Curtis v. State

• Decision Date: 05 December 1960
• Docket Number: No. 2,No. 38382,38382,2
• Parties: , Blue Sky L. Rep. P 70,510 L. A. CURTIS, Jr., et al. v. STATE
• Court: Georgia Court of Appeals

Page 264

118 S.E.2d 264

102 Ga.App. 790, Blue Sky L. Rep. P 70,510

L. A. CURTIS, Jr., et al. v. STATE.

No. 38382.

Court of Appeals of Georgia, Division No. 2.

Dec. 5, 1960.

Syllabus by the Court.

1. An oral motion to quash an indictment which is made after the issue has been joined raises only the question of whether the indictment is so defective that a motion in arrest of judgment would lie. The indictments are not so defective here as to be subject to the oral motion to dismiss.

2. The evidence did not authorize the conviction of the defendant, W. A. Byrd.

3. The charge on the law of conspiracy was abstractly correct and was adjusted to the evidence in the case.

4. There was no error in the charge of the court on the question of intent.

5-7. No reversible error is shown in refusing to give in charge the requests dealt with in these divisions of the opinion.

8. The evidence was sufficient to support the conviction of the remaining defendants Curtis, Meeks and Lee for the offense of violating Code Ann. § 97-112 relating to unlawful practices under the Georgia Securities Law.

9. In misdemeanor cases, unless otherwise provided, the punishment is as provided under Code § 27-2506. However, where a statute makes penal certain acts which do not otherwise constitute a crime, and prescribes the manner of punishment for such acts, the special statute and not the general law is controlling as to the limits of such punishment. Where, as here, the defendants are found guilty in 36 counts of an indictment charging them with various infractions of the Georgia Securities Law, each of the convictions thereunder constitutes a 'first offense' since no prior conviction is alleged in the indictments, and Code Ann. § 97-9901, which prescribes the punishment to be inflicted for such infractions, does not include imprisonment as a part of the punishment for a first offense. It was accordingly error to so sentence the defendants as to require them to serve periods of imprisonment in addition to the fines imposed by the sentences.

Lee A. Curtis, W. A. Byrd, Wilson Meeks, and Robert E. Lee were tried and convicted on 36 counts of an indictment, charging them with the violation of the Georgia Securities Act, and particularly, the provision thereof contained in Code Ann. § 97-112. Upon the call of the case for trial the parties announced ready, issue was joined and a jury was stricken. Thereafter, the defendants, through their counsel, made an oral motion to quash the indictment, which was overruled.

The trial court imposed a fine of $75 on each defendant on each count of the indictment and sentenced each defendant to imprisonment in a public works camp for a period of 12 months on count 1, and six months imprisonment in a public works camp on each of the remaining 35 counts, the sentences to be computed consecutively. Each sentence contains a provision that upon payment of the specified fine and, upon restitution being made to a person named therein, the prison term may be served outside the confines of the prison upon conditions stated therein. The defendants filed a motion for a new trial on the usual general grounds, which was later amended by adding several special grounds. The trial court overruled the motion for a new trial, as amended. The defendants, in their appeal, contend that the trial court erred in overruling the oral motion to quash the indictment and in overruling their amended motion for a new trial, as amended. In addition, an assignment of error is made on the sentences pronounced by the trial court.

A. A. Farrar, Summerville, Marvin O'Neal, Jr., Charles H. Edwards, H. A. Stephens, Atlanta, for plaintiffs in error.

Jeff C. Wayne, Sol. Gen., Sidney O. Smith, Jr., Asst. Sol. Gen., Gainesville, for defendant in error.

TOWNSEND, Presiding Judge.

1. After the State and the defendants announced ready, issue had been joined and a jury stricken, the defendants made an oral motion to quash the indictment. 'Where an indictment is not on its face so defective that a motion in arrest of judgment would lie, an objection to it must be in writing [citation]. An oral objection, being ineffective for its purpose, is the equivalent of none at all, and, if no other action be taken, a waiver results.' Sheppard v. State, 95 Ga.App. 507(3), 98 S.E.2d 69, 172. To the same effect see Gilmore v. State, 118 Ga. 299, 45 S.E. 226. Consequently, the question presented by the motion is whether any count of the indictment is so defective that a motion in arrest of judgment would lie.

The former appearance of this case in this court (Curtis v. State, 99 Ga.App. 732, 109 S.E.2d 868, adjudicated that the intent to defraud is the gist of an offense under that portion of Code Ann. § 97-112 which prohibits the use of a device, scheme or artifice to defraud. As the court stated at page 736, 109 S.E.2d at page 871: 'Code Ann. § 97-112 on the other hand makes it unlawful, and by definition a fraudulent practice, to employ any scheme or device to defraud. The one is retrospective in nature, the other prospective. A scheme to defraud is such a scheme as is initiated by the perpetrator with an intent to defraud another and cause him to suffer a pecuniary loss, but the intent, not the loss, is the subject matter of the crime.' As to the counts of the indictment drawn under that portion of the statute, each sufficiently charges a complete crime.

Also Code Ann. § 97-112, as amended (Ga.L.1957, p. 134), provides that it shall be a misdemeanor 'for any person to make to any prospective purchaser, customer or client any representation that the filing of a registration statement or the registration of any security under section 97-104, or the existence of an exemption for any security or transaction, means that the Commissioner has passed in any way upon merits of such security or has recommended or given approval to such security or transaction.' It is clear from the statute that two types of crimes are prohibited: (1) the making of an intentional representation that by the filing of a registration statement, the Commissioner of Securities has passed upon the merits of the security, and (2) the use of a device, scheme or artifice to defraud, or the commission of any act, practice or course of business which would operate as a fraud on the purchaser. In the former instance the making of the representation completes the criminal act, whereas in the latter instance an intent to defraud must be shown. Some of the counts of the indictment are drawn under that provision of the statute prohibiting representations that the Commissioner of Securities has passed upon the merits of such stock, while the other counts are drawn under that provision of the statute which requires an intent to defraud. Therefore, all counts of the indictment are sufficient to show a violation of one, or the other, of these provisions of Code Ann. § 97-112. There is no error shown in the court's overruling the motion to quash the indictment.

2. As to the defendant W. A. Byrd, there is insufficient evidence in the record to authorize a conviction. The only reference to this defendant in the record is where he instructed the corporation's salesmen to conform their activities to those allowed by the 'Securities Act'. There is no evidence that Byrd conspired to make or made any fraudulent statements to any prospective customers. Any further reference to the defendants excludes the defendant W. A. Byrd.

3. The law in Georgia is firmly established that 'in misdemeanors all are principals.' Parmer v. State, 91 Ga. 152, 16 S.E. 937, 938. One may be convicted as a principal, therefore, even though in another county (Rawlins v. State, 70 Ga.App. 308, 28 S.E.2d 350), or even in another state when a conspiracy is shown to exist and during the pendency thereof an overt act is perpetrated by one of the co-conspirators pursuant to the conspiracy. The evidence discloses that the salesmen were instructed by the defendants to make certain representations which were ultimately shown to be false for the purpose of securing purchasers of stock in the corporation. 'Where one phase of the evidence would authorize the jury to find that two or more principals conspired to commit a crime and that, pursuant to this conspiracy, overt acts constituting the crime were committed by at least one of such principals, the other aiding and abetting therein, it is proper for the trial court to charge the jury on the law of conspiracy.' Garner v. State, 83 Ga.App. 178(2), 63 S.E.2d 225, 226. 'It is well settled that a criminal conspiracy may be shown by either direct or circumstantial evidence evidence, and that if there is any evidence showing or tending to show such a conspiracy, a charge upon that subject is not error.' Banks v. State, 74 Ga.App 449, 453, 40 S.E.2d 103, 106. See Walls v. State, 83 Ga.App. 318, 63 S.E.2d 437. Applying the above principles of law the charge was correct and applicable to the issues of the case because the evidence authorized a finding that an unlawful scheme was entered into by and between the defendants and was perpetrated to defraud the investors. The charge was not erroneous for any of the reasons stated in the amended motion for a new trial.

4. Special grounds 4 and 5 of the motion assign as error the charge of the trial court on the subject of intent. The defendants complain of the trial judge's charge that 'if the intent to defraud was conceived after the sale of the stock, then you [the jury] would not be authorized to convict, the defendants or either of them, who did not have the intent until after the sale of the stock,' is in conflict with a later charge relative to intent, to-wit: 'In determining whether or not the defendants or either of the defendants had any intention to commit any wrong as charged in the bill of indictment, at the time it was alleged to have been committed, then, you may look to all the facts and circumstances of the case. I charge...