Manson v. State, 1 Div. 667

• Decision Date: 19 April 1977
• Docket Number: 1 Div. 667
• Citation: 349 So.2d 67
• Parties: Leonard MANSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 67

349 So.2d 67

Leonard MANSON v. STATE.

1 Div. 667.

Court of Criminal Appeals of Alabama.

April 19, 1977.

Rehearing Denied June 7, 1977.

Ralph Kennamer, Mobile, for appellant.

William J. Baxley, Atty. Gen., and Frederick S. Middleton, III, Asst. Atty. Gen., for the State.

PER CURIAM.

Appellant was convicted of a willful violation of Section 1 of the Securities Act of Alabama, Acts 1959 p. 1318, Act No. 542, § 1 (Code of Alabama, Recompiled 1958, 1973 Cum.Supp., Tit. 53, § 28). The jury assessed a fine of five thousand dollars, and the court imposed a sentence of imprisonment in the penitentiary for two and one-half years, both within the limits of the amended Act. Acts 1971 p. 3598, § 3 (Code of Alabama, Recompiled 1958, Cum.Supp. Tit. 53, § 44).

Appellant vigorously presents three contentions for a reversal: (1) the trial court was in error in overruling appellant's demurrer to the indictment; (2) certain exhibits and testimony were erroneously admitted in evidence; and (3) defendant was entitled to a directed verdict and acquittal "on the ground, among others, that the State had failed to prove venue in Mobile County, Alabama."

For a better understanding of the issues on appeal, and our consideration thereof, particularly the contention as to the sufficiency of the indictment as challenged by the demurrer, we set forth the indictment, consisting of three counts, in full. Each count commences as follows:

"The Grand Jury of Mobile County charge that, before the finding of this indictment, Leonard Manson, alias Lonnie Manson, alias Lennie Manson, whose true name is unknown otherwise than stated, hereinafter referred to as Defendant, in connection with the offer, sale, or purchase of a security, or securities, to-wit: certain bonds issued by, to-wit: The Industrial Development Board of the Town of Mt. Vernon, Alabama, said town being a municipal corporation organized under the laws of the State of Alabama, and said bonds being designated on the face thereof, to-wit: Industrial Development Revenue Bond (Johnnie Walker Medical Electronics, Inc., Project), Series A, 1974, . . ."

Thereafter, as hereinafter shown as to each count, the indictment alleges as follows:

"COUNT I

". . . did, willfully and unlawfully, either directly or indirectly, employ a device, scheme, or artifice to defraud said Industrial Development Board, or the investing public, or bond purchasers, to-wit: Walter Poole, or other persons, as follows, to-wit: said Defendant willfully and unlawfully caused or allowed said Industrial Development Board to authorize the issuance or sale of said bonds in the amount of four million dollars ($4,000,000.00) in order to finance the construction and equipping of a plant or building in or near Mt. Vernon, Alabama for, to-wit: Johnnie Walker Medical Electronics, Inc., also known as the Johnnie Walker Project, and said Defendant knew that said bonds in the amount of four million dollars ($4,000,000.00) was substantially more than was necessary to construct and equip said Johnnie Walker Project; said Defendant willfully and unlawfully falsely stated or omitted to state material facts concerning the corporate structure, ownership, or financial condition of Johnnie Walker Medical Electronics, Inc., an Alabama corporation, or Johnnie Walker Medical Electronics, Inc., a Missouri corporation; as a part of said device, scheme, or artifice to defraud, said Defendant willfully and unlawfully established himself as, or accepted the position of, agent for the said Johnnie Walker Medical Electronics, Inc., an Alabama corporation, and said Defendant controlled by himself, or jointly with another, the disbursement of said bond money or proceeds; and in furtherance of said device, scheme, or artifice to defraud, said Defendant used a portion of said bond proceeds for himself, or for another, or for purposes other than for the said Johnnie Walker Project, to-wit: as operating capital for to-wit: World Capital Investment Corporation; all in connection with the offer, sale, or purchase of said bonds, and against the peace and dignity of the State of Alabama.

"COUNT II

". . . did, willfully and unlawfully, either directly or indirectly, to said Industrial Development Board or the investing public, or bond purchasers, to-wit: Walter Poole or other persons, make an untrue statement of a material fact, or omitted to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, as follows, to-wit: said Defendant willfully and unlawfully stated that, to-wit: said bonds in the amount of four million dollars ($4,000,000.00) was necessary to construct and equip a company or plant, in or near Mt. Vernon, Alabama, for, to-wit: Johnnie Walker Medical Electronics, Inc., also known as the Johnnie Walker Project; said Defendant willfully and unlawfully omitted to state material facts concerning the corporate structure, ownership, or financial condition of said Johnnie Walker Medical Electronics, Inc., an Alabama corporation, and Johnnie Walker Medical Electronics, Inc., a Missouri corporation; said Defendant willfully and unlawfully omitted to state an itemized list of expenditures to be made from said bond proceeds in connection with the said Johnnie Walker Project; said Defendant willfully and unlawfully omitted to state that a portion of said bond proceeds would be used for purposes other than for the said Johnnie Walker Project, to-wit: as operating capital for to-wit: World Capital Investment Corporation; said Defendant willfully and unlawfully omitted to state that, to-wit: Garet Van Antwerp, who served as attorney for said Industrial Development Board, also served in an advisory capacity, or as attorney for, or incorporated Johnnie Walker Medical Electronics, Inc., an Alabama corporation, the lessee of said Johnnie Walker Project; said Defendant willfully and unlawfully omitted to state that, to-wit: Martin Bieber, who was to receive an attorney's fee from proceeds of said bonds, had previously been permanently enjoined by legal process from, to-wit: participating in the fraudulent sale or purchase of securities; said Defendant willfully and unlawfully omitted to state that the alleged contractor for the said Johnnie Walker Project, to-wit: Earl Hensley or Hensley Contractors, Inc., an Alabama corporation, had not been licensed as a general contractor as required by the laws of the State of Alabama; all in connection with the offer, sale, or purchase of said bonds, and against the peace and dignity of the State of Alabama.

"COUNT III

". . . did, willfully and unlawfully, either directly or indirectly, engage in an act, practice, or course of business which operated, or would have operated, as a fraud or deceit upon said Industrial Development Board, the investing public, or bond purchasers, to-wit: Walter Poole, or other persons, as follows, to-wit:

"(1) Said Defendant was a subscriber of, and held himself out to be the major stockholder of, to-wit: Johnnie Walker Medical Electronics, Inc., an Alabama corporation, which corporation agreed to locate or establish a plant or building in or near Mt. Vernon, Alabama, also known as the Johnnie Walker Project, said Johnnie Walker Project to be financed by the sale of said bonds in the amount of, to-wit: four million dollars ($4,000,000.00); said Defendant, for or on behalf of said Johnnie Walker Medical Electronics, Inc., an Alabama corporation, guaranteed said bonds, or the principle and interest due thereon, but willfully and unlawfully failed to disclose to said Industrial Development Board, the investing public, or bond purchasers, to-wit: Walter Poole, or others, that said Johnnie Walker Medical Electronics, Inc., a newly formed Alabama corporation, had little or no corporate assets, or that said corporation had little or no funds for said Johnnie Walker Project other than said bond proceeds; said Defendant acted as a principal of said Johnnie Walker Project, but willfully and unlawfully failed to disclose to said Industrial Development Board, the investing public, or bond purchasers, to-wit: Walter Poole, or others, that said Defendant's "(2) Knowing that said bonds in the amount of, to-wit: four million dollars ($4,000,000.00) was substantially more than necessary to construct and equip said Johnnie Walker Project, said Defendant willfully and unlawfully established himself as, or accepted the position of, the agent for said Johnnie Walker Medical Electronics, Inc., an Alabama corporation, designated to approve disbursements from said bond proceeds, in order to use, and said Defendant did in fact use, a portion of said proceeds for purposes other than for said Johnnie Walker Project, to-wit: as operating capital for, to-wit: World Capital Investment Corporation; all in connection with the offer, sale, or purchase of said bonds, and against the peace and dignity of the State of Alabama."

consultants or legal advisors, to-wit: Stewart Hopps, Garet Van Antwerp and Martin Bieber, had previously been permanently enjoined by legal process from, to-wit: participating in the fraudulent sale or purchase of securities; or

The counts of the indictment are seriated with Tit. 53, § 28, Code of Alabama, Recompiled 1958, 1973 Cum.Supp., which provides:

"(a) It is unlawful for any person, in connection with the offer, sale or purchase of any security, directly or indirectly

(1) to employ any device, scheme, or artifice to defraud,

(2) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, or

(3) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person."

The quoted provision of the statute is in all respects, other than in the insertion of the word "offer" and that which is...