172 Ga. 770 | Ga. | 1931
Saunders was convicted of the offense of violating the Georgia securities law. The indictment was in two counts. The accused demurred on several grounds. The court sustained the demurrer as to the second count and overruled it as to the first count. The case proceeded to trial; and, on return of verdict of guilty and sentence, the accused filed a motion for new trial on the general grounds and eighty-three special grounds. The motion was overruled, and the exception in this court is to the overruling of the demurrers to the first count of the indictment and the judgment overruling the motion for a new trial.
2. Another ground of demurrer complains that the count of the indictment under which conviction was obtained “does not sufficiently set forth what securities were sold and offered for sale by defendant to L. D. Adams, said count of said indictment not alleging what said securities were, but alleging only that they
3. Ground 13 of the demurrer is “that the acts charged to have been done by the accused in said first count do not constitute the commission of any offense for which accused may be convicted and punished under any valid existing law of this State.” Held: This ground is too vague to raise any point for decision. A demurrer must in itself be perfect and point out wherein and why the law which it attacks is invalid.
4. Other grounds of demurrer contend that because the “issuers” of securities, included in the class legislated against are not included in the caption of the act of 1922, amending the Georgia securities law, section 36 thereof discriminates in favor of “issuers” in that they are not subjected to the penalties prescribed for dealers, brokers, solicitors, and agents, and that it therefore deprives defendant of the equal protection of law guaranteed by the Federal Constitution. Held: Conceding that the act of 1922 is unconstitutional as contended by plaintiff in error, the indictment would not be affected. The indictment is based upon the securities law previously enacted, and the case is not dependent upon the validity of the said act of 1922' in the respect as contended. Under the Smith case, supra, “issuers” are not subject to the penalties imposed under the “blue-sky law.” This does not render the act, as applied to plaintiff in error, void because in conflict with the due-process clause of the Federal constitution. The State may constitutionally make reasonable classifications, and a classification which exempts owners but penalizes dealers in the sale of securities would be reasonable and not arbitrary.
5. Other grounds of demurrer contend that by the act in question the accused is deprived of the equal protection of law guaranteed by the Federal and State constitutions, because section 9, par. 1, of the act excepts from its provisions securities “sold by the owner or his representative for the owner’s account, such gale
6. In several grounds of the demurrer the securities law is attacked because of classifications made with respect to buying and selling securities. Held: None of these grounds show merit. Each and all of the classifications are reasonable and not arbitrary, and therefore are a valid exercise of the State’s police power.
7. In a number of the grounds of the demurrer the securities law is attacked on the ground that it is void and of no effect, because in conflict with the State and Federal constitutions, which guarantee due process of law and equal protection of law. Held: None of these grounds show error. Statutes similar to this have repeatedly been upheld as against the same constitutional attacks, and it is needless to repeat the discussions of these questions, which are considered as settled. Hall v. Geiger-Jones Co., 242 U. S. 539 (37 Sup. Ct. 217, 61 L. ed. 480); Caldwell v. Sioux Falls Stock Yards Co., 242 U. S. 559 (37 Sup. Ct. 224, 61 L. ed. 493); Merrick v. Halsey & Co., 242 U. S. 568 (37 Sup. Ct. 227, 61 L. ed. 498). The California case, People v. Pace, 73 Cal. App. 548 (238 Pac. 1089), cited by plaintiff in error, is not controlling; and while entitled to the respect of this court, it deals with facts different from those here involved. There the question before the court had reference to sales by ah owner.
8. The provisions of the securities law, that as a condition precedent to the igsuan.ee of a lipense the commission shall be satisfied
9. The demurrer contains thirteen grounds. There are numerous repetitions of the same points stated in different ways. In several the law is attacked on the ground that the act places in different classes owners or issuers from that of dealers; that the portion having reference to the owners of securities or the issuers of securities is unconstitutional for stated reasons; that the same portion, that is, with reference to owners or issuers, is invalid because of vagueness, indefiniteness, and uncertainty. It is useless to deal with all of these in detail. It has been ruled above that none of these grounds contain any merit in so far as they concern the indictment in this ease.
10. In ground seven of the motion for new trial complaint is made that the court erred in admitting the following evidence, to wit: “document purporting to be stock certificate No. 731, which said document was testified about and identified by the witness, L. D. Adams, as having been purchased from the defendant, and which reads as follows: Incorporated under the laws of the State of Delaware. Number 731. Shares 150. The Intercity Eadio Telegraph Company. Preferred stock 500,000 shares. Par value $5 each. Common Stock 500,000 shares. Par value $5 each.” The remainder of the document contains provisions usually found in stock certificates, including the certificate that L. D. Adams is the owner of 150 shares of the common stock of the corporation named, and concluding: “In witness whereof, the seal of the corporation and the signature of its duly authorized officers affixed, this Mar. 15, 1927, day of---19-. Signed E. J. Simon, President. George H. Tamlyn', Treasurer. Countersigned Mar. 15, 1927. Eegistrar and Transfer Company. Transfer agent and registrar.---. The document bearing the following seal: Intercity Eadio Telegraph Company, Delaware, 1921.” This evidence was objected to on the ground that the execution of the alleged stock certificate had not been proved, and upon the ground that the indictment alleged that the defendant sold 150 shares of
11. Movant complains that there is no evidence to show that the stock certificate alleged to have been sold by the defendant to L. D. Adams was a Class “D” security, for the reason that the evidence clearly shows that the witness Adams, to whom the indictment charges the defendant “did sell and did offer to sell” certain specified stock, was himself a dealer within the meaning of the term “dealer” as defined by the Georgia Securities Law, and consequently any stock (no matter of what kind) or other securities sold to him was automatically Class “B” securities by virtue of the definition in section 9 and paragraph 4 of the securities law. Held: On inspection of the evidence this contention is not borne out. The evidence demanded a finding that Adams was not a dealer, as defined in the securities law (Ga. Laws 1920, p. 250, § 5).
(a) The brief of plaintiff in error states that this question is raised in the general grounds, and that it is also involved under special grounds 74, 75, 79, and 82. The record is very lengthy, and the grounds of the motion contain many repetitions and are not treated consecutively in the brief in the order in which they appear in the record. In the circumstances, we treat this ruling as a sufficient ruling on the special grounds just enumerated.
(i) Movant complains in ground 74, that, while the court instructed the jury as to the meaning of the word “dealer” as used in the act, the failure to charge the jury as to the meaning of the word “securities” and as to what the word “securities in the securities law includes” was prejudicial to the rights of defendant, because of certain stated testimony of L. D. Adams; that in view of' this testimony movant insists the jury was authorized to find that Adams was a dealer in securities within the meaning of the securities law, and that the failure to charge as stated, was error. Held: This ground, for the reason stated elsewhere, shows no error.
13. Movant also, in ground 79, complains that the court erred in refusing a timely written request to charge the jury as follows: “I charge you that sales to any dealer are not subject to the provisions of the Georgia securities law. Any person selling or disposing of, or offering to sell or dispose of, any stocks, bonds, debentures, or notes, is a dealer within the meaning of this law. If, under this definition, you believe from the evidence that at the time of the sale and offer to sell, charged in the indictment, L. D. Adams was a dealer, as I have just defined a dealer, then the defendant had the right to sell and to offer to sell to L. D. Adams the securities described in the indictment without violating the Georgia securities law. If since the passage of the Georgia securities law on August 17, 1930, as amended by the act of 1931, and before the time of the alleged sale and offer to sell to-L. D. Adams charged in the indictment, the said L. D. Adams had himself sold or disposed of any stocks, bonds, or notes, or had offered to sell or dispose of any stocks, bonds, or notes, I charge jrou that he thereby became a dealer and that thereafter no sale to him of any securities would be in violation of the Georgia securities law, and the defendant would not be guilty under such sale to such a party.” Movant contends that under the evidence Adams was a dealer within the meaning of the term as defined in the Georgia securities law. Held: The evidence relied upon does not show that Adams was a dealer, but does show the contrary. The written request was not pertinent to the issue and was properly refused.
13. Movant complains in ground 83 that the court erred in not submitting to the jury the following defense which arose under the issues in said case and was supported by the evidence, that is, certain principles of law which are applicable where sales of stock are made to a dealer, the defendant contending “that the said Adams had become a dealer by selling the United Iron stock about which the said Adams testified; and that if the said Adams
14. Movant complains in ground 76 that the court charged the jury that “defendant could not be convicted under either count of this indictment of selling securities referred to in this .indictment, if the jury should find that these securities fell within either Class ‘A’, ‘B5 or 'O’ of the Georgia securities law,” and that the court erred in not charging the jury in this connection that the burden was on the State to prove beyond a reasonable doubt that said securities did not fall within Class “C” of said Georgia securities law, and that the failure to so charge was prejudicial to this defendant. Held: No error. Where the court correctly charges on one subject, it is not error that there is a failure to charge on some other subject in that connection.
15. In grounds 80 and 81 movant complains that the court erred in refusing to charge, as requested in writing, what securities would fall within Class “C” as defined in the act; that before the jury could determine that any stock or security was in Class “D,” they would first have to determine from the evidence that it was not in Class “C.” Held: No error. The principles' contained in these requests were substantially covered in the general charge.
16. Grounds 4 to 72, inclusive, as stated in the brief of movant, complain of the admission of evidence in regard to advertisements and other sales of securities not named in the indictment.. The brief of movant states that these grounds “may be considered together, in the interest of time.” For the same reason the court will likewise deal with these grounds. -Held: The evidence as to all of these transactions was admissible for the purpose of showing a scheme, plan, or system used by the defendant in the transaction for which the indictment was- returned. Cawthon v. State, 119 Ga. 395 (46 S. E. 897); Frank v. State, 141 Ga. 244 (2 a) (80 S. E. 1016); Williams v. State, 152 Ga. 498, 521, 522 (110 S. E. 286); Merritt v. State, 168 Ga.. 753, 754 (149 S. E. 46).
17. In grounds 84, 85,. and 86 movant complains that while he was making his statement to the jury he was interrupted by the court as follows: (1) “In the course of his statement the
18. Ground 73 raises questions which were dealt with in the rulings on the demurrer, and will not be repeated.
19. Other grounds of the motion for new trial not referred to in the brief of plaintiff in error are treated as abandoned.
20. The verdict is supported by evidence.
Judgment affirmed.