State v. Brockman

• Decision Date: 28 July 1924
• Citation: 228 P. 250,39 Idaho 468
• Parties: STATE, Respondent, v. C. W. BROCKMAN, Appellant
• Court: Idaho Supreme Court

228 P. 250

39 Idaho 468

STATE, Respondent, v. C. W. BROCKMAN, Appellant

Supreme Court of Idaho

July 28, 1924

CRIMINAL LAW-SALE OF STOCK OF INVESTMENT COMPANY FAILING TO COMPLY WITH LAW REGULATING INVESTMENT COMPANIES-"BLUE SKY LAWS"-INFORMATION-MOTION TO QUASH-MOTION TO ELECT-DEMURRER-DUPLICITY-ELECTION-NAME OF PURCHASER-BILL OF EXCEPTIONS-ASSIGNMENTS.

1. An information charging a person with the sale of stock of an investment company which has not complied with the law regulating investment companies, under the provisions of C S., sec. 5317, need not state to whom the sale was made.

2. Where a demurrer to an information charging the sale of stock of an investment company which has not complied with the law regulating investment companies is sustained upon the ground that it does not state to whom such sale was made, and thereafter a new information is filed alleging the name of the purchaser, there is not such a new or different charge contained in the second information as would entitle defendant to another preliminary examination.

3. Where an information charges a person with selling stock of an investment company which has not complied with the law regulating investment companies and alleges that such person has failed to obtain a permit to sell stock within the state and has failed to register as required by law, and a demurrer to the information upon the ground of duplicity and a motion upon the same ground to require the state to elect are overruled, the statement of the prosecuting attorney to the effect that defendant was being prosecuted solely upon the charge of selling stock of an investment company which had not complied with the law regulating investment companies constituted an election, if the information was duplicitous and the prosecution being followed out upon that theory by the prosecuting attorney and the trial court, the latter expressly instructing the jury that defendant was being tried upon that one charge, defendant cannot complain that he was prejudiced in this respect.

4. Assignments of error involving the action of the court in overruling an objection to the introduction of any evidence and in its rulings upon the introduction of certain oral and docu- mentary evidence, are not reviewable upon appeal when no exceptions thereto were taken or preserved in a bill of exceptions.

5. Where errors are assigned, if they are not discussed either in the brief or upon oral argument, and no authorities are cited in support of the assignments, they will neither be reviewed, considered nor discussed by this court.

APPEAL from the District Court of the Tenth Judicial District, for Idaho County. Hon. Wallace N. Scales, Judge.

Appellant was convicted of selling stock of an investment company which had not complied with the law regulating investment companies. Affirmed.

Affirmed.

Cox & Martin, for Appellant.

"It is a general rule that the name of the one injured, either in his person or property, by the act of the accused, or of one whose identity is essential to a proper description of the offense, should be stated in an indictment if it is known, or if not known, a failure to state it should be excused by an averment that it is not known." (Joyce on Indictments, pp. 395, 396, par. 354.)

The same rule applies to complaints and it is essential that the complaint should describe the offense with sufficient particularity to enable the defendant to answer.

The state cannot file a complaint so general in its terms that it might be applied to any one of a thousand different offenses and thereafter file an information charging a specific offense and contend that defendant had waived his right to a preliminary hearing upon the specific offense. (State v. Braithwaite, 3 Idaho 119, 27 P. 731; State v. McGreevey, 17 Idaho 453, 105 P. 1047; State v. West, 20 Idaho 387, 118 P. 773; State v. Farris, 5 Idaho 666, 51 P. 772; State v. Fields, 70 Kan. 391, 78 P. 833; State v. Jarrett, 46 Kan. 754, 27 P. 146; People v. Handly, 93 Mich. 46, 52 N.W. 1032; Wade v. Wade (Okla. Cr.), 197 P. 180; State v. Hoben, 36 Utah 186, 102 P. 1000; Hanson v. State (Tex. Cr.), 61 S.W. 120; State v. Boulter, 4 Wyo. 236, 39 P. 883.)

A. H. Conner, Attorney General, and James L. Boone, Assistant, for Respondent.

A complaint upon which a preliminary examination or information is based is sufficient if it designates the offense. (C. S., sec. 8706; State v. McGreevey, 17 Idaho 453, 105 P. 1047.)

The word "sale" ex vi termini includes a person to whom the sale is made. (33 C. J., sec. 441, p. 724, note 77; State v. Leonard, 195 Mo. 283, 190 S.W. 957; State v. Wehr, 57 Mont. 469, 188 P. 930; State v. Ladd, 15 Mo. 430; People v. Adams, 17 Wend. (N. Y.) 475.)

It is necessary to save an exception to the ruling of the trial court on the admissibility or inadmissibility of evidence offered in a criminal case. (C. S., sec. 9006.)

A complaint is sufficient as a basis for a preliminary examination which sets out in general terms the acts or omissions constituting the crime, although it is lacking in other averments necessary in an information. (16 C. J., p. 294, note 68; especially see case of State v. Anderson, 35 Utah 496, 101 P. 385, cited.)

BUDGE, J. McCarthy, C. J., and William A. Lee, J., concur, Wm. E. Lee, J., concurs in conclusion.

OPINION

BUDGE, J.

From the record it appears that on May 24, 1922, a criminal complaint was filed in the probate court of Idaho county, charging appellant under the provisions of C. S., sec. 5317, with the crime of selling stock of an investment company which had failed to comply with the law regulating investment companies and alleging that he sold such stock without a permit authorizing him to do so, and also that since the date of the alleged offense appellant had not been usually resident within the state. Upon this charge appellant waived a preliminary hearing and was bound over to the district court. On October 2, 1922, an information was filed, the charging part of which was identical with that of the complaint. Neither the complaint nor the information alleged to whom the stock was sold. To the information appellant filed a demurrer. The cause came on for hearing on April 28, 1923, and, after argument, the court made its order sustaining the demurrer for the reason that the information failed to allege to whom the stock was sold and also directed that the case be resubmitted with leave to the prosecuting attorney to file a new information. A recess was thereupon taken, after which a second information was filed, the charging part thereof being substantially the same as the previous one, except that it charged a specific sale to one Walter McAdams, and alleged the failure of appellant to register as required by law. A motion to quash the second information was then made by appellant upon the ground that it charged a different offense than that for which appellant was held to answer, and that on the charge contained therein he had not had nor waived a preliminary examination. This motion was overruled. A demurrer interposed to the second information was also overruled. Objection to the impaneling of a jury upon the grounds set forth in the demurrer and motion to quash was then made by appellant, which objection the court likewise overruled. Appellant then made a motion to require the state to elect whether it was prosecuting him for the crime of selling stock of an investment company which had not complied with the law regulating investment companies, or for the crime of selling stock within the state without having a permit authorizing him so to do or having registered as required by law, which motion was overruled. Objection was then made to the introduction of evidence upon the ground that the information did not state facts sufficient to constitute a public offense, and also, if it did state facts sufficient to constitute a public offense, it was another and different offense than that for which appellant was committed. This objection the court overruled. The trial then proceeded and the jury by its verdict found appellant guilty. Thereupon judgment of conviction based upon such verdict was made and entered, from which judgment this appeal is taken, the cause being before us upon bill of exceptions.

Appellant specifies eighteen assignments of error. The first four attack the action of the court in overruling the motion to quash the information, in overruling the demurrer to the information, in overruling appellant's objection to the impaneling of a jury and in overruling the motion to elect. These assignments will be considered together. This prosecution is based upon the provisions of C. S., sec. 5317, which provides as follows:

"Any person or persons, agent or agents, who shall sell, or attempt to sell the stock, bonds or other securities of any investment company, domestic or foreign, or the stock, bonds or other securities by it offered for sale, who have not complied with the provisions of this chapter, or any investment company, domestic or foreign, which shall do any business, or offer or attempt to do any business, except as provided in section 5306, which shall not have complied with the provisions of this chapter, or any agent or agents who shall do or attempt to do any business for any investment company, domestic or foreign, in this state, which agent is not at the time duly registered and has fully complied with the provisions of this chapter, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined for each offense not less than $ 100 nor more than $ 5000, or by imprisonment in the county jail for not more than 90 days, or both such fine and imprisonment, at the discretion of the court."

Appellant first contends that because the demurr...