State v. Walters

Decision Date08 April 1953
Docket NumberNo. 48156,48156
Citation58 N.W.2d 4,244 Iowa 1253
Parties, Blue Sky L. Rep. P 70,203 STATE v. WALTERS.
CourtIowa Supreme Court

C. E. Walters, pro se.

Robert L. Larson, Atty. Gen. of Iowa, Raphael R. R. Dvorak, Asst. Atty. Gen. and John N. Calhoun, County Atty. of Des Moines County, Burlington, for appellee.

BLISS, Justice.

Chapter 502 of the 1950 Code of Iowa, I.C.A., is entitled, and known as, 'Iowa Securities Law'. Its administration is vested in the Commissioner of Insurance for the State of Iowa.

Section 502.3 of the chapter provides: 'Definitions. When used in this chapter the following terms shall, unless the text otherwise indicates, have the following respective meanings: 1. 'Security' shall include any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest in an oil, gas, or mining lease, collateral trust certificate, pre-organization certificate, pre-organization subscription, any transferable share, investment contract, or beneficial interest in title to property, interest in or under a profit-sharing or participating agreement or scheme, or any other instrument commonly known as a security.'

Section 502.4 provides for certain specified exempt securities.

Section 502.5 provides for exempt transactions. Paragraph 3 of this section defines one of the transactions, towit: 'An isolated transaction in which any security is sold, offered for sale, subscription or delivery by the owner thereof, or by his representative for the owner's account, such sale or offer for sale, subscription or delivery not being made in the course of repeated and successive transactions of a like character by such owner, or on his account by such representative, and such owner or representative not being the underwriter of such security.' (Italics ours.)

The particular sale on which the indictment was based was made by defendant in Burlington, Iowa, on August 23, 1950 to Robert Van Weiss, a grocer of that city, for $1,000, evidenced by a check of the purchaser, which defendant cashed. The purchaser received a written instrument executed and acknowledged by defendant on said date. With some immaterial deletions it is as follows:

'1. Whereas, C. E. Walters is the owner of a certain block of oil and gas leases in Des Moines and Lee Counties, Iowa.

'2. For * * * good and valuable considerations * * * said C. E. Walters sells unto Robert Van Weiss 1/32nd pipe line interest in 7/8ths of 160 acres drill block in above mentioned block of leases * * * and agrees to drill a well thereon at least 5000 feet deep unless stopped by igneous rock or granite. * * *

'3. The above purchase by Robert Van Weiss entitles him to an interest in the first well and any additional wells drilled in the above mentioned 160 acre drill block without additional investment except that in event a commercial well is produced that both parties agree that 1/2 of the income from said well shall be paid by the pipe line or purchasing agency into the Burlington Bank and Trust Company, * * * to be used in drilling additional wells on the within mentioned drill block of 7/8ths of 160 acres.

'4. It is distinctly understood that there shall be no additional assessments of any kind in this transaction during the drilling of the first well.

'5. Said Robert Van Weiss is in no way obligated for any debts that C. E. Walters may incur in drilling operations or otherwise.

'6. Any pipe line or purchasing agency shall remit direct to Robert Van Weiss, his share of the proceeds from oil or gas produced on this 160 acre 7/8ths drill block.

'7. This is not a real estate or security transaction, but a pipe line interest only and said Robert Van Weiss has been advised in advance of completing this transaction that he should not make the purchase unless he can afford to lose the money involved herein.

'8. * * *.

'9. Drilling operations must be completed to the 5000 feet mentioned above not later than 6 months from date.'

The indictment was presented to the court on April 14, 1952, at which time, defendant was present and stated that he did not desire counsel and was arraigned and the trial was begun on April 22, 1952. He was his own attorney. He introduced no evidence of any kind, but cross-examined the state's witnesses, and made an argument to the jury, whom he referred to during the trial as 'this intelligent jury of ladies and gentlemen'. He prepared a typewritten Record and Brief and Argument in this appeal.

Mr. Van Weiss for the state testified to the purchase of the instrument, set out above, from defendant, and to the delivery of his check for $1,000 to him, and both papers were received in evidence. The defendant, though not a witness, stated to the court that he had made the sale transaction and had received and cashed the check, H. G. Rump, as a witness for the state, testified that on September 14, 1950 the defendant had sold him an instrument identical in every way with that delivered to Van Weiss except as to its date and the name of the purchaser, for which he gave defendant his check for $1,000 which was paid. Arthur W. Nelson testified to an identical transaction with the defendant on October 5, 1950, and H. L. Murray and Carl D. Wayne each testified to like transactions with defendant, respectively on the 22nd and 28th days of August, 1950. The defendant in his cross-examination of these four witnesses conceded that the sale transactions had taken place with each of them just as they had testified.

Mr. S. E. Orebaugh, Chief Deputy Insurance Commissioner of Iowa, and general counsel for the Insurance Department and the Securities Department, which positions he had filled for eight or more years, was a witness for the state. He had with him the registration records of the Securities Department, and while he was testifying that the instrument, set out above, which defendant had sold to Mr. Van Weiss, and the identical instruments which had been sold to the other witnesses, had never been registered as required by chapter 502 of the 1950 Code of Iowa, I.C.A., the defendant interrupted the witness to state to the court that he admitted that none of the instruments had been so registered.

Mr. Orebaugh testified that, in his judgment, the instrument in the sale transaction on which the indictment was based was a 'security' as defined in Code section 502.3, I.C.A., and was not exempt as provided in Code sections 502.4 and 502.5, I.C.A., and that it should have been registered as provided in Code sections 502.6 and 502.7, I.C.A. He also testified that this was also true of the instruments involved in the sales testified to by the other witnesses, noted herein.

In his cross-examination of Mr. Orebaugh, defendant brought out the fact that the witness had procured an opinion from the office of the Attorney General of Iowa as to whether the instrument sold to Mr. Van Weiss was a 'security', as defined in said chapter 502. Defendant had the witness produce the opinion, and had it marked as his exhibit. The court asked him if he desired to offer it in evidence, and he replied that he did not since it did not mention paragraph 7 of the instrument he had sold. Defendant rested his case at the close of Mr. Orebaugh's testimony, and the state then offered this opinion of the Attorney General in evidence, and it was received, without objection by defendant. This opinion from the office of the Attorney General stated that the instrument was a 'security' under section 502.3(1) of the 1950 Code, I.C.A., as it 'in part defines a 'security' as a 'certificate of interest in an oil lease', a 'transferable share' or a 'beneficial interest in title to property, interest in or under a profit-sharing or participating agreement or scheme'.

'Those portions of Paragraph 2 and 3 of the contract herein referred to specifically purport to create in the purchaser an interest in oil wells to be drilled on property under lease by the seller, as well as a quota-share of the oil to be produced therefrom. In our opinion, the instrument containing these provisions constitutes a 'certificate of interest in an oil lease' as defined in Section 502.3(1) referred to.

'Paragraph 8 of the contract recognized the right of the purchaser to transfer the interest created by the contract. Therefore, in our opinion, the contract constitutes 'a transferable share' within the contemplation of said section 502.3(1). Likewise this contract is obviously 'a profit-sharing or participating agreement or scheme', as defined by said section and therefore, in our opinion, falls within the purview of the statutory definition of a security.'

The opinion stated that the instrument did not come within the exemptions of section 502.4 and 502.5. It referred also to the 'repeated and successive transactions of a like character', mentioned in section 502.5(3).

In his cross-examination of the state's witnesses, and in his argument on appeal, defendant stressed chiefly as the basis of his defense, the fact that paragraph 7 was in the security sold. In a question in the cross-examination of Mr. Orebaugh, defendant said, 'Mr. Orebaugh, the defense's whole case rests on paragraph 7.' The fact that this paragraph 7 was in each instrument received in evidence, tends to indicate that defendant had knowledge of the necessity of registration as provided in said chapter 502, and thought by the insertion of this paragraph, to nullify the statutory provisions.

The record shows that although the defendant had a derrick of some kind on the leased ground, there was never any material attempt to sink a well. What, if any thing, he may have done in this respect, would have no bearing in this case.

Defendant assigned nine errors of the trial court, upon which he relied for reversal. The first seven of these complain of errors in the introduction of evidence, or in instructing the jury. He made but one objection in the direct examination of the state's witnesses, and that...

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