Shappley v. State, 48603

• Decision Date: 09 October 1974
• Docket Number: No. 48603,48603
• Court: Texas Court of Criminal Appeals
• Parties: Perrin SHAPPLEY, Jr., Appellant, v. The STATE of Texas, Appellee.

Page 766

520 S.W.2d 766

Perrin SHAPPLEY, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 48603.

Court of Criminal Appeals of Texas.

Oct. 9, 1974.

Appellant's Motion for Rehearing Denied Nov. 6, 1974.

State's Motion for Rehearing Denied April 2, 1975.

Tom B. Bartlett, Jr., Marlin, for appellant.

Elmo F. Parsons, County Atty., Wm. H. Davis, State Securities Board, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

The appellant was convicted for selling securities without have been registered as a dealer or salesman in Texas. Punishment was assessed by the jury at $5,000 fine and five (5) years' confinement (probated).

Briefly, the facts are that on February 8, 1972, appellant made a telephone call from Scottsdale, Arizona, to Dr. Charles Cornwell in Marlin, Texas, offering to sell and soliciting subscriptions for certain securities; i.e., City of East St. Louis Bridge Bonds. The evidence indicates appellant was not actually in Texas until sometime after the sale was confirmed through a brokerage house in Scottsdale. Appellant was subsequently indicted in Falls County. During the course of the trial, several collateral offenses involving similar transactions with a Dr. Pieratt in Moore County were proven by the State.

Appellant has proffered several grounds of error dealing with the law which governs where the sale took place. It is his contention that the sale occurred in Arizona and therefore he is not subject to prosecution in Texas. He relies upon Tex.Bus. & Comm.Code Ann., V.T.C.A., Sec. 8.301(a) (1968) which provides that upon Delivery of a security the sale is consummated. Sec. 8.313(a)(3) defines Delivery as occurring when a broker sends a purchaser. confirmation of the sale or otherwise identifies a specific security in the broker's possession as belonging to the purchaser. Since the appellant telephoned from Arizona and the confirmation of the sale was issued from an Arizona broker, it is his position that the sale occurred in Arizona. We disagree. The Business and Commerce Code as adopted in 1966 in Sec. 10--104(3) specifically provides that the Securities Act, Art. 581--1 et seq. Vernon's Ann.Civ.St., was not repealed or diminished by its enactment. Furthermore, it declares that any inconsistency between the Act and Code will be controlled by the Securities Act. In the Securities Act, the activity meant to be proscribed is specifically defined. Art. 581--29(A) makes it a felony for any person to sell, offer for sale or delivery, solicit subscriptions or orders for, dispose of, invite offers for, or deal in any manner in any security without being a registered dealer or salesman. The term 'sale' or 'offer for sale' is defined in Art. 581--4(E) to include a subscription, a solicitation of sale, a solicitation of an offer to buy, an offer to sell, or an attempt to sell. The legislative intent clearly was to impose criminal sanctions for almost any dealing in securities without a license.

This is a case of first impression in Texas. However, other jurisdictions have directly addressed themselves to this issue. It was squarely dealt with in People v. Augustine, 232 Mich. 29, 204 N.W. 747 (1925) where the Supreme Court of Michigan interpreted a similar statute. They held the unlawful act was the 'offering for sale.' If the offer was made within the state, it would be immaterial whether it was intended that the sale would be finally consummated in another state. That court said:

'Liability for a violation of the provision may not be evaded by arranging that the subscription secured as a result of the negotiation is to be sent . . . to a place without the state and the sale consummated by the mailing of the stock to him.'

We find this case persuasive. The telephone negotiations between appellant and Dr. Cornwell at the very minimum amounted to an 'offer' to a person within the state. The fact the sale was to be finalized in Arizona is immaterial. Criminal liability attached when appellant commenced dealing in securities within the state, regardless of where the commercial technicality of 'delivery' was effectuated. Therefore, appellant is subject to the security laws of Texas. It follows that it would likewise be immaterial whether or not Arizona required dealers in securities to be licensed since the security laws of Texas govern this transaction.

Next, appellant claims the court erred in overruling his motion to quash the indictment because it did not sufficiently describe the bonds. The indictment alleged that appellant sold '. . . a certain security, to wit: City of East St. Louis Bridge Revenue Refunding and Improvement Bonds, 3.75% Due January 1, 1985.' It is appellant's contention that the exact number of bonds alleged to have been sold should be specified. He relies solely on Moore v. State, 473 S.W.2d 523 (Tex.Cr.App.1971) where it was held that failure to include the number or kind of tires stolen in an indictment for felony theft was fatally defective. It is noted that in the instant case the kind of bonds was alleged. In Byrd v. State, 456 S.W.2d 931 (Tex.Cr.App.1970) the distinction is made regarding the offense of robbery. There, the exact amount of money taken was not contained in the indictment. This Court held it immaterial for the offense was committed whether '. . . a penny, a nickel, or $200 or more . . .' was taken. The logical distinction between theft from the person and various other kinds of theft was explained in Cousins v. State, 154 Tex.Cr. 5, 224 S.W.2d 260 (Tex.Cr.App.1949). Although related offenses, the distinguishing features are that in theft from the person the property must be taken from the person and the value of the property taken does not enter into the offense. Since the exact amount of money taken is not an element of the crime, the State is not required to plead it in the indictment.

These situations are analogous to the instant case. Here, there is no jurisdictional requirement which must be pled as in felony theft cases. It is immaterial whether one bond or a hundred bonds are dealt in or sold. As long as the bond(s) are unregistered, strict liability is imposed regardless of how many securities are involved. We conclude it was not error to omit the precise number of bonds in the indictment; however, we note that as a matter of practice it would be preferable to do so.

It is further contended that the bonds should have been set out in haec verba in the indictment. It has long been held that in cases involving the illegal sale of unregistered securities it is not necessary that the stock certificate be put in haec verba in the indictment. Aiken v. State, 137 Tex.Cr. 211, 128 S.W.2d 1190 (Tex.Cr.App.1938); Sharp v. State, 392 S.W.2d 127 (Tex.Cr.App.1965). Compare Terry v. State, 471 S.W.2d 848 (Tex.Cr.App.1971). Admittedly, it is better pleading to incorporate in the indictment the stock certificate itself, but it is not essential. Sharp v. State, supra.

While haec verba pleading is not necessary, an indictment must still meet the requirements of Arts. 21.04 and 21.11, Vernon's Ann.C.C.P. Art. 21.04 provides that, 'The certainty required in an indictment is such as will enable the accused to plead the judgment . . . in bar of any prosecution for the same offense.' This indictment adequately identified the transaction to protect appellant's right against double jeopardy. ¹ Art. 21.11 requires that the indictment shall charge the commission of on offense in ordinary and concise language so that a person of common understanding will know what is meant. The degree of certainty necessary is that which gives the defendant notice of the particular offense with which he is charged. This case presents no problem of fair notice because the entire transaction with Dr. Cornwell was sufficiently identified. From a reading of the indictment, appellant should have known what he was charged with to enable him to prepare his defense. Therefore, the basic requirements of Art. 21.04 and Art. 21.11 are satisfied and the indictment is sufficient. Appellant's fifth ground of error is overruled.

In appellant's next ground of error, complaint is made of the court's refusal to suppress evidence of extraneous sales of securities to Dr. Pieratt in Moore County. Appellant relies upon the principle that an accused is entitled to be tried on the accusation made in the state's pleading and not for some collateral crimes or being a criminal generally. E.g., Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972); Wagner v. State, 463 S.W.2d 432 (Tex.Cr.App.1971). It has been consistently recognized by this Court that this is the general rule; however, several exceptions have been established. The most important ones relating to the case at bar are those of scienter and common plan, scheme or design. Albrecht v. State, supra at pg. 100. The indictment contained four counts: that appellant unlawfully engaged in the business of a salesman of securities; that he unlawfully engaged in the business of a dealer in securities; and two counts charging him with fraudulently misrepresenting material facts relating to the value and future of the bonds. ² Under the first two allegations in the indictment, it was admissible to show appellant made other offerings and sales to the public in order to show that this particular sale was not an isolated transaction and that he was engaged as a dealer in securities. Under the fraud counts, the extraneous sales were admissible to show intent or guilty knowledge on the part of the appellant in fraudulently misrepresenting facts concerning the sale of the bonds. This Court has held that extraneous offenses of this nature are admissible for the purpose of showing that appellant was 'dealing' in securities. Springfield v. State, 172 Tex.Cr. 341, 356 S.W.2d 940 (1962); Atwood v. State, 135 Tex.Cr. 543, 121 S.W.2d 353 (1938); cf. Vlassis v. State, 162 Tex.Cr. 484, 286 S.W.2d 934 (1956)....