Sisson v. State

• Decision Date: 22 January 1964
• Docket Number: No. A-13276,A-13276
• Parties: Blue Sky L. Rep. P 70,630 Allan R. SISSON, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 55

404 P.2d 55

Blue Sky L. Rep. P 70,630

Allan R. SISSON, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-13276.

Court of Criminal Appeals of Oklahoma.

Jan. 22, 1964.

Rehearing Denied Feb. 17, 1965.

Second Petition for Rehearing Denied Aug. 2, 1965.

Syllabus by the Court

1. It is unlawful for any person to offer or sell any security in the State of Oklahoma that is not registered as provided by law, unless the security or transaction is expressly exempted under Tit. 71 O.S.A. § 401. 71 O.S.A. § 301.

2. When a public offense is committed, partly in one county and partly in another, or the acts or effects thereof, constituting or requisite to the offense, occur in two or more counties, the jurisdiction is in either county. 22 O.S.A. § 124.

3. Where a commission or other renumeration is paid either directly or indirectly in connection with the sale or distribution of stock of a corporation, stock so issued is not exempt from taxation.

4. The jury is the sole judge of the facts and where there is any competent evidence reasonably tending to support the jury's finding of fact, even though there is a sharp conflict in the evidence, the finding of the jury will not be disturbed.

Appeal from the Superior Court of seminole County; Bob Aubrey, Judge.

Allan R. Sisson was convicted of the crime of selling securities without registering the same, and appeals. Affirmed.

John B. Ogden, Oklahoma City, Bishop & Bishop, Seminole, for plaintiff in error.

Charles Nesbitt, Atty. Gen., J. Dennis Ryan, Atty., Oklahoma Securities Commission, Oklahoma City, Hugh H. Collum, Asst. Atty. Gen., for defendant in error.

PER CURIAM.

This is an appeal by Allan R. Sisson, plaintiff in error, defendant below, from a conviction by a jury entered on May 15, 1962, in the Superior Court of Seminole County, Oklahoma, on a charge by information of selling securities on October 16, 1959 without the same being registered as provided by Title 71, § 301 to § 305, inclusive, Oklahoma Statutes annotated. The foregoing charge is within the penalty provisions of § 407 of said Title.

The alleged transaction involved 1000 shares of The Future Security Life Insurance Company of America for the sum of $2000. Upon the finding of guilt, the jury fixed the punishment at a fine of $500.00. Judgment and sentence was entered accordingly, from which this appeal has been perfected.

Briefly, the facts involved as found by the jury, disclose that the securities involved were 1000 shares of The Future Security Life Insurance Company of America sold at $2.00 per share. The State's case established the offer was made to Marion K. Khoury of Konawa, Oklahoma, in his store in Seminole County. The sale was consummated after numerous conversations (probably as many as fifteen or more), but it was agreed that to consummate a sale such as this would generate enthusiasm, if the deal could appear to have been closed at the corporation shareholders' organization meeting in Oklahoma City on October 16, 1959. Hence, a check was delivered to Mr. Allan R. Sisson, sales promotion agent for the company, for $4,000.00 in Oklahoma City, Oklahoma at said meeting. It is not clear why the check was made for $4,000.00 instead of $2,000.00. It is possible that it was a part of the promotion gimmick to make the check for $4,000.00 instead of the agreed sum of $2,000.00. The next day Mr. Khoury wanted to get the $4,000.00 check back and execute a check for the $2,000.00 purchase price which he should have issued in payment for the stock. By that time, he was back in Konawa. It appears that he contacted the defendant, Sisson, and directed the check be mailed back to him so he could effect a correction in a new check for $2,000.00. The record is not clear as to when this was done (at least from the oral testimony of Mr. Khoury). But the $2,000.00 check appears to have been cashed in Oklahoma City on October 19, 1959. Thus it clearly appears that the change in checks had to be effected between Friday night, October 16, and Monday, October 19, 1959. It is contended that this could not have been done in so short a space of time, but to so contend is to ignore the speed of motorized transportation and the short distance between Oklahoma City and Konawa, as well as a salesman's avidity. The $4,000.00 check could easily have been returned and the $2,000.00 check picked up on Saturday and deposited in Oklahoma City on Monday, October 19, 1959. This transaction as to the check could even have been effected on the same day the check for $2,000.00 was deposited, on October 19, 1959. It is within the realm of reasonable probability that such was the case.

In any event, it cannot be denied that the offer to sell the unregistered stock was made in Konawa, Oklahoma, which brings this transaction within the provisions of Title 71, § 301, O.S.A. as amended 1959, as follows:

Registration Requirement.

'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.'

The defendant's first contention is that Seminole County did not have venue of the prosecution but that the venue should have been laid in Oklahoma County where the stock transaction, according to Sisson, took place. In this connection, the offer to sell having been made in Seminole County, Oklahoma, it was sufficient to clearly establish venue in Seminole County. The defendant contends that the stock was sold in Oklahoma City where the sale was consummated, which would place venue in Oklahoma County. Conceding that were true (which we do not believe this record supports, the stock check in the correct amount of $2,000.00 actually having been made and delivered in Konawa and the stock delivered there), it avails the defendant nothing under the provisions of Title 22 O.S.A. § 124, reading as follows, to-wit:

'When a public offense is committed, partly in one county and partly in another county, or the acts or effects thereof, constituting or requisite to the offense, occur in two or more counties, the jurisdiction is in either county.'

This statute has been unheld in Troup v. State, 51 Okl.Cr. 438, 2 P.2d 591; Arnold v. State, 15 Okl.Cr. 519, 178 P. 897; Re Application of Severn, Okl.Cr., 330 P.2d 748; and under the facts as found by the jury, and the statutes in cases in support thereof, venue is properly laid in Seminole County.

Next it is contended by plaintiff in error that the securities sold were exempt under the law, same being interim pre-organization certificates not required to be registered under the statutes, and such being the case the defendant committed no crime. Under Nelson v. State, Okl.Cr., 355 P.2d 413, it was held:

'* * * proving that the security is exempt is an affirmative defense, with the burden upon the defendant to bring himself within the terms of the exemption claimed under statute. 71 Okl.St.Ann. §§ 1-504, 401.'

The defense herein proceeds under the contention that they were interim certificates and further that they were controlled by the laws in force and effect prior to July, 1959, or the laws of 1931 and 1933. Both of these assumptions are entirely false. These securities sold Mr. Khoury were not interim securities, but were personal stocks of defendant Sisson. This conclusion is sustained by the following extract of testimony of defendant Sisson. On cross-examination by County Attorney Pipkin, Mr. Sisson testified as follows:

'Q. The one thousand shares of interim certificates or pre-organizational certificates, isn't that what you sold him? A No.

'Q. You sold him stock? A Yes, sir, my personal stock.'

Hence, it clearly appears that the stock sold Mr. Khoury by defendant Sisson was not exempt pre-organization or interim stock, but Sisson's personal stock issued to him as a commission by the company, and the proceeds of this transaction went to Sisson personally....