Nelson v. State

• Decision Date: 07 September 1960
• Docket Number: No. A-12878,A-12878
• Citation: 355 P.2d 413
• Parties: Blue Sky L. Rep. P 70,491 Al. S. NELSON, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 413

355 P.2d 413

Blue Sky L. Rep. P 70,491

Al. S. NELSON, Plaintiff in Error, v. STATE of Oklahoma, Defendant in Error.

No. A-12878.

Court of Criminal Appeals of Oklahoma.

Sept. 7, 1960.

Syllabus by the Court.

1. The jury is the sole judge of the facts, and where there is any competent evidence reasonably tending to support the same even though there is a sharp conflict in the evidence, the findings of the jury will not be disturbed.

2. It is the duty of the appellate court to consider all questions apparent on the record and it is the duty of the appellant not only to object to the overruling of a motion to suppress evidence, but also to establish in the record upon what ground such evidence is prejudicial, since the appellate court cannot engage in speculation and can intelligently pass only upon assignments of error which affirmatively appear in the record.

3. When a defendant takes the witness stand and testifies in his own behalf, the prosecution has the right to cross-examine him with the same latitude as any other witness. He may be asked questions pertaining to the matter at issue; but the extent to which a witness may be cross-examined as to matters not relevant to the issue for the purpose of testing his memory and of affecting his credibility, rests largely in the discretion of the trial court.

4. The law puts the burden of investigation upon the party selling securities and it is no excuse if he fails to ascertain if such security cannot in fact be legally sold. He is bound to make such investigation before attempting to make a sale thereof.

5. Repeated successive sales are transactions undertaken and performed one after another within such a reasonable time as to indicate that a single plan and general purpose actuates the vendor.

Plaintiff in error appeals from a conviction for the crime of selling unregistered stock in the District Court of Tulsa County, Oklahoma, Honorable Leslie Webb, presiding judge. Modified and affirmed.

Howard, Carr, & Harris, Tulsa, for plaintiff in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., Robert Simms, County Atty., Tulsa, for defendant in error.

BRETT, Justice.

The plaintiff in error, Al. S. Nelson, as defendant below, was charged by information in the District Court of Tulsa County, Oklahoma, with the crime of selling 10 shares of unregistered stock in the Security Express Corporation for $200 to H. D. Chapman, in violation of the provisions of 71 O.S.A. §§ 301 to 305, under penalties provided therefor in section 407 of said act. He was tried by a jury, convicted, with his punishment left to the court, which fixed the the same at 2 years in the penitentiary and a fine of $500. Judgment and sentence was entered accordingly, from which this appeal has been perfected.

71 O.S.A. § 301 reads as follows:

'It is unlawful for any person to offer or sell any security in this state unless (1) it is registered under this act or (2) the security or transaction is exempted under section 401. Laws 1959, p. 334, § 301.'

We have carefully examined sec. 401 of said act and the stock sold in the instant case does not fall within any of the exemptions set forth therein. A brief summary of the exemptions will be hereinafter set forth in discussing a specific contention raised as to the burden of proof in regard to exemptions enumerated in the act.

Briefly, the proof of the state as testified to by Mr. Scott Burson, Assistant Secretary of State, established that the Security Express Corporation was an Oklahoma concern organized on April 20, 1958, as reflected by the articles of incorporation, and organized for the purpose, among others, of engaging in the money order business, and to deal in securities, stocks, savings certificates, etc.

The State's proof and the defendant's admissions on cross-examination established that this corporation was the defendant's idea; although he was not an officer or stockholder in the corporation, but that he did own some stock at one time. The evidence shows that in spite of the foregoing, Mr. Nelson was the actual chief operative of the concern, running and directing its operations; especially in the matter of collecting and depositing money due the corporation, and in checking on the company accounts. He ran the company without any official connection with the company. It definitely appears that although he tried to disassociate himself from the company, according to his testimony he was its main-spring of motivation.

The company was capitalized at $5,000 for issuance of 500 shares at $10 per share, and was authorized to begin business upon paid-up capital of $1,000. Immediately after incorporation Mr. Nelson began the sale of stock to the public.

The testimony of Mr. W. G. Chambers, authorized agent of the Oklahoma Securities Commission, established that none of this stock offered or sold to the public was ever registered and dealt with as provided in the Oklahoma Securities Act, 71 O.S.A. §§ 1 through 504 inclusive.

The record discloses that 20 shares of the corporate stock of Security Express Corporation was issued to and paid for in the sum of $200 by Mr. H. D. Chapman of Tulsa, Oklahoma. The evidence reveals that the sale was promoted the consummated by Al. S. Nelson. The defendant admitted that he sold this stock to Mr. Chapman and discussed its possibilities, and sold it also to other people, taking their checks in payment therefor. Defendant admitted that these persons included the original incorporators and others not so listed. This evidence was admissible against the contention made that this was an isolated sale. Commonwealth v. Summons, 157 Pa.Super. 95, 41 A.2d 697, as well as for the purpose of establishing a course of dealing.

The evidence in the foregoing regard is sufficient to establish the charge as laid in the information and to support the jury's verdict. It has been repeatedly held that the jury is the sole judge of the facts, and where there is any competent evidence reasonably tending to support the same, even though there is a sharp conflict in the evidence, the findings of the jury will not be disturbed. The trial court did not err in overruling the defendant's demurrer to the evidence for its alleged insufficiency.

The defendant contends that the trial court erred in permitting a certain stockbook to go into evidence in face of his objection that it was obtained by an unlawful search and seizure of private property. The stockbook does not appear in the record. Moreover, the objection to its introduction and the oral motion to suppress in no way advises whose private property was searched, nor in any way advises the court as to the basis of the contention of unlawful seizure. When the motion was made the trial court overruled the same. Moreover, when counsel for defendant stated that he wanted to offer proof on the same and was denied, he should have preserved the record by making a proffer of proof to advise the trial court as to what the evidence would disclose and as a basis for consideration on appeal. This he did not do, but stood on the objection and motion to suppress, which is too general to establish the merits thereof, if any. Appellate courts are not required to engage in speculation and surmise in such matters. The rule is clearly stated in 24 C.J.S. Criminal Law § 1783, page 570 through note 3 on page 573.

'It is the duty of the appellant court to consider all questions apparent on the record, or reserved by bill of exceptions, and it is the duty of appellant to present a correct record which shows affirmatively that the trial court committed error. The appellate court looks to the record only, and while it may review all matters which can be intelligently considered and disposed of on the record presented, it can consider only matters properly a part of the record and will not consider an assignment of error unless the alleged error affirmatively appears of record. The record on appeal must be so complete as to enable the reviewing court to pass intelligently on the question presented, otherwise the appeal will be dismissed or the judgment affirmed as the practice may require * * *.'

This court has repeatedly held that it will not consider an assignment of error unless the assignment of error affirmatively appears of record, and appears from the case-made to be true. Saunders v. State, 4 Okl.Cr. 264, 111 P. 965, Ann.Cas. 1912B, 766; Sweet v. State, 70 Okl.Cr. 443, 107 P.2d 817-821; Herren v. State, 72 Okl.Cr. 254, 115 P.2d 258; Passmore v. State, 87 Okl.Cr. 391, 198 P.2d 439; Clardy v. State, 95 Okl.Cr. 89, 240 P.2d 456; Queen v. State, 23 Okl.Cr. 146, 212 P. 1021, involving excluded evidence, but in point by analogy, and indicating proper procedural practice to preserve the matter for appeal. Slaton v. State, 97 Okl.Cr. 12, 257 P.2d 330, 331, wherein we said:

'The defendant filed a motion to suppress the evidence herein but the record has not been properly preserved to present the same to this court. None of the testimony at the hearing thereon nor the afffidavit and search warrant herein involved was in the record, hence the validity of the search and seizure is not properly before this court for consideration. A case will not be reversed by reason of overruling of motion to suppress the evidence where the case-made does not contain the affidavit, the search warrant, or the evidence taken at the hearing on the motion to suppress. Passmore v. State, 87 Okl.Cr. 391, 198 P.2d 439; Byrd v. State, 91 Okl.Cr. 129, 216 P.2d 596. The case therefore will be determined on its merits.'

Here the record is completely uninformative by statement or otherwise as to what the evidence might have shown in this regard. We have no means of determining if the court erred to the detriment of the defendant's substantial rights in overruling the objection to the evidence of the stockbook (not of record) and its importance, and in not hearing evidence on the motion to...