*1 No. People the State of Colorado v. Charles E. Blair 1133) (579 P.2d Rehearing June denied Decided June 1978. *3 MacFarlane, General, J. D. Attorney Robbins, David W. Deputy, Donovan, General, Edward G. Metcalf, Solicitor Assistant, Sharon S. Rees, Assistant, David K. for plaintiff-appellee. Decker, Sorenson,
Clarence A. David A. for defendant-appellant. En Banc. of the Court. opinion GROVES delivered JUSTICE
MR. of 17 counts of securities convictions of defendant’s appeal This is (b) of section subsection for violation of the counts were fraud. Sixteen violation subsection 11-51-123, was for while one count (c). provides: 11-51-123 Section (1) any per- is unlawful for It prohibited practices. and other
“Fraudulent direсtly offer, sale, any security, purchase or son, with the in connection indirectly: defraud; device, scheme, or artifice “(a) employ any To to state a of a material fact or omit “(b) make untrue statement any To made, light in order to make statements necessary material fact made, misleading; or which circumstances under act, engage operates or course of business which “(c) practice, To upon any person.” fraud or operate would as a deceit of the board of the three president The defendant was and chairman Center, Calvary Life Inc. and corporations: Temple, Colorado nonprofit church; Cen- Calvary E. is a Life Temple The Charles Blair Foundation. homes, Inc., including Life ter, operated nursing owned one named Center; E. television films de- Charles Blair Foundation made signed for Life All securi- money corporations to raise Center. three sold through single Development.” “Department “Department ties managed by approx- Nance and had staff of Development” was Wendell imately ten salesmen. (b) in the indictment were
The 16 counts of violation of subsection made from misrepresentations based on and omissions March *4 January in with the to twelve through connection sale investments (c) alleged to have oc- different investors. The violation of subsеction 13, 7, continuing on a basis from December 1971 to March 1974. curred individually Center Blair were Life and Charles E. Foundation continuously corpora- from On a combined basis the three insolvent 1971. 30, August September By tions had a continuous fund deficit after 1973, net had seven corporations worth deficit of the three reached dollars; dollars; of 2.6 they projected million also had annual losses million cash indicated a serious likelihood that current projections and their flow 30, 1973, obligations paid. September could be on a consolidated As $14,000,000 in corporations the three had over unsecured debt basis $9,000,000 enough did not have income in secured debt. Since almost obligations, being was paid princi- meet their interest interest out of the 30, 1973, Tem- pal September Calvary of current investments. as of Also began pay- interest ple delinquencies and Life Center have as some During early financial ments to investors. late 1973 condition of the continued to corporations pay- worsen and all interest stopped corpora- ments to investors in March 1974. On June petitions reorganization tions filed for proceedings bankruptcy court. was never to potential Disclosure made investors that the corporations addition, were either insolvent or in serious financial In trouble. no disclo- sure was made that the investors’ investment in would principal be used to on pay prior interest investments. The defendant also made various affirm- including a misrepresentations, ative statement to his securities salesmen April 1973 that the liquidation corpora- value the assets of the three by fact, exceeded their tions liabilities three million dollars. In the reverse true. was In case a would liquidation, probably liabilities have ex- ceeded the amount realized from by assets at least six million dollars. all, Throughout it representatives the sales and the by brochures issued “Department Development” assured investors that their investments safe and were secure. Following
A found jury guilty. jury’s the defendant verdict of counts, guilt judge as to the 17 suspended the defendant’s sentence and placed probation years. him on for five As a probation, condition of $12,750.00 defendant was ordered pay ($750.00 count). fine of per See section 1973; 11-51-124(1), 32(d)(2)(D). Crim. P.
I. view, In our primary question before jury us whether the correctly instructed necessary the mental state to constitute crimi- nal violation of 11-51-123. provisions The criminal as to section 11-51-123 provided by 11-51-124(1): section (1) “Criminal penalties. willfully Any who person any provisions violates and, of this thereof, article ... of a guilty felony upon conviction shall punished by dollars, fine not more than five thousand or by impris- onment in the state for penitentiary not less one year than nor more than years, three or by both such fine and imprisonment.” (emphasis jury given instructions provided this case in part: “To joint constitute a crime there must be the operation of act forbid- den law an omission to perform an act required by law and culpa- ble mental culpable state the Defendant. A mental state means inten- tionally ¤ [*] * * knowingly, those terms are explained in this instruction.” ‘knowingly’ “A acts respect conduct or ato circumstance aware, described aby defining statute an offense when he is or reasonably aware, should be that his conduct is of that nature or that the circum- stance exists.”
* * * * “With respect to the crime of Fraudulent and Other Prohibited Prаctices Securities, the charged Indictment, in Sale of as in of Count One person commits that crime if: sale, security, he know- offer, any or purchase with the connection
“In which or act, operates of business practice or course engages any in ingly any person. upon or deceit as a fraud operate would therefore: crime are elements of that “The offer, sale, any security. purchase or with the
“(1) In connection “(2) Knowingly, business, act, or course Engages any practice in
“(3) deceit, a fraud or operate or would as “(4) operates Which “(5) Upon any person.”
* * * * Prohibited Practices Fraudulent and Other respect the crimes of “With Seventeen, through in- Securities, in Two charged Counts Sale of Indictment, if: clusive, commits those crimes of the offer, sale, or any security by or purchase with the “In connection makes untrue indirectly, knowingly any he directly or person, other any necessary fact omits to state a material of material fact or statement made, un- light of the circumstances in the to make the statements order made, misleading. they are not der which crimes are therefore: elements of those
“The offer, sale, any security. purchase “(1) In connection “(2) person, other By
“(3) Directly or indirectly,
“(4) Knowingly, fact, or (a) any untrue statement of a material
“(5) Makes to make the state- necessary fact order “(b) Omits to state material made, made, they light under which are of the circumstances ments misleading.” not whole, whether, these when as a instructions taken charged. was of which the defendant set forth the offenses
adequately (1) in the statute “willfully” contends that used The defendant “knowingly” (2) “reasonably not include should not mean does does aware.” models, adequate support While the instructions are conviction. “will begin Our with the definition word inquiry must “will The effect of word as used in the context of this statute. fully” “knowingly.” as used in this statute is fully” 11-51-123 and background little is in order. Section
A See Act, 101 and Securities sections 1973 came from Uniform Act Securities is substan- 768. Section 101 of Uniform U.L.A. Ex- as thе well-known Rule 10b-5 the Securities tially same adopted pur- Rule change 17 C.F.R. 10b-5 Commission. §240.10b-5. 10(b) Securities authority granted to the to the S.E.C. under suant § *6 468 Act 17(a) of the Securities § was modeled upon Act of 19341
Exchange Note, §101,7 U.L.A. Commissioners’ 1933, §77q(a). U.S.C. 15 Loss, also, §101, Commentary L. Commentary Draftsmen’s See 695-96. (1976). Act on Securities 6-8 the Uniform equivalent
The to section 11-51-124 is the Uniform Securities §409 Act. 7 U.L.A. 768. The Commissioner’s Note as refers his com- §409 §204(a)(2)(B) ment under for the definition of “willfully.” This reads: the term have construed (B): the federal courts and the SEC “Clause As unintention- is that the acted required ... all that ‘willfully’ proof ally in the doing. sense that he was aware of he what was Proof of evil mo- law, knowledge tive or intent to violate the being law was vio- lated, is required. principal not ‘willfully’ function the word is thus legislative to serve as a hint self-restraint the Administrator.” Thus, twin, “awareness” and its “knowingly,” are the essence of “will- fully.” definitions, noted,
In its as already the court stated that a person acts “knowingly” aware, when aware, he is or reasonably should be that his conduct is of a certain nature or that certain circumstances por- exist. The stating tion of the instruction “reasonably should be aware” should not have result, been included. As a we are confronted with the as to whether the inclusion of this clause was Viewing reversible error. in- whole, structions it apparent that, that the thrust thereof was in or- der for the jury defendant, to сonvict the it must find that actually he knew that the misleading. statements were
Further, reading that, it manifest from the of this record view of overwhelming weight evidence, the defendant knowingly and with an awareness committed the acts as to which he was found guilty. In considering the gravity clause, the error of the “reason ably aware,” should be we feel it improper not analogy draw an to the holding in Chapman California, v. 386 U.S. 87 S.Ct. (1967). L.Ed.2d 705 that, it There was stated for a constitutional error to be considered prejudicial, reviewing court must declare that “it beyond harmless a reasonable doubt.” Similarly, here we conclude that, considering overwhelming evidence and the thrust the instruc tions, on an ovеrall basis the beyond error was harmless a reasonable doubt. assigns defendant error to the give refusal to following spe-
cific intent instruction: charged
“The crime
in this case is a
requires
serious crime which
proof specific intent
intent,
before the defendant can be
Specific
convicted.
generally,
§78j(b).
Hochfelder,
See
&
U.S.C.
Ernst
Ernst 425 U.S.
96 S.Ct.
(1976).
We indicate first
require-
is
There
no
for these criminal offenses.
required
defendant
not
law in order to
to violate the
intended
purposely
that the defendant
ment
Charnay,
With
these securities law
nothing
or
productive
little or
matters and adds
intent” confuses
“specific
Cox,
See,
896,
“You instructed that faith and and are security charges is an absolute as to It the Defendant fraud. defense be, enterprises find the Defendant’s visionary you may matters not how enterprises for re- how success prospects or unreasonable actually if you, the defendant be- ferred to in the evidence seem faith, glittering goоd whether lieved in them. Promises made in If, therefore, not, repre- believe that the you are not criminal. attractive attractive, Defendant, although glittering, persua- made sentations faith, part and not as a of a deliber- alluring, good were made in sive and defraud, to find the Defendant your duty it is plan or scheme then ate added) guilty.” (emphasis not See States v. United defense in this case. proper
Good faith 22, (1976). Pomponio, 10, 12 U.S. S.Ct. 50 L.Ed2d 97
II. that, essentially “willfully” if we define The defendant contends (sections here 11-51-123 and felony it involved “knowingly” renders 124, 1973) indistinguishable the misdemeanor outlined from this is a 18-5-301(l)(f), The defendant contends that C.R.S. 1973. section Calvaresi, People equal protection, rеlying on violation 188 Colo. 277, 316(1975). 534 P.2d involved, felony sections here 11-51-123 and part adopted by
the Uniform Securities Act. This Act was Colorado in seq. et 232, 125-10-1 18-5-301, Colo. Sess. Laws ch. at 731. Section C.R.S. 1973 was not enacted until 1971. Colo. Sess. Laws ch. 40-5-301 at 441-42. Securities The Uniform Act an extensive and coher securities. See U.L.A. 691. regulation of ent scheme for state (l)(f), Section 18-5-301 provides: C.R.S. 1973 (1) effecting if, “Fraud in sales. A commits a class misdemeanor business, course of he knowingly: “(f) misleading Makes a false or written statement for the purpose securities, promoting sale or omits information required by law to relating be disclosed in written documents to securities.” (emphasis It is inconceivable Assembly the General in сould have 18-5-301(l)(f), tended to substitute section C.R.S. 1973 for one must, most essential sections of therefore, the Uniform Securities We Act. *8 examine section 18-5-301 to if it see could be intended to serve func any performed tion not already by the Uniform Securities Act. In contrast to “promoting” language 18-5-301(l)(f), the it should be noted 11- that sale, offer, 51-123 “in purchase applies connection with the or of any se added) curity.” (emphasis “Offer” is defined “every attempt as dispose of, or solicitation buy, an security” a (emphasis added). Sec offer ll-51-102(8)(b), tion C.R.S. 1973. Thus we must conclude that Gen the eral Assembly’s regard intent with (l)(f) to 18-5-301 was to reach acts which “promoting” constitute the sale of securities but which do not reach the level of a buy.” “solicitation of an offer to
Given this
(l)(f)
construction of 18-5-301
dealing
with matters
not included
(b),
within the ambit of 11-51-123
there is no violation of
equal protection
arbitrary
unless the classification is
or unreasonable.
Hines,
People
Sexton,
v.
194 Colo.
572
People v.
(1977);
P.2d 467
People Czajkowski,
(1977);
194 Colo.
571 P.2d
v.
193 Colo.
Hulse,
(1977);
568 P.2d
People 192 Colo.
III. questions The defendant also whether certain arrangemеnts trust con- subject stituted “securities” our Securities Act. arrange- These trust 3, 4, 7, 8, ments were the basis for counts 9 and 10. explanation
Some arrangements of the facts concerning the trust necessary to understand the discussion of this issue. As an example, Bickford-Easterday trust involved in counts and 4 was an irrevocable settlors, Alice East- Jane Bickford and Cora Thelma under which the trust life, with Life Cen- the remainder to the income for erday, were receive defendant, and Wendell Nance ter, There were three trustees: Inc. agreement guaranteed the settlors Rhodig. separate E. A written Harvey their 9% annual return on investment. to be administered agreement provided that trust
The trust be no should court and that trustee any supervision from the active free co- allowing or for a co-trustee for or omissions of the acts responsible assets. Each trustee the trust custody to have or control over trustee The in bad faith. only for acts or omissions responsible be his was to or with any trustee could removed agreement further provided The Calvary Temple, Inc. by the Board of Directors without cause power sole to fill va- Calvary Inc. had the Temple, Board of Directors of right either among The had no whatsoever to the trustees. settlors cancies addition, agreement fill vacancies. In a clause remove trustees or to provided as follows: OF
“POWERS THE TRUSTEES. grant The settlors the Trustees power to administer the trust estate. In addition complete discretion law, such subsequently grants considered shall powers those now following powers: include without limitation [*] [*] [*] [*] Trustees, with individually fiduciaries, and as
“To deal which Trustees have an interest(em- any organization in phasis “in- receiving principal, after the trust trustees immediately
Almost three portion corporations, vested” a substantial of it in securities of the Center, Inc., E. Blair Calvary Temple, Life Charles Foundation. trust, $20,000 amounted to a Bickford-Easterday In the case this $10,000 receivable from Life Center and a note receivable from note *9 to the that E. Blair Foundation. There was no indication settlors Charles of insol- principal their was to be invested in unsecured notes receivable corporations. vent Center, 1,
On March an for Life Inc. wrote to the de- attorney fendant: purported in the very
“I much afraid that the view of SEC borrow- am will be money you as trustees a cover- ing simply of the from three of Do public persons the continued sale of securities to investors. up to investing are you acting you know that for whom are trustees do, fact If it is evidence of the money in Life Center notes? further securities, offering Life you engaged are in a continuous of the Center that through being you the three as trust- money and that the channeled eеs, subterfuge given to SEC that as a to the commitment possibly people Center would not make further sales of securities. If the any Life investing you providing money you as trustees do know are secruities, may liability it in the Life Center then there be a very serious venture, again them for the investment of the funds in and there t^is subterfuge with assertion in connection the issuance of Life Cen- short, In say raising ter securities. I must that I believe continued by by funds Life Center means of the ‘trustee notes’ compliance is not in with the commitments made to the Exchange Securities and Commis- sion.” as April writing following
As late 1974 the was defendant letters of the of these content the settlors trusts:
“In reply your letter of March 1974 we pleased you are to inform Calvary Temple Board has a new appointed Trustee to serve all very Trust holders. You will be informed in the near future of this addition strength management which we feel will be a to the proper and that your Corpus. Trust you your money segments
“As know invested in different of the ministries, Charles E. Blair and we anticipating an appropriate return organizations year from these the coming past year. in as in the encourage you “I your would leave it money where is.” repeat, To is whether the trusts constituted the sale of a “security.” “Security” in 11-51-102(12) is defined section as: note; stock; stock; bond; “‘Security’ any debenture; means treasury evi- indebtedness; dence of certificate of or participation any interest profit- sharing agreement; certificate; preorganization collateral-trust certificate share; subscription; contract; transferable voting-trust investment certi- ficate; deposit security; certificate of for a or certificate interest partici- oil, gas, pation mining in an or title or lease or in payments produc- out of lease; or, tion general, under such a title or any interest or instrument commonly a ‘security’ known as or any certificate of interest participa- in, for, of, tion temporary guarantee interim certificate or warrant or right foregoing.” tо subscribe to or purchase This definition from of the Uniform Securities 7Act. U.L.A. 746. §401 It in §2(1) turn is identical the Securities Act of 1933. U.S.C. See §77b(1). Note, Commissioners’ U.L.A. 749.
The evidence in this case was support jury finding sufficient to arrangements were, fact, that these trust “securities” within the mean ing of our Securities Act. primary arrangements defendant’s contention is that these do not
satisfy the
enterprise”
“common
S.E.C. W.J.
required
element
Howey,
(1946),
328 U.S.
66 S.Ct.
473 finding that support a evidence adequate more than jury The had corporations. three Blair for investment were conduits trusts these pur- than the was little more Bickford-Easterday trust The effect of of S.E.C. case corporations. the Blair of 9% notes from chase Co., 1975), (D. strikingly is similar. Ariz. Heritage Supp. 402 F. in that case and were marketed purposes with similar Similar trust under constituted securities the trusts raised as to whether was question found that true fiduci- The court in that case Act of 1933. Securities held that the furnished. Thus court were neither sold nor ary services stated: The court constituted “investment contracts.” trust which considered the consistency in the casеs have most essential “The emphasis is their on whether meaning term ‘investment contract’ of the enter- to affect the success power the investor has substantial and then turns over his relatively uninformed When the investor prise. others, upon their and essentially representations money depending it, managing generally the transaction is consid- and skill in honesty their contract.” to be an investment ered this case to be investment agree, thus find the trusts involved in
We Inc., Enterprises, v. Glenn W. Turner See also S.E.C. contracts. denied, 117, 38 1973) cert. 414 U.S. 94 S.Ct. (9th Cir. F.2d L.Ed.2d 53. case, is to say “fiduciary” provided services were
In the instant that clearly The trustees had no sense all of the term. ignore the connotations and, fact, agreements ab- wrote the trust so as to obligation fiduciary obligation They had lit- possible. fiduciary themselves as much solve welfare, that by as evidenced the fact concern for the settlors’ economic tle money corpo- invested much of this insolvent they immediately almost impropriety Their awareness of the in which had an interest. rations containing legal opinion requested by letter by of this evidenced Nance, the defendant on copy of which letter received trustee January now, practice of lend- past, trustees have in the and continue
“The needs arise. This money Calvary Temple Life as various ing Center in- financially bеcause two the trustees are constitutes a breach of trust advantages.” organizations by means of salaries other terested in these IV. the admission as whether The defendant also raises Center, the S.E.C. to Life of a letter of March 1972 from into evidence letter stated: sections Inc. is reversible error. Relevant our based on a review of pointed position, out that it is “It should also statements, Center, operat- Life Inc. September financial scheme; is, debt raising funds from the sale of securities ing a Ponzi making payments it interest public at a time when is insolvent and to the Ponzi scheme operation of a principal. those out of on securities *11 474 (Section of the federal provisions
violates the antifraud securities laws amended, 17(a) of Act of as and 77q(a), the Securities U.S.C. amended, 10(b) Exchange Securities Act of Section thereunder, 240.10b-5).” 78j(b), adopted U.S.C. and Rule 10b-5 CFR evidence, error admit The defendant contends that it was to this letter into guilt. objec- opinion as it contained an as to the defendant’s The defendant and, result, ted at the trial as a before the letter was introduced evi- into jury: the court instructed the dence objection jury
“The will be overruled and the is instructed that the De- alleged fendant on trial here for only violations of the Colorado alleged Securities Act on any and he trial here for violations of the any Federal law yоu any Securities Law other and are not to consider any reference to the Federal Securities or for purpose Law whatsoever as bearing the guilt on or innocence of this Defendant.” argument
The essence of the defendant’s appears be related that, prior letter, Charles, fact to the admission of this Warren former Center, Inc., house counsel for Life had testified that the disclosure provi- sions the federal and state securities law were identical. Thus defendant legal contends that opinion guilt the letter amounts to a toas his on these charges. state
We find no merit in this limiting contention. The instruction was ade- quate to indicate being charged that the defendant was not with fed- any eral any crimes and that reference to the federal securities law had no bearing guilt on the ultimate innocence limiting the defendant. This instruction was adequate dispel any notion this that letter an opin- was ion guilt on the issue the defendant’s on these charges. state
We also note very that this letter is different from the type situa- tion in which expert give witness is simply called his opinion as to sit- existing uations otherwise in the case. This letter is admissible because it has independent significance weight in terms of going to what the defend- ant’s given such, state awareness was at a time. As the letter prop- erly limiting admissible. The instruction constituted protection sufficient against improper determinations as to the dispositiveness of the S.E.C. statements.
V. The defendant also makes various regard contentions both with election between merger counts and of various counts. The first group of these contentions deals with of what effect section 18-l-408(l)(d) upon has the interplay between count 1 and counts 2-17. argument (violation is that count 1 of 11-5l-123(c)) merely general (violations version of counts 2-17 ll-51-123(b)) thus, by (1) virtue (d), of 18-1-408 the defendant can be only convicted 2-17, on either count 1 or counts when the counts arise from the same transactions. 18-l-408(l)(d) Section disagree the defendant’s contention.
We provides: of more the commission
“(1) When of a defеndant establishes conduct offense. offense, for each such may prosecuted the defendant than one one offense if: not be of more than He convicted * * * [*] designated only prohibit one is defined to
“(d) The offenses differ prohibit specific instance generally of conduct the other *12 kind conduct.” such situations where the offenses 408(l)(d) intended deal with is to
Section kinds general specific and of conduct. are in terms of themselves defined Rather, (b) (c) and are not so defined. subsection 11-51-123 Subsections to mate- or failure state (b) with statements of material facts deals untrue act, facts, (c) engaging with in an practice, while deals rial subsection is clear operates as a fraud or deceit. While it of which course business hand, be a of that, in the a violation of one also violation case at other, general specific of the are not defined as and versions the offenses activity. course of the same this, the sections remedy in case such as where two
The defendant’s a identical, as be- and is is move for election overlap do the evidence 18-1-408(3). No application for such provided tween counts as section Thus, remedy of sen- in he limited to the concurrent was filed this case. is 18-1-408(3), 1973. tencing. Section C.R.S. con have conceded since the appeal, People
On this the evidence, any werе the identical sentence victions on and 2-17 based on 18-1-408(3), The have parties Section C.R.S. 1973. should be concurrent. sentencing the effect the concurrent authority no on the of cited subject fined and sentence is deferred person only doctrine has when a actual allowing in a serve The interests involved probation. are those concurrently different from involved jail quite sentences fact, usage, “sentencing” in refers of fines. In common the word payment sentences, commonly “pun are jail to actual while fines considered only fact, judgment granting probation the ishment” rather than “sentence.” In We, therefore, suspended. “sentence” is deter states defendant’s although concurrently was to be “sentenced” this mine that the defendant for counts. separate has no effect on his fines the from further contends that certain of counts arose defendant security or one sale of a and one coordinated financial transaction
only 3 and 4 merged. Particularly, should be these claims concern counts thus 5, 7, 8, dealing with trust and counts 9 and Bickford-Easterday defendant dealing attempts with financial transactions. The the Cavett separate pay- these of counts as installment groups characterize each of is, That he claims that counts single security. on a a purchase ments $10,000 $35,000 and on оne 4 deal installments separate and $45,000 single He likewise contends that investment of a trust account. trust separate installments in one account investment other counts $30,000. agree We with the defendant that if these transactions separate were, fact, security on one payments purchase installment contract at and there were no made the time each separate representations pay ment, under only meaning then there could be one conviction both 11-51-123, 18-1-408(1)(e), section C.R.S. 1973 and rule is, That a situation where defendant victim enter into stock, binding price paid contract for the sale of one share of in four installments, meetings representations and no further are had or made and installments, four can only victim mails in his there be one count and however, Here, open-end agreements, four. two situations are trust into could deposit money which investors as much as little wished compel defendant could not them to pay make further ments or a full Each pay price. contract installment was essentially a new and separate making investment decision for the investor. of another payment analogous to separate purchase of an additional share Thus, if, stock. each payment must be considered separately to determine time, at that misrepresentation new or if made the defendant should *13 which, course, realize old misrepresentations that he has affirmative duty clarify, true, continue to affect the victim’s decisions. If either is a separate conviction payment. can based on each
In this case there is no claim that the defendant had any pur ported right contractual to each payment or that the investor could not freely payments. refuse make the Given continuing misrepresenta tions, it was not to base improper separate a conviction on each payment.
VI. The defendant has other raised contentions. We find them with out merit and only mention here. two He contends as to certain effect, counts he cannot be properly held accountable as an accessory. In contending the defendant is that in order to be for him held liable on some counts, requirements 18-1-603, these of section C.R.S. 1973 must be satisfied.
“Complicity. A is person legally accountable principal as for the behavior if, constituting another a criminal with the to promote offense intent offense, abets, aids, facilitate the commission he or advises the other planning committing 18-1-603, the offense.” Section This attempt graft is a creative accessory law onto securities law. How- ever, no transplant possible such is in this being case. defendant is not theory; rather, held liable under an accessory being he is held di- liable rectly as principal. provides a Section 11-51-123 that: indirectly: . . is unlawful . “It
* * [*] [*] to omit to state of material fact or statement “(b) make untrue To made, light the statements necessary in order to make fact material (em- made, misleading;” not they are under which the circumstances phasis accessory indirectly as an being is held liable here not
The defendant fact; rather, being is held lia- he making of a material an untrue statement material statement of a made an untrue indirectly who principal ble Commonwealth, 1968); (Ky. App. S.W.2d 318 Queen v. fact. See Amick, (7th 1971). Thus, Cir. acces- F.2d 351 United States v. cf. case. applicable is not this sory theory course, with the are, how much connection limits as to There “indirectly” Tnaking misrepresenta necessary to constitute is transaction case, evidence, however, of a Where, present is such as is this there tion. strong has over doing which the defendant business over general mode indirectly makes control, find that the defendant it not difficult to all This conveyed by representatives. his sales which are representations those defendant, here, both where there evidence especially true misrepresentations those sales to disclose and makes affirmative fails Commonwealth, Queen supra. men. Seе place have taken misconduct which
Any prosecutorial sufficiently egregious to warrant reversal.
Judgment affirmed. dissents. MR. JUSTICE CARRIGAN
MR. JUSTICE ERICKSON does not participate. dissenting: ERICKSON
MR. JUSTICE
case,
in my opinion,
I
Error occurred in this
respectfully dissent.
error in
to constitutional
applied
it was not harmless. The standard
*14
California,
87 S.Ct.