Opinion
Opinion delivered March 6, 1950.
1. — Criminal Law — Instructions. Appellate court is precluded on appeal from passing upon claimed error in state's instructions where there was no reference to any of state's instructions in motion for new trial.
2. — Indictment and Information — Fraudulent Conveyances — Bulk Sales Law. Under bulk sales law requiring vendor of stock of merchandise to furnish to vendee upon demand a written statement of names and addresses of creditors of vendor, portion of information alleging defendants willfully, unlawfully and knowingly sold stock of merchandise, fixtures and equipment, to certain persons, did not attempt to charge a criminal offense but was a necessary allegation preliminary to charging an offense, and words "willfully, unlawfully and knowingly" would be considered as surplusage and disregarded.
3. — Fraudulent Conveyances. In prosecution under bulk sales law information charging that defendants furnished to vendee a written statement purporting to be a full, accurate and complete list of creditors of vendors, that vendors alleged there were no creditors and no debts except as disclosed, and that vendors knew that they were indebted to three named creditors and that a material portion of statement was false, sufficiently charged affirmative representation made by vendors and sufficiently alleged that the three named creditors were not among those divulged by vendors and such representation was material and false.
4. — Fraudulent Conveyances. Information based on violation of bulk sales law charging that vendors furnished to vendees a written statement purporting to be a full, accurate and complete list of names and addresses of all creditors of vendors and that vendors "did unlawfully, willfully and knowingly fail to include the names of all creditors of vendors and amount due each creditor", sufficiently charged vendors with failure to include the names of all creditors and amount due each as required by the statute. Secs. 3517, 3520, R.S. Mo., 1939.
5. — Fraudulent Conveyances. In prosecution for violation of provisions of bulk sales act, information which alleged that statement furnished by vendors was sworn to under oath was not defective because of failure to allege therein that oath was taken by the vendors, or who administered the oath, or whether such person was in fact qualified at that time to administer oath, such questions, if disputed, being matters of proof.
6. — Fraudulent Conveyances. Statute providing that any vendor of merchandise who shall knowingly and willfully make "any statement required by said section, (3517)", of which any material portion is false, shall be guilty of a misdemeanor, means a written statement furnished by vendor for the purpose and with the intent of complying with the requirements of section 3517, and information was not defective because statement of vendor was not in the form and did not contain all the matters specified in Section 3517, Mo. R.S.A., Secs. 3517, 3520.
7. — Indictment and Information — Bulk Sales Law. In prosecution for violation of provisions of bulk sales law, information sufficiently charged every essential element of the offense, informed defendants of what they must be prepared to meet and was sufficient to support a plea of double jeopardy.
8. — Indictment and Information. The same strictness of pleadings is not required in misdemeanor cases as in cases of felonies.
Appeal from Circuit Court of Howard County. — Hon. Lawrence Holman, Judge.
AFFIRMED.
Sapp Miller, George C. Miller and Luman Spry for appellants.
The amended information was vague and indefinite and the appellants could not know with what they were charged so as to make proper answer thereto. State v. Strack, 292 S.W. 63, 64; State v. Hayward, 83 Mo. 299, 304; State v. Barnes, 222 S.W. 848; State v. Thieranf, 167 Mo. 429; State v. King, 285 S.W. 794; State v. Schultz, 295 S.W. 535; State v. Hoffman, 297 S.W. 388; State v. Sikes, 281 S.W. 142; State v. Epstein, 244 P. 388; Art. 1, Section 17, Constitution of Missouri 1945; Section 3517, R.S. Mo. 1939; Section 3520 R.S. Mo. 1939; Section 4276 R.S. Mo. 1939; Remington's Revised Statutes of Washington Ann., Ch. 2, Sections 5832, 5834. The amended information was indefinite and uncertain in that the Statement alleged to have been made by the appellants was not quoted in part or in full. State v. Hayward, 83 Mo. 299; State v. Thieranf, 167 Mo. 429; State v. Strack, 292 S.W. 63, 64; Bradlaugh v. The Queen L.R. 32; B.D. 607 S.C., 3 Am. Crim. Rep. 464; United States v. Noelke, 1 F. 426; Wilson v. United States, 275 F. 307, 312; Cochran and Sayre v. United States, 157 U.S. 286; Keys v. United States, 126 F.2d 181; State v. Epstein, 244 P. 388. The amended information did not charge an offense at common law and did not allege sufficient facts to bring these appellants precisely within the definition of any statutory offense under the laws of the State of Missouri. State v. Timens, 232 Mo. 177, 184; State v. Strack, 292 S.W. 63, 64; Hart v. Evans, 330 Ill. App. 385, 394; 12 R.C.L. Section 54, Page 525; Section 3517 R.S. Mo. 1939; Section 3520 R.S. Mo. 1939; Revised Code of Delaware 1935 Ch. 77, Art. 5, Sec. 10; Illinois Revised Statutes 1945 Ch. 121½, par. 79; Minnesota Statutes 1945 Ch. 513, Section 513.18; Oklahoma Statutes Ann. Title 24, Section 72; Wisconsin Statutes 1947 Ch. 241, Section 241.20; State v. Small, 280 S.W. 1033; State v. Markus, 171 Mo. App. 38. The Court erred in giving state's Instructions S-1 and S-2. Phelps Stone Supply Co. v. Norton, 52 S.W.2d 413, 415; Gillioz v. State Highway Commission, 153 S.W.2d 18, 26; Carroll v. Young, 267 S.W. 436, 440; State v. McGehee, 274 S.W. 70, 72; State v. Schultz, 295 S.W. 53; Section 3517 R.S. Mo. 1939; Section 3520 R.S. Mo. 1939.
W.D. Settle for respondent.
No error was committed by the trial court in overruling appellant's motion to quash. The information in this case sufficiently meets the accepted test and purpose of informations and indictments. Wilson v. U.S., 275 F. 307, 310; Cochran and Sayre v. U.S., 157 U.S. 286; Keys v. U.S., 126 F.2d 181; State v. Niesman, 101 Mo. App. 507; Hagner v. U.S., 285 U.S. 427, 431; U.S. v. Goldsmith, 68 F.2d 5, 7; State v. Davies, 80 Mo. App. 239; State v. Wilson, 237 S.W. 776; State v. Davis, 58 S.W.2d 305; State v. Hayward, 83 Mo. 293, 309; Section 3952, R.S. Mo. 1939; Section 3517, R.S. Mo. 1939; Section 3520, R.S. Mo. 1939. It was sufficient to follow the language of the statute since the statute describes the entire offense by setting out facts constituting it. State v. Jones, 164 S.W.2d 85; State v. Florian, 200 S.W.2d 64; State v. Moten, 207 S.W. 768; State v. Bersh, 207 S.W. 809, 813; State v. Fleming, 90 Mo. App. 241; State v. Cox, 32 Mo. 566; Wharton, Crim. Pleading and Practice, Sec. 220; Section 3517, R.S. Mo. 1939; Section 3520, R.S. Mo. 1939. The same strictness of pleading is not required in misdemeanors as in felonies. State v. Jones, 164 S.W.2d 85; State v. Granger, 199 S.W.2d 896; Section 3952, R.S. Mo. 1939; State v. Ferris, 16 S.W.2d 96. Appellants' assignment of error to the Court giving State's Instructions S-1 and S-2 was not preserved for review on appeal since it was not raised in appellants' motion for new trial. State v. Hoffman, 297 S.W. 388, 390; State v. Hawes, 60 S.W.2d 684; State v. Shilkett, 204 S.W.2d 920.
The defendants were convicted of violating Sec. 3520, R.S. 1939, which declares certain acts of certain vendors a misdemeanor. They have appealed.
The defendants challenged the sufficiency of the information by a motion to quash, which was overruled, and this is the only error properly preserved.
Defendants do seek to urge error in State's instructions S-1 and S-2, but we have carefully examined the motion for new trial and find no reference to said instructions or to any others given on behalf of the State and, under such circumstances, we are precluded from considering that question. Sec. 4125, R.S. 1939. For an array of cases on this subject, see, 9 Mo. Dig., Criminal Law, Par. 1064 (7).
The prosecution is based upon certain alleged violations of our "Bulk Sales Law," which is codified under the general chapter of "Fraudulent Conveyances." Diligent and able counsel have been unable to find any prior conviction in this state for violation of said Act, and we have found none.
Since the only error preserved challenges the sufficiency of the information, we copy the material portion and, for convenience and clarity, are dividing the allegations into certain numbered paragraphs and referring to the parties as vendors and vendees, and eliminating the names of certain alleged undisclosed creditors and the amount due each.
The information charges that the defendants, on a certain date, (1) "* * * did then and there willfully, unlawfully and knowingly sell the major part in value or the whole of a stock of merchandise, fixtures and equipment pertaining to the business of the said Frank E. Short and J.W. Short to one G. Ben Dyer and Marie K. Dyer, and (2) did then and there at the time of said sale, furnish to the said (vendees) a written statement purporting to be a full, accurate and complete list of the names and addresses of all the creditors of the said (vendors), in which said statement the said (vendors) unlawfully, willfully and knowingly alleged there were no creditors and no debts owed by (them), except as fully disclosed to the said (vendees), which said statement was certified and sworn to under oath by the (vendors), whereas the (vendors) well knew that they were indebted to (three certain named creditors and the amount due each), and (3) the said (vendors) unlawfully, willfully and knowingly did make or deliver or cause to be made or delivered a statement as required by law, of which a material portion was false, and (4) did unlawfully, willfully and knowingly fail to include the names of all creditors of the said (vendors) and the amounts due each creditor as set out above, contrary to the form of the statute * * *." (Italics ours.)
The statutes under which this prosecution is brought are Secs. 3517 and 3520, R.S. 1939. The material part of Sec. 3517 requires a vendor, who is selling all or the major part of a stock of merchandise, fixtures and equipment, to make and deliver to the vendee upon vendee's demand "* * * a written statement, * * * of the names and addresses of the creditors of such vendor, together with the amount of indebtness due or owing by said vendor to each of said creditors, and certified by the vendor, under oath, to be a full, accurate and complete list of his creditors and the amounts owing to each to the best of his knowledge and belief * * *."
Sec. 3520 provides, "Any vendor of merchandise * * *, who shall knowingly and willfully make * * * any statement required by said section, ( 3517), of which any material portion is false or shall knowingly and willfully fail to include the names of all the creditors of said vendor and the amounts due each in said statement shall be guilty of a misdemeanor * * *." (Italics ours.)
Defendants' assignments of error are to the effect that (a) the information is vague and indefinite and they could not know with what they were charged; (b) that the statement alleged to have been given by the defendants was not quoted in part or in full in the information, and (c) that the information did not allege sufficient facts to bring the defendants precisely within the definition of any statutory offense.
They argue that the language, which we have designated as Par. (1), attempts to charge a criminal offense but is insufficient to do so. There is no merit in this contention. That language alleges merely the sale of merchandise, fixtures and equipment as defined in Sec. 3517. This is a necessary allegation preliminary to charging an offense under Sec. 3520. The mere fact that the information used the words, "Willfully, unlawfully and knowingly" in describing the sale, are unnecessary and will be considered as surplusage and disregarded. State v. Inks, 135 Mo. 678; State v. Selleck, 55 S.W.2d 469; State v. Null, 355 Mo. 1034, 199 S.W.2d 639.
They next argue that the language of Pars. (2) and (3) is insufficient to charge an offense because the affirmative representation made by the defendants in the written statement is not sufficiently set out and that there is no averment that such purported representation was false. This part of the information charges that the defendants furnished to the (vendees) a written statement purporting to be a full, accurate and complete list of the names and addresses of all the creditors of said (vendors), "in which said statement the said (vendors) unlawfully, willfully and knowingly alleged there were no creditors and no debts owed by the said (vendors) except as fully disclosed to the said (vendees) * * *, whereas the said (vendors) well knew that they were indebted to (three named creditors), * * * and the said (vendors) unlawfully, willfully and knowingly did make * * * a statement as required by law, of which a material portion was false, * * *." We think this language sufficiently alleges the affirmative representation made by the vendors; that is, that the vendors had no creditors and owed no debts except those divulged to the vendees. It is not necessary to copy the whole of the written statement; all that is necessary is to allege the part charged to be false.
However, defendants argue that the information does not specifically allege that the three named creditors listed in the information were not among the creditors whose names had been divulged to the vendees. We think they fail to take into consideration the language immediately following the allegation of the representation, which is, "whereas the vendors well knew they were indebted to (three named creditors) * * * and the said vendors unlawfully, willfully and knowingly made * * * a statement * * * of which a material portion was false, * * *." When this language is considered, as it must be, in connection with the allegation of the representation, it means, and can only mean, that the three named creditors were not among those divulged by the vendors and that such representation was material and was false.
Defendants also argue that the information does not sufficiently charge the defendants with failure to list the names of all the creditors, together with the amount due each. Referring again to Par. (2) of the information, we find that it charges that the defendants furnished to the vendees a written statement purporting to be a full, accurate and complete list of the names and addresses of all the creditors of said (vendors) in which said statement the vendors asserted there were no creditors and no debts owed by them, and Par. (4), which must be read in connection therewith, alleges that the (vendors) "did unlawfully, willfully and knowingly fail to include the names of all creditors of the said (vendors) and the amount due each creditor as set out above, * * *." The information had theretofore set out the names of certain creditors and the amount due each. We think this language is sufficient to charge the defendants with failure to include the names of all the creditors and the amount due each as required by Sec. 3520.
Defendants also contend that the information is defective because it alleges that the statement was sworn to under oath but fails to allege that an oath was taken by the defendants, or who administered the oath, or whether such person was in fact qualified at that time to administer an oath. We are cited to no Missouri statute or decision and know of none which declares that such allegations must be made in the information. We think such questions would be a matter of proof, if disputed.
Defendants' last contention is that the written statement, referred to in the information, is not such a statement as required by Sec. 3517 and, therefore, no prosecution can be maintained for a violation of it under Sec. 3520. It is true the last section requires that the statement shall be such as required by Sec. 3517. The question is, what does that mean? Defendants argue that it means the statement must be in the form and contain all the matters specified in the above quoted part of Sec. 3517; that is, it must list the names and addresses of all creditors, together with the amount of indebtedness due each, and be certified under oath. We think this reasoning is unsound. If the statement fully and completely complied with Sec. 3517, then there could be no violation and no prosecution, and Sec. 3520 would have no meaning or purpose. It is our opinion that the italicized clause of Sec. 3520 means a written statement furnished by the vendor for the purpose and with the intent of complying with the requirements of Sec. 3517. This conclusion is supported by the fact that Sec. 3520 makes it a misdemeanor if any material portion of the statement is false or if the name of any creditor or the amount due him is omitted. The very essence of the criminal offense is that the written statement does not comply with Sec. 3517 in certain particulars.
This information could have been made more definite and certain, but we think it is sufficient to charge every essential element of the offense and to inform the defendants of what they must be prepared to meet, and is sufficient to support a plea of double jeopardy. The same strictness of pleadings is not required in misdemeanors as in felonies. State v. Granger, 199 S.W.2d 896; State v. Jones, 164 S.W.2d 85.
Having concluded that the information is sufficient, and there being no other properly preserved errors, it follows that the judgment should be affirmed. It is so ordered. All concur.