other charges submitted to the jury are also sustained by proof of his presence in the room where the shooting took place, his sobriety on that occasion, his statements and conduct both imnlediately before and after the difficulty. In his brief appellant says the record does not affirmatively disclose that he was in snch a position in the room as to see who did the shooting. The very fact' that he has failed to preserve in this record all the evidence relating to this phase of the proof wholly precludes him from now insisting that the evidence is insufficient. The transcript discloses that a map- of the arrangement of the room, its furniture, fixtures, etc., was exhibited to the jury and witnesses, and by it the witness indicated to the court and jury the whole arrangement. An appellate court will not hold a conviction to be unsupported by evidence where the lower court has before it evidence which the appellate court cannot examine, and witnesses who add to their words physical indications of things- done in connection with the matter, merely because the words fall short. Ma-. honey v. People, 3 Hun 205; Mahoney v. People, 59 N. Y. 659; State v. Bobbitt, 228 Mo. 265; State v. Taylor, 202 Mo. 5.
   FERRISS, J.

On J-anuary 17, 1909; officer Hutton, of the St. Louis police force, was shot and wounded while attempting to quell a. disturbance in the West End Club, in that city. The defendant, who- was present, was cálled before the grand jury as a witness to the shooting. This indictment is founded upon his testimony before that body, where he denied seeing the shot fired, and denied recollection of the events, testifying that he was drunk on that occasion. He was tried and convicted of perjury, March 3, 191.0; in the St. Louis Circuit Court. He appeals to this court to reverse the judgment, and urges in his brief the' following alleged errors:

1. There was no properly or legally summoned grand jury.

2. Eleven members, instead of twelve, constituted the grand jury at the time the defendant was brought before them to testify as to the things upon which the indictment is bottomed.

3. The witness, George Brazier, was not competent to testify, neither as to age nor as to his mental capacity, not being aware of the sanctity of an oath.

4. There was no affirmative evidence to go to the jury on the question of the ability of the defendant to recall what had occurred at the time of the shooting.

5. The instructions of the court were erroneous and misleading and misdirected the jury as to the law.

6. The statements made by counsel for the State, both in the opening and closing arguments, were outside the record and prejudicial to defendant.

We will take these points up in the above order.

First: The usual and proper order was made by the court to summon a grand jury. The usual and prqper return was made by the sheriff, showing that he had summoned twelve good and lawful men. It will be presumed that the intermediate steps provided by law — drawing from the wheel by the jury commissioner, etc. — were properly taken.

Second: Twelve men were duly accepted and sworn as grand jurors, and entered upon the discharge of their duties. The defendant was called before this body of jurors, and examined as a witness concerning a case then under investigation. The charge of perjury, upon which he was convicted, was based upon his testimony before such grand jury. It developed during the trial of defendant that on the day he was examined before the graud jury, one of tlieir number was not pi^esent, and that the testimony of defendant was given before eleven members only of the grand jury. It does not appear that the absent juror had been discharged from the panel. .

Defendant contends that eleven men could not constitute a grand jury for the purpose of hearing and deliberation. His position is that, although nine grand jurors may concur in finding- an indictment, not less than twelve can act as a jury, in hearing testimony and deliberating thereon. He urges that, although the law permits nine men to decide, it still requires the pres.ence of the other three at the hearing in order to get the benefit of their suggestions, opinions and arguments.

The question seems to be one of first impression in this State. The Constitution of Missouri, art. 2, sec. 28,, provides: “Hereafter, a grand jury shall consist of twelve men, any nine of whom concurring may find an indictment ór a true bill. ’ ’

To carry this provision into effect, the Legislature enacted the following statute: “No indictment can be found without the concurrence of at least nine grand jurors; when so foupd, and not otherwise, the foreman of the grand jury shall certify under his hand that such indictment is a true bill, by the following indorsement thereon, thus: ‘A true bill. A. B., foreman.’ ” [Sec. 5090, R. S. 1909.]

Under this law, twelve men must be impaneled and sworn to constitute a legal grand jury, but after such organization, nine may concur in a finding. The law does not in terms require more than nine to participate in a hearing. The question raised here has been decided adversely to the contention of defendant by the courts of several states, construing provisions similar in substance to those found in the Constitution and laws of Missouri. [State v. Miller, 3 Ala. 343; State v. Copp, 34 Kan. l. c. 529; State v. Billings, 77 Iowa l. c. 421; State v. Ostrander, 18 Ia. l. c. 443; People v. Simmons, 119 Cal. 1; Smith v. State, 19 Tex. App. l. c. 108; State v. Lightfoot, 107 Ia. 344; State v. Williams, 35 S. C. l. c. 352.]

The case of Norris House v. State, 3 Green (Ia.) l. c. 515, cited and relied upon by defendant is limited by later decisions in Iowa, cited above, and approved only in so far as it holds that it is proper for the court to impanel the full' number and keep the number full, and hence is no authority for the proposition contended for here. Neither the diligence of counsel nor the researches of the court have discovered any decisions contrary to those above cited. The doctrine of-the above cases is summarized in 17 Am. & Eng. Ency. Law, (2 Ed.) p. 1281, as follows: “If a sufficient number of grand jurors has been impaneled, the absence, death, excusal, or discharge of one or more jurors does not affect the organization of the grand jury, or disable it from investigating criminal charges and finding indictments, providing the minimum number which is required to concur in the finding of an indictment remains and does so concur.”

We think the proposition thus enunciated sound in principle, and so hold..

The objection last discussed is the one on which defendant chiefly relies, as he says in his brief, this is “the one fact which is overshadowing in the whole matter, that there was never an indictment returned in accordance with the Constitution of the State of-Missouri.”

Third-. The record justifies the ruling of the trial court upon the competency of witness George Brazier. The question whether a boy eight and a half years old is a competent witness must be left largely to the discretion of the trial judge. The preliminary examination of the witness, as shown by the record, satisfies us, a;s it did the court below, that he was competent. His evidence before the jury, subsequently received, is clear and convincing as to his fitness to testify.

Fourth: There was ample evidence to justify the jury in finding that the defendant was able to recall what occurred at the time of the shooting.

Fifth: Tlie instructions were full and fair, and' counsel for defendant makes no attempt in Ms brief to argue them insufficient.

Sixth: The record shows no prejudicial error in the .remarks of counsel for the State to the jury.

Finding no reversible error in the record, the judgment is affirmed.

Kennish, P. J., and Brown, J., concur.