State v. McMillan

69 Vt. 105 | Vt. | 1896

Rowell, J.

This indictment, which is demurred to, contains two counts. The first is based on section 5128 of the Yt. Sts., and the second, on section 5130. These sections, with the others under the head of “Stock Gambling,” were first passed in 1888, in an act to suppress “bucket-shops and gambling in stocks, bonds, petroleum, cotton, grain and provisions.” It was the intention of that act, as therein declared, to prevent, punish and prohibit within this State, the business engaged in and conducted in places commonly known and designated as bucket-shops, including the practice commonly known as bucket-shopping by’ persons, corporations, etc., who ostensibly carry on the business or occupation of commission merchants or brokers in grain, provisions, petroleum, stocks and bonds. Although this declaration of intention is not contained in Yt. Sts., it may be considered in construing the sections in question.

Section 5128 provides that no person nor corporation shall keep nor cause to be kept a bucket-shop, office, store nor other place, in which is conducted or permitted the pretended buying or selling of stocks, bonds, etc., on margins or otherwise, without any intention of receiving and paying for the property so bought or of delivering the property so sold; nor in which is conducted or permitted the pretended buying or selling of such property on margins; nor when the party buying or offering to buy such property does not intend actually to receive the same if bought or to deliver it if sold.

The first count alleges that the prisoner kept and caused to be kept “a bucket-shop, to wit, an office, in which said bucket-shop, to wit, said office, was then and there conducted and permitted the pretended buying and selling of stocks, bonds,” etc., following the words of the statute. This does not, directly at all events, charge the prisoner with conducting nor permitting the business that made said office a bucket-shop. If it charges him with it at all, it is only by inference and argument, which is not enough. For aught that can properly be gathered from the count, the business may have been conducted and carried on there by others without the permission or even the knowledge of the prisoner. The offense created by this section is the keeping of a bucket-shop, and that is what the prisoner is charged with; but in order to be guilty of that offense, he must in some assignable way have conducted or permitted the business that made the place a bucket-shop. The precedents for keeping gaming houses are instructive. After alleging the keeping of the house, they directly connect the prisoner with the business carried on therein that makes the place a gaming house, by alleging that he caused and permitted divers persons to frequent and come together there to game, and to be and remain there for that purpose, and that he procured, permitted and suffered them there to game and play together. Ill Chit. Crim. Law 673 and following. The first count, therefore, is bad for the reason stated, which makes it unnecessary to consider the other objections made to it.

Section 5130 provides that it shall not be necessary in order to commit the offense defined in § 5128, that both the buyer and the seller agree to do any of the acts therein prohibited, but that the offense shall be complete against a person or corporation thus pretending or offering to sell or to buy, whether the offer is accepted or not; and that a person or corporation communicating, receiving, exhibiting, or displaying in any manner such offer so to buy or to sell, or any statements or quotations of the prices of such property, with a view to such transaction, shall be deemed an accessory, and punished as provided in case of one who violates § 5128.

It is upon the last part of § 5130 that the second count is based. But that section does not create a substantive offense, independent of the offense created by § 5128, which is the keeping of a bucket-shop, but creates one that is accessory to it, as the section declares; and the things prohibited by the section, in order to constitute an offense under it, must be done with a view to transactions mentioned in § 5128, namely, to transactions in a place the keeping of which is there prohibited. This count makes no allegation that the things complained of were done with a view to transactions in such a place, and is therefore bad.

Judgment reversed, demurrer sustained, indictment adjudged insufficient and quashed, and the prisoner discharged.