Shirley C. TREIDER, Plaintiff-Appellee, v. DOHERTY AND COMPANY, a New Mexico corporation, and Dale Keyes, Defendants-Appellants.
No. 1351.
Court of Appeals of New Mexico.
Sept. 18, 1974.
Rehearing Order, Sept. 27, 1974.
86 N.M. 735 | 527 P.2d 498
Certiorari Denied Oct. 11, 1974.
Defendant also asserts that the district court had no authority to proceed in the absence of the magistrate court transcript. See Lea County State Bank v. McCaskey Register Co., supra. We do not consider whether defendant‘s appeal could have been dismissed because no transcript of the magistrate court proceedings had been filed, nor do we consider who had the duty to see that the transcript was filed in the district court. See Stripling v. PMC Realtors, Inc., 83 N.M. 170, 489 P.2d 883 (1971). At trial, defendant did not object to proceeding without the transcript. Any error in proceeding without the transcript was waived. Kleiner et al. v. O‘Kelley, 22 N.M. 624, 167 P. 1 (1917).
Sufficiency of the Evidence
The defendant challenges the sufficiency of the evidence to support the conviction. The attendant at the gas station (the scene of the crime) testified that he left the cash register open while helping defendant‘s wife get some candy. He heard the lever which held the paper money in place “bang.” He turned and saw defendant sticking his hand into his pocket. The attendant testified that two tens were missing from the register.
A police officer who had the service station under observation testified that he was hiding about 100 to 150 feet from the station. He was using a telescope to view the interior of the station. The officer testified that he saw the attendant turn to another cabinet and saw defendant reach over and pull some money out of the register. The officer stated that he could see that it was money and that defendant stuck it in his pocket.
This is substantial evidence (both direct and circumstantial) to support the conviction.
Defendant has made several factual assertions tending to challenge the credibility of the State‘s witnesses. Credibility is for the fact finder. State v. Lard, 86 N.M. 71, 519 P.2d 307 (Ct.App.1974).
The judgment and sentence for larceny under $100.00 is affirmed.
It is so ordered.
HENDLEY and HERNANDEZ, JJ., concur.
John Jasper and Stephen Durkovich, Albuquerque, for plaintiff-appellee.
OPINION
HENDLEY, Judge.
Plaintiff Treider undertook to invest part of an inheritance in speculative, over-the-counter stocks. She selected Doherty and Company as a broker, who acted through the defendant Keyes. Keyes failed to mention to Ms. Treider certain facts about some of the stocks he sold to her. She sued under
” . . . It is a fraudulent practice and unlawful for any person, in connection with an offer, sale or purchase of any security, directly or indirectly, to:
” . . . . . . .
“make any false statement of material fact or to omit to state a material fact
necessary in order to make the statements made true in the light of circumstances under which they are made; ...”
The jury found for Ms. Treider and awarded her the purchase price and attorney‘s fees pursuant to
Defendants’ appeal raises five points for reversal: (1) standard of proof; (2) agency; (3) remedies; (4) exclusion of an exhibit; and, (5) failure to direct the verdict. We affirm.
THE STANDARD OF PROOF FOR VIOLATIONS OF § 48-18-29(A), SUPRA , SHOULD BE BY CLEAR AND CONVINCING EVIDENCE.
The legislature called the unlawful act under
Fraud must be proven by clear and convincing evidence because it is an easily made charge that stains the person accused with a mark of dishonesty. Frear v. Roberts, 51 N.M. 137, 179 P.2d 998 (1947); Davis v. Commissioner of Internal Revenue, 184 F.2d 86, 22 A.L.R.2d 967 (10th Cir. 1950). In common law fraud the plaintiff must prove that the defendant intentionally deceived him. See Prudential Insurance Company of America v. Anaya, 78 N.M. 101, 428 P.2d 640 (1967) quoting from Sauter v. St. Michael‘s College, 70 N.M. 380, 374 P.2d 134 (1962). The present statute, however, does not necessarily place this onus of dishonesty on the defendant. The intent with which the defendant makes the statement is irrelevant under the terms of the statute. The statute requires only that the statement made be false and material, or that the omission be of a material fact necessary to make true the statement made. Since ” * * * the term ‘fraud,’ as used herein, is not the equivalent of ‘actual fraud or conscious deceit’ [the] * * * [q]uantum of proof requirements as to ‘actual fraud’ * * * are not controlling in this situation. * * *” Yucca Mining & Petrol. Co. v. Howard C. Phillips Oil Co., 69 N.M. 281, 365 P.2d 925 (1961). The trial court correctly instructed the jury that the standard of proof was by a preponderance of the evidence.
SECTION 48-18-31, SUPRA , APPLIES TO THE BROKERS IN THE PRESENT CASE ONLY IF THEY WERE THE AGENTS OF THE SELLER.
Section
Whether the evidence established that defendants were “agents of the seller” is irrelevant. The evidence does establish that defendant, Doherty and Company, through its agent, Keyes, acted as plaintiff‘s broker. The statute makes liable ” * * * [t]he person making such sale. * * *” In common parlance a broker would describe himself as someone who makes sales. Defendants come within the liability provisions of
THE REMEDY UNDER § 48-18-31, SUPRA , IS NOT AVAILABLE FOR VIOLATIONS OF § 48-18-29(A), SUPRA .
Section
” Every sale or contract for sale made in violation of any of the provisions of this act, or of any order is-
sued by the commissioner under any provision of this act, shall be voidable at the election of the purchaser. . . .” (emphasis added).
Defendants essentially contend: The words “this act” refer only to the original, unamended sections of the act; amendment or repeal and reenactment of those original sections takes the section out of the purview of the words “this act.” Since
The introductory section to Article 18 of Chapter 48 of the New Mexico Statutes states: “This act shall be known as ‘The Securities Act of New Mexico.‘” (emphasis added).
The reference to investment securities in the title of the 1965 act and the reference to the Securities Act in § 48-18-17, supra, establishes that the 1965 act is a part of the New Mexico Securities Act. Since
DEFENDANTS’ EXHIBIT C WAS ERRONEOUSLY EXCLUDED.
Defendants sought to introduce, as their exhibit C, a table purporting to show the stock transactions by plaintiff through Doherty and Company between 5/2/69 and 11/29/72, and various facts relating to those transactions. The trial court excluded the exhibit.
Defendants’ exhibit U was admitted without objection. It was an exact copy of exhibit C except for three columns showing the price at which plaintiff sold her stock, the date the highest bid was received after plaintiff purchased the stock and the bid price.
The sale price was relevant, defendant argues, because the fact that plaintiff made money on some transactions with Doherty and Company diminishes her claim. We disagree. Plaintiff is entitled to void any sale entered into in violation of
The high bid prices and dates were also irrelevant.
The trial court properly excluded exhibit C.
FAILING TO DIRECT A VERDICT USING THE CLEAR AND CONVINCING PROOF STANDARD WAS ERROR.
The essential thrust of defendants’ final argument is the same as their first. The restatement is no more persuasive.
The judgment is affirmed.
It is so ordered.
WOOD, C. J., and HERNANDEZ, J., concur.
ON MOTION FOR REHEARING
Subsequent to the filing of the opinion in this cause plaintiff filed a motion for rehearing requesting attorney fees on appeal pursuant to
It is so ordered.