84 Mo. App. 584 | Mo. Ct. App. | 1900
Defendant was indicted and convicted for violating the provision of section 3933, Revised Statutes, 1889, imposing a penalty for keeping a place where dealing in “margins” and “futures” in stocks and agricultural products is prohibited. That statute declares that it shall be unlawful for any person to keep a place wherein is conducted the buying or selling of stocks, grain or other products, either on margins or otherwise without any intention of receiving
One of the chief objections urged against the judgment is that the evidence failed to show that defendant kept the place thus forbidden by the statute. We have gone carefully over the evidence and find that it amply supports the verdict. It is true that most of the witnesses used language in their guarded testimony that would, judged by the words alone, negative the requisites of the offense. But the plain inference from their testimony in many instances negatived the language used. If there is a cloudless sky at noon day the inevitable inference.is that the sun is shining and a witness stating that it is not will not alter such inference. The defendant kept a room in the town of Boonville in which his main furniture was a black board and a telegraphic instrument. Market quotations from Chicago were kept posted on the board and grain (principally wheat) was bought “in the hundreds of thousands of bushels.” Though the witnesses stated that they expected to deliver the wheat when sold and expected to receive it when bought, yet in all the time these “'deals” were going on in defendant’s place no wheat was ever delivered by the “seller” or received by the “buyer.” The plain reason for this was that ho seller ever had any to sell and no buyer ever saw any he bought. Though those who frequented the place were in a constant state of expectancy there was never a realization.
The mode of conducting the business, as described by witnesses without quoting literally their language, was for a prospective buyer or seller to go into defendant’s place and employ him as agent to buy or sell, as the case might be, on
But it is urged that this did not make a case of buying or selling at defendant’s place at Boonville—that there was a mere order given there to be communicated to Chicago and that the sale or purchase was made in Chicago. And that therefore defendant should be declared not guilty on the authority of the case of State v. Gritzner, 134 Mo. 512. That case was for sale in the manner prohibited, and arose tinder sections 3931 and 3932, while this case is for the keeping of a place and arises under section 3933. The trial court gave full effect to the decision in the case cited by directing the jury that if the place was kept by defendant for the purpose of placing the deals by telegraphic orders with other parties in Chicago, to be there accepted or rejected, to find him not guilty. Under this instruction the jury must have found that the purchases, offers to purchase, sales and offers to sell, that is to say, the deals, were made by the patrons of the place with the defendant himself, and that his agency to make the purchase or sale for them in Chicago was a subterfuge. We think there was evidence sufficient to justify the jury in re
In the case of Crawford v. Spencer, 92 Mo. 505, the court uses this language: “If we look to the bare assertion of the parties on the one side and the other, we might well conclude that plaintiff has failed to make out a case; but if we look to the attending circumstances, which we must do, we can but conclude that these transactions, as between the plaintiff and the brokers, were mere speculations upon the future price of wheat and corn, with a complete understanding on the part of both, that no grain was, in any case, to be received or delivered. It is true that the contracts were all made in the names of the brokers, the name of the real principal not appearing; that they were in writing and under the rules of the exchange, the purchase? had the right to call for the commodity; but they were made by the plaintiff’s brokers in compliance with their understanding with him, and, it is .believed, with an implied understanding with the persons with whom the deals were made, that no grain was to be delivered.” And in Schreiner v. Orr, 55 Mo. App. 411, the court says: “It has been repeatedly held by the appellate courts of this state that ‘all the attending circumstances’ of a contract for purchase or sale for future delivery, as well as the statements of the parties, are evidentiary. We can not hold from the circumstances of the contracts, the acts and doings of the parties thereunder, and their relative situations, that there was no substantial basis from which the jury could have justly inferred that it was the intention of Wilson and appellants that there should not be a delivery. The finding of the jury on this issue, under the facts and circumstances shown in this record, it not reviewable by us.”
As illustrative, we quote from what we said in a case for the illegal sale of intoxicating liquor: “But even beyond all