This
is a criminal action, and the facts pertinent to this appeal
are as follows:
1.
The defendant and Robert C. Summerville were convicted in the
Superior Court of Buncombe County, North Carolina, on January
22, 1935, on counts one and two of the bill of indictment
under which they were tried. Said counts being as
follows:
"First
Count: The jurors for the State, upon their oath present that
William Dudley Pelley, Robert C. Summerville, Don D. Kellogg
and H. M. Hardwicke, late of the County of Buncombe, State of
North Carolina, on or about the first day of April, 1932, and
at divers other times before and
after said date, with force and arms, at and in said County
did unlawfully, wilfully, knowingly, fraudulently and
feloniously sell and cause to be sold, and offered for sale
and caused to be offered for sale, and solicited the sale and
distribution of securities and stocks of Galahad Press
Incorporated, a corporation organized under the laws of the
State of New York, with its principal place of business in
Asheville, North Carolina, to divers persons, through
advertisement and otherwise in a periodical and magazine
published, mailed and distributed in said State and County
entitled 'Liberation,' and by letters, circulars
etc., which said securities and stocks were not exempted by
and not registered as provided in the provisions of Chapter
149 of the Public Laws of North Carolina, enacted by the
General Assembly of North Carolina, Session of 1927, and
Chapter 71A of the Consolidated Statutes of North Carolina
and all acts amendatory thereof, Code 1939, § 3924(a) et
seq., without having first registered as a dealer and
dealers, and salesman and salesmen in the office of the
Corporation Commission and Commissioner of North Carolina, as
provided by Chapter 149 of the Public Laws of North Carolina,
enacted by the General Assembly of North Carolina, Session
1927, and Chapter 71A of the Consolidated Statutes of North
Carolina and all acts amendatory thereof, against the form of
the statute in such cases made and provided, and against the
peace and dignity of the State.
"Second
Count: The jurors for the State upon their oath further
present that William Dudley Pelley, Robert C. Summerville,
Don D. Kellogg and H. M. Hardwicke, late of the County of
Buncombe, State of North Carolina, on or about the first day
of April, 1932, and at divers other times before and after
said date, with force and arms, at and in said County, did
unlawfully, wilfully, knowingly and feloniously and for the
purpose of selling securities and stocks of Galahad Press,
Inc., a corporation organized under the laws of the State of
New York, with its principal place of business in Asheville,
North Carolina, in this State fraudulently represent to the
purchaser and purchasers, and prospective purchaser and
purchasers thereof, the amount of dividends, interest and
earnings which such securities will yield, in a magazine,
periodical and publication published, mailed and distributed
in said County of Buncombe, State of North Carolina, entitled
'Liberation' which said false representations as
aforesaid were to the effect that:
"'It
is a fact surpassing strange that those who have been most
active in the financial and moral support of the work done by
the Galahad Press, The League for the Liberation, and The
Foundation for Christian Economics this past year, have
suffered few losses of note.
"'The
work which is being done throughout the nation in promoting
these wholesome christian principles, carries with it a
sturdy, constructive vibration. The growth and prosperity of
the Galahad Press this year when other publishing projects
were losing or failing on every hand carries an esoteric
significance not to be ignored.
"'The
first year of the Galahad Press closed on February 7.
Starting on a cash capital of $40, it forged its way ahead at
a time of continually falling markets and ruinous depression,
gaining in volume of business month by month, until it had
done $56,731.57 in amount of business for its first fiscal
year.
"'It
printed and circulated nearly 150,000 copies of its
publications and in connection with The League for the
Liberation it disposed of 90,000 copies of the Weekly
Liberation lessons. It paid out $22,372.83 in salaries to its
workers and its item of postage alone reached $4,095.21. If
its present rate of prosperity continues, it will meet its
preferred stock dividend by its annual stockholders
meeting-date in June.' ***
"'There
remains in the treasury of The Galahad Press over $10,000 of
preferred stock untouched by the volume of business
transacted this past year. This stock is valued at $10 per
share and pays a 6 per cent cumulative dividend'--when in
truth and in fact the said Galahad Press, Inc., a corporation
organized under the laws of the State of New York, was not in
a prosperous condition and was not in a position to meet its
preferred stock dividends, and its preferred stock was not
paying 6% dividend, and those who had been most active in the
financial support of the work done by The Galahad Press had
suffered losses of note, and the disbursements had been much
heavier than set forth in said representations and the said
Galahad Press was in an insolvent and failing condition and
had lost heavily during the time mentioned in said
representations,
against the form of the Statutes in such cases made and
provided, and against the peace and dignity of the
State."
2. By
and with the consent of defendants, in open Court expressed
through counsel, prayer for judgment was continued until the
regular term of the Superior Court for the trial of criminal
cases, for Buncombe County, on February 18, 1935, at which
time the final judgment was to be entered.
3. On
February 18, 1935, the following judgment was entered:
"***
The judgment of the court is, as to both defendants, the
judgment being individual, that the defendant Pelley be
confined in State's Prison at Raleigh, at hard labor, for
a period of not less than one, nor more than two years.
"The
foregoing sentence of imprisonment is suspended for a period
of five years, on the following conditions:
"1.
That the defendant Pelley pay a fine of One Thousand
($1,000.) Dollars and the costs of the case, which bill of
cost has been approved by the Court as made up by the Clerk,
and which, under the authority of the court is to include the
total amount ordinarily for which the bill is made up by the
Clerk, together with the exact amount which Buncombe County
has heretofore paid out for the expenses of the jury during
the thirteen days and the expenses of the official court
stenographer, it being the intent of the Court to reimburse
fully the County for each amount expended by it.
"2.
That the defendant be and remain continuously of good
behavior.
"3.
That he not publish and (or) distribute in the State of North
Carolina any periodical which has to do with, or contains in
it any statement relating to a stock sale transaction or any
report of any corporation as to its financial value, or with
the purpose of effecting a sale of stock in said corporation,
without complying with the capital sales issues statute. ***
"On
Count No. 2, against the defendants Pelley and Summerville,
prayer for judgment continued for five (5) years."
4. On
October 19, 1939, His Honor, Zeb V. Nettles, Judge Presiding,
October Term, Superior Court of Buncombe County, ordered
capias to issue in the case of State v. Pelley, and the
defendant William D. Pelley to be placed under a $10,000.00
bond, to appear before the Judge of the Superior Court of
Buncombe County, at the term of Court beginning on the first
Monday after the second Monday in November, 1939, "then
and there to answer the charge of the State against William
D. Pelley on an indictment for judgment upon conviction for
felony."
5.
Capias was issued and returned by the Sheriff of Buncombe
County, N. C., with the following entry thereon:
"Received October 19, 1939. Due search made and
defendant not to be found in Buncombe County or the State of
North Carolina."
Efforts
to locate the defendant were continued after the return of
the capias issued October 19, 1939, until the arrest of the
defendant, February 10, 1940. The usual "Wanted"
posters were distributed throughout the United States by the
authorities in Buncombe County, stating Pelley was wanted by
the Sheriff's Department and the Courts of Buncombe
County, North Carolina.
6. The
defendant was arrested in Washington, D. C., February 10,
1940, by the police authorities in the District of Columbia,
upon a capias or alias capias issued out of the Superior
Court of Buncombe County, N. C. The defendant refused to
return to North Carolina, whereupon the Governor of North
Carolina issued requisition papers to the proper official of
the District of Columbia, for the extradition of the
defendant to this State.
7. The
defendant applied for his release in a habeas corpus
proceedings in the United States District Court for the
District of Columbia, relief was denied by said Court, appeal
was taken to the United States Court of Appeals for the
District of Columbia, and the decision of the lower Court
affirmed. Petition for writ of certiorari to the Supreme
Court of the United States was denied. A motion to withhold
the order denying petition for writ of certiorari to the
Supreme Court of the United States, likewise, was denied.
After the decision of the Supreme Court of the United States
denying motion to withhold the order denying petition for
writ of certiorari to said Court, the defendant, as required
by the original order of the United States District Court for
the District of Columbia, returned to ...
