36 S.W. 278 | Tex. Crim. App. | 1896
Appellant was convicted for dealing in futures. The charging part of the information alleges that the appellant "did then and there unlawfully conduct, carry on, and transact a business commonly known as a dealer in futures, cotton, grain, meats, and stocks, against the peace and dignity of the State." This prosecution was brought under Art. 377, of the present Rev. Penal Code (1895), which reads as follows: "If any person shall, directly or through an agent or agents, manage or superintend for himself, or shall, as agent or representative of any other person, firm or corporation, conduct, carry on or transact any business which is commonly known as dealing in futures in cotton, grain, lard, any kinds of meat or agricultural products, or corporation stocks, or shall keep, any house, or manage, conduct, carry on or transact any business commonly known as a produce or stock exchange, or bucket-shop, where future contracts are bought and sold, with no intention of an actual bona fide delivery of the article or thing so bought or *196 sold, such person, whether acting for himself or for another, as aforesaid, shall be deemed guilty of a misdemeanor," etc. Motion to quash the information was urged upon several grounds. We are of opinion that the motion ought to have been sustained. In order to constitute this offense, the party must not only conduct, carry on, or transact the business commonly known as "dealing in futures in cotton, grain, lard," etc., but it must also be alleged that future contracts were bought or sold, or both, as the case may be, with no intention of an actual bona fide delivery of the article or thing so bought or sold, and the particular article or thing dealt in, bought or sold, should be specified in the information. In other words, the information should specifically state the offense of which the State expects to prove the accused guilty, so that, if a judgment is rendered on the trial, it can be pleaded in bar of a subsequent prosecution for the same offense. As we understand this statute, the dealing must be in futures in regard to some one or more of the particular articles or things mentioned in the statute, and the contracts must be operative in the future, wherein there is no intention of an actual bona fide delivery of the article or thing so bought or sold. It is not a violation of the law to deal in futures, where the thing or article sold or bought is to be delivered under the terms of the contract. The information does not meet the requirements of the law. It simply charges that appellant conducted, carried on, and transacted a business commonly known "as a dealer in futures, cotton, grain, meats, and stocks." This he could do legitimately, and against which there is no legal denunciation. The information is also fatally defective in not charging that the dealing in futures was "in cotton, grain, meats, and stocks." The word "in," preceding the article, with reference to which the dealing in futures was carried on, is a necessary word, by the statutory definition of this offense. The statutory dealing in futures must be carried on, conducted, or transacted "in cotton, grain, lard, any kinds of meat or agricultural products, or corporation stocks." It is not an offense to simply deal in futures, or cotton, etc. The dealing must be in futures "in cotton," etc. Rev. Penal Code, 1895, Art. 377. The motion to quash should have been sustained. The judgment is reversed, and the prosecution ordered dismissed.
Reversed and Dismissed.
