Bowler v. State
| Decision Date | 10 April 1978 |
| Docket Number | No. 1,No. 55292,55292,1 |
| Citation | 244 S.E.2d 142,145 Ga.App. 633 |
| Parties | , Blue Sky L. Rep. P 71,422 F. Wallace BOWLER v. The STATE |
| Court | Georgia Court of Appeals |
Garland, Nuckolls, Kadish, Cook & Weisensee, John A. Nuckolls, Frank J. Shannon, III, Atlanta, for appellant.
M. Randall Peek, Dist. Atty., Decatur, Arthur K. Bolton, Atty. Gen., Andrew J. Ekonomou, Asst. Atty. Gen., Atlanta, for appellee.
Appellant and two others purchased a Georgia corporation, Fidelity Trust Company (hereinafter Fidelity). Fidelity then entered the investment securities field, selling investment certificates. It was in connection with the operation of Fidelity that appellant was tried and convicted on a four-count indictment charging him with violations of the Georgia Securities Act of 1957. Enumerated as error are the denial of appellant's motion for a directed verdict, denial of appellant's motion to dismiss for improper venue, and the trial court's action in sentencing appellant without a recommendation by the jury.
1. The basis for the motion for a directed verdict was appellant's contention that the state had failed to elicit sufficient evidence to authorize a guilty verdict on any count. The trial judge disagreed and so do we.
A. The first count of the indictment alleged a violation of § 3A of the Act (former Code Ann. § 97-104.1) in that appellant caused to be used an offering circular which was false and misleading in the light of the circumstances then existing. In particular, the state alleged that the prospectus represented that a particular individual, from whom Bowler and his associates purchased Fidelity, managed Fidelity when, in fact, appellant did; that the prospectus represented that the funds derived from the sale of investment certificates would be used to serve the mortgage needs of Atlanta when, in fact, the funds were diverted to banks in Virginia and substantial amounts were then loaned to a Virginia corporation controlled by appellant; that Fidelity was a prosperous company when, in fact, it had lost $24,000 in the last year; and that the prospectus guaranteed a specific profit on investment certificates when, in fact, appellant was aware that the Georgia Securities Act of 1973, which was to go into effect some four months after the sale of certificates began, would materially impair Fidelity's ability to meet its obligations to certificate holders.
The evidence showed that, although the person from whom appellant and his associates bought Fidelity was listed as president of the corporation, she had no decision making power and was a figurehead for appellant, who ran the operation; that substantial amounts of money were sent to Virginia and loaned as alleged and that such a diversion was appellant's intent from the outset; that appellant knew before the offering circular was used that Fidelity had lost $24,000 in the preceding year, a substantial amount in light of its limited assets; and that the ability of Fidelity to meet its obligations was largely dependent on its ability to continue certificate sales after the effective date of the new securities law, which law, appellant was aware, would not permit the continuation of the operation as it was then structured. That evidence was sufficient to send the first count to the jury.
B. The state alleged in the second count of the indictment that appellant employed a device, scheme or artifice to defraud by guaranteeing a specified return on the investment certificates when he was diverting funds to bank accounts under his control in Virginia and lending in excess of $150,000 to a corporation there under his control, knowing that the Virginia corporation was a losing proposition which would be unable to repay the loan, thereby impairing the ability of Fidelity to make the promised redemption. The evidence showed that the loan was made as alleged and that it was due at a time after the maturity date of a large number of the certificates. That was sufficient to show that Fidelity's ability to repay was impaired by appellant's actions and that he knew it would be.
C. The third count alleged the employment of a device, scheme or artifice to defraud by guaranteeing a specified profit on investment certificates when Bowler had no reasonable expectation of realizing that profit because he caused the proceeds from the sale of certificates to be used to purchase common stock of a Virginia corporation which purchase he knew would decrease the value of the investment certificates. The evidence authorized a finding that Bowler was aware that the Virginia corporation, which was controlled by another Virginia corporation which was under Bowler's control, was in severe financial difficulty and would not be able to provide a return on the investment in time for Fidelity to meet its obligations to certificate holders. The fact that Bowler and his associates later bought the stock from Fidelity does not change the fact that, during the time frame of the indictment, he caused the investment to be made, knowing it would impair Fidelity's ability to meet its obligations.
D. The final count of the indictment alleged fraud in that appellant caused the funds of Fidelity to be used in partial satisfaction of the debt he and his associates incurred in the purchase of Fidelity. One witness testified that the payments were made as alleged and that, although appellant and the others were billed for those payments, they did not repay them, so far as she knew. This testimony alone was sufficient to submit the issue to the jury.
Since the evidence on each count did not demand a verdict of acquittal, the motion for a directed verdict was properly denied. Code Ann. § 27-1802.
2. Appellant argues that, because he never went there or sent an agent there, venue does not lie in DeKalb County. However, the evidence is clear that part of the alleged scheme to defraud was to mail the offering circular and an application to prospective customers and, after receiving payment, to mail the certificate to the purchaser. There was evidence that the purchasers named in the...
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Thayer v. State
...that venue lay in the county where an obscene telephone call was received. They were also relied upon in Bowler v. State, 145 Ga.App. 633, 635(2), 244 S.E.2d 142 (1978), a securities violation case involving the Act of 1957. Bowler contended that there was no venue in DeKalb County because ......
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State v. Barber
...588, 62 S.E. 117 (1908) (disapproved on other grounds, R.M. Rose & Co. v. State, 133 Ga. 353, 65 S.E. 770 (1909)), Bowler v. State, 145 Ga.App. 633, 244 S.E.2d 142 (1978), and Thayer v. State, 189 Ga.App. 321, 376 S.E.2d 199 (1988), cited by the State. Those cases, in which this court held ......
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Hahn v. State, 65936
...control prior to the expiration of [their sentences.]" Lindsey, 301 U.S. at 401-402, 57 S.Ct. at 799, supra. Compare Bowler v. State, 145 Ga.App. 633, 244 S.E.2d 142 (1978) (holding that a statutory change from jury to judge sentencing without an increase in the severity of punishment presc......