53 Ga. App. 371 | Ga. Ct. App. | 1936
The defendant T. G. Wright was jointly indicted with others, the indictment charging them with a- felony, to wit, the violation of the Georgia-securities-commission act. The defendant demurred to thé indictment, the judge overruled all grounds of the demurrer, and the defendant excepted. The only question for decision by this court is whether or not the judge erred in overruling the demurrer.
Ground 1 of the demurrer objects to the form of the indictment in that it does not specifically number each count thereof; the ground avers that the counts in the indictment should be numbered consecutively in like manner as paragraphs" in petitions of civil suits. Code of 1933, § 81-103. However, when we look to the Code of 1933, § 27-701, we find that this section not only states when an indictment shall be sufficiently technical and correct, but also gives the form for every indictment whether in one count or more than one count, and the form for more than one count, as given, does not specifically number the counts. As the instant indictment in this regard follows the form prescribed by this Code section, we do not think ground 1 of the demurrer is good. See also in this connection Bishop’s Directions & Forms (2nd ed.), 31, § 64; 4 Wharton’s Criminal Procedure, 48, §§ 79-87. However, we think it preferable to follow the practice of con
The first count of the indictment, omitting the formal parts, alleges: “did unlawfully sell and offer for sale certain securities to wit: 25 shares of the capital stock of Franklin Savings and Loan Co., of Macon, Georgia, stock certificate number 896, said securities being sold and offered for sale to Mr. and Mrs. W. D. Giles for the sum of $500, without said accused having first secured a license so to do from the secretary of State in accordance with the provisions of the Georgia-securities-commission law, said accused then and there acting as dealer [italics ours] in said securities, said securities so sold and offered for sale coming within class D as defined in the Georgia securities law, contrary to the laws of said State,” etc.
The second count charged the sale of the same stock while acting as issuer [italics ours] without having first secured a license. The third count charged the sale of the same stock while acting as Irolcer [italics ours] without having first secured a license. The fourth count charges the sale of the same stock while acting as agent [italics ours] without a license having first issued.
Grounds 2, 3, 4, 5, 6, and 7 of the demurrer all go to the different counts in the indictment. These grounds of the demurrer in effect attack each count of the indictment, and say that the securities alleged to have been sold are alleged to come within class D, but no facts are set forth to show that they do come in class D; that if the charge is selling class D stock without a license, the indictment must clearly negative that it is class A, B, or C stock; that if it could be A, B, or C class security, then no crime is charged of selling class D security; that section 97-102 of the Code, in defining “dealer” expressly excepts a salesman from the classification of a dealer, and that the allegations in the indictment are consistent with the assumption that the defendant was merely acting as a salesman, and that the indictment should negative the fact that the accused was merely a salesman, and that the bald opinionative statement that he was a “dealer” is a mere conclusion of the pleader; that the allegation that the defendant was acting as “dealer” is a mere conclusion; that no facts are given to show who owned the stock,
The Code, § 97-301, enumerates the classes of securities covered by the Georgia-socurities-commission act and divides them into four classes, to wit: class A, class B, class C and class D. Thereafter, class A is defined, then class B, and then class C, and finally class.D securities are defined as “all securities other than those falling within classes A, B and C respectively.” § 97-305.
We think the allegations in the indictment that 25 shares of the capital stock of the Franklin Savings & Loan Company of Macon, Georgia, stock certificate No. 896, were securities coming within class D, as defined in the Georgia securities law, are allegations of fact, and not mere bald opinionative statements. The transaction was individualized to such an extent that the accused was, with reasonable certainty, apprised by the indictment of the nature of the-accusation against him to the end that he would be able to prepare his defense and plead the judgment as a- bar to any subsequent prosecution for the same offense. The ofEense charged is purely statutory, and the indictment is in the language of the Code, and goes further and accurately describes the stock certificate alleged to have been sold.
“In any suit, complaint, information, indictment, or other writ or proceeding, civil or criminal, laid or brought under the Georgia securities law, it shall not be necessary to negative any of the exemptions provided by this law; and the burden of proof of any such exemption claimed by the defendant shall be upon the defendant.” Code, § 97-105 (Acts 1922, p. 171). Under this section we do not think it is necessary to allege in the indictment that the dealer was a “person other than a salesman.” The allegation that the securities come within class D, as defined in the Georgia security law, necessarily excludes securities in classes A, B, and C, and is a sufficient negative that the stock was class A, B, or C. State v. Montgomery, 92 Me. 433, 435 (43 Atl. 13).
The caption of the act of 1933, p. 263, is as follows: “An act to amend an act approved August 17, 1920, entitled ‘An act to create and establish the Securities Commission, to provide the membership of said commission, and define the duties and powers thereof, to define and classify securities and regulate the sale thereof, to provide for the license of dealers in securities [italics ours] and their agents, to fix fees therefor, to provide a penalty for the violation of this act; and for other purposes-’ as amended by an act approved August 31, 1922, and also by the act to simplify the operation of the Executive branch of the State Government by abolishing certain offices, etc., approved August 28, 1931, wherein the secretary of State was made sole securities commissioner of the State; so as to substitute the words ‘Secretary of State’ for the words ‘Securities Commission’ or ‘commission’
The case of Smith v. State, 161 Ga. 103 (129 S. E. 766), is differentiated from the present case, in that the body of the amendatory- act of 1922 was under discussion in the former, and contained matter not only not referred to in the caption, but contrary to and in direct opposition to the matter referred to in its title, whereas in the present case, the caption of the amendatory act of 1933 contains no such restrictions in its caption as did the act of 1922, but it would seem was an amendatory act passed for the purpose of remedying the contradiction which appeared in the act of 1922.
Judgment affirmed.