People v. Augustine

• Decision Date: 16 July 1925
• Docket Number: No. 91.,91.
• Citation: 204 N.W. 747,232 Mich. 29
• Parties: PEOPLE v. AUGUSTINE.
• Court: Michigan Supreme Court

232 Mich. 29

204 N.W. 747

PEOPLE

v.AUGUSTINE.

No. 91.

Supreme Court of Michigan.

July 16, 1925.

Exceptions from Circuit Court, Eaton County; Russell R. McPeek, Judge.

Benjamin F. Augustine was convicted under statute as to sale of stocks, and brings exceptions. Conviction set aside, and new trial granted.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ. Rosslyn L. Sowers, of Charlotte, Burritt Hamilton, of Battle Creek, and George A. Kelly, of Detroit, for appellant.

Andrew B. Dougherty, Atty. Gen., Carl D. Mosier, Asst. Atty. Gen., and C. B. Fisk Bangs, Pros. Atty., and Claude J. Marshall, Asst. Pros. Atty., both of Charlotte, for the People.

SHARPE, J.

Defendant reviews his conviction on exceptions before sentence of a violation of section 14 of Act No. 46, Pub. Acts 1915 (3 Comp. Laws 1915, § 11958), as amended by Act No. 404, Pub. Acts 1921, which provides that--

‘It shall be unlawful for any investment company or dealer or representative thereof, either directly or indirectly, to sell or cause to be sold, offer for sale, take subscriptions for, or negotiate for the sale in any manner whatever in this state, any stocks, bonds, or other securities except as expressly exempted herein, unless and until said commission has approved thereof and issued its certificate in accordance with the provisions of this act.’

The gist of the information is that defendant ‘who was then and there a dealer, * * * did then and there negotiate for the sale to the complainant, and divers other persons to the complainant unknown, of stocks of a certain company known and designated as the Augustine Automatic Rotary Engine Company,’ without having complied with the provisions of the statute requiring the obtaining of a certificate of approval of such stocks from the securities commission.

The Augustine Company is a New York corporation, having its office and factory in the city of Buffalo. Defendant is its president. Sale of its stock had not been authorized in this state. Henry A. Goodrich, of Charlotte, had purchased some stock in 1911 in a company organized by Augustine. In the summer of 1921, Goodrich received a letter from Augustine. Accompanied by four residents of Charlotte, he went to Buffalo. They looked the plant over. They did not see Augustine. After their return, Augustine wrote Goodrich, who again went to Buffalo, accompanied by five of the business men of Charlotte. They looked over the factory and the motor. He gave them some booklets descriptive of the engine. He told them that the stock was all disposed of except 1,000 shares, which had been retained for stockholders of the old company, of which Goodrich was one. They brought some literature and blank applications back with them. A number of applications were made and forwarded by Goodrich, and the stock certificates sent direct to the subscribers.

On October 26, 1921, Augustine came to Charlotte. He had a model of his engine, which he demonstrated to several persons. In the evening, he addressed a meeting, called, however, without his knowledge, at which he explained his rights under his patent, told about his plant and the orders which had been received.

The particular incidents relied on by the prosecution to prove a violation of the law by defendant are thus stated by the prosecution in its brief:

‘Mr. S. E. Cook, of Charlotte, on October 26th went into Goodrich's store to purchase one share of stock. Mr. Augustine was there in the room when he made his application. Goodrich told him that he did not know whether he could let him have the stock or not; that he would check up. Goodrich informed Augustine of Mr. Cook's desire and told Augustine that the stock was oversubscribed. Augustine said: ‘Well, I will tell you, Mr. Goodrich, you can let 100 shares more go, but no more until I get to Buffalo and make arrangements.’ Mr. Goodrich took Mr. Cook's subscription that same day.

‘Joseph D. Powers, of Charlotte, saw Mr. Augustine in the front room of Goodrich's store and afterwards had a talk with him in the back room. He advised Augustine that he desired to purchase some stock, but did not have the money to put into it at that time. He made a proposition to purchase stock on a partial payment plan. Augustine talked over this proposition with Powers and informed him that he might take it up with the board of directors and let him know, which he did. Powers had some correspondence with Mr. Augustine and received a letter stating that his proposition would be accepted. Powers made application on blanks obtained from Goodrich for ten shares of stock and made the first payment of $27. He received a contract and credit for his payment. The contract sent from Buffalo provided for monthly payments of $27, ‘which was the same amount talked over in the back room of Goodrich's store’ between Powers and Augustine on October 26th.'

There was proof tending to show that Augustine appointed Goodrich an agent of the company to sell its stock, and that he was afterwards paid a commission of $4,000 or more, for doing so. One hundred fifty-seven subscribers were listed in the book of sales kept by him.

1. Counsel...