State v. Weisser

• Decision Date: 16 September 1968
• Docket Number: Cr. N
• Citation: 161 N.W.2d 360
• Parties: STATE of North Dakota, Plaintiff, Respondent, v. Carl WEISSER, Defendant, Appellant. o. 359.
• Court: North Dakota Supreme Court

Page 360

161 N.W.2d 360

STATE of North Dakota, Plaintiff, Respondent, v. Carl WEISSER, Defendant, Appellant.

Cr. No. 359.

Supreme Court of North Dakota.

Sept. 16, 1968.

Syllabus by the Court

1. Where the charges against two defendants were identical and arose out of the same events so the evidence as to each was identical and the defendants could have been charged in a single information, it was not error nor was it an abuse of discretion for the trial court to order a consolidation of the cases for trial.

2. A promissory note given for a personal loan is a security as defined by the Securities Act of 1951 as it is a 'note' and also 'evidence of indebtedness.' Section 10--04--02(12), N.D.C.C.

3. Giving a promissory note as evidence of indebtedness in exchange for a personal loan constitutes a sale of a security within the meaning of the Securities Act of 1951.

4. Where the defendant is charged with selling securities, without being registered as a dealer or salesman under the Securities Act of 1951, it was not error to admit evidence of other sales of securities by the defendant as bearing upon the question of whether the defendant was required to be registered.

5. Where a person engages in this state directly in selling securities issued by such person and makes nine successive sales within a period of two and one-half months, he was engaged for 'all or part of his time' in selling securities and therefore was a 'dealer' as defined by Section 10--04--02(2), N.D.C.C.

C. J. Schauss, Mandan, for appellant.

Lester J. Schirado, Mandan, and Helgi Johanneson, Atty. Gen., and Donald R. Holloway, Asst. Atty. Gen., Bismarck, for respondent.

TEIGEN, Chief Justice.

The defendant has appealed from the verdict, the final judgment of conviction and from an order denying a new trial, as a result of his conviction of the crime of selling securities without being registered as a securities dealer or salesman.

The defendant raises two principal issues in his appeal. He asserts it was error for the trial court to consolidate the action against the defendant with a similar action against one Pius T. Weigel for the purpose of trial, and that a promissory note given by an individual for a personal loan is not a security within the meaning of the Securities Act contained in Chapter 10--04, North Dakota Century Code, and therefore defendant was not a dealer required to be registered under the Act as he was not engaged in the sale of securities.

The facts are not in dispute. The two defendants, Weisser and Weigel, together approached one Henry Entzel and stated that they wished to borrow $25,000.00, which would be repaid in 60 days. Mr. Entzel did not agree to loan them this amount of money but did loan them $2,500.00 to be repaid in 60 days. The defendants in return gave Mr. Entzel a promissory note dated May 21, 1966, written on a standard note form furnished by the defendants in the amount of $3,000.00, payable in 60 days and bearing interest at 7 per cent per annum. The blank spaces on the form were filled in by the defendant Weisser and each defendant signed the note as a maker. The transaction was completed in the presence of Mr. Entzel. The defendants paid the sum of $400.00 to apply on this note but no additional payments have been made. It is upon this transaction the defendants were charged.

It also appears from the record that on March 7, 1966, the defendants had borrowed $1,500.00 from Mr. Entzel at which time they gave him a promissory note in the amount of $1,800.00, which was paid about 40 days after the loan was made. The record also discloses several other similar transactions with other lenders, all participated in by the two defendants jointly as borrowers. They are as follows:

On April 20, 1966, the defendants borrowed $1,000.00 from one James Wanner.

On April 1, 1966, they borrowed $1,500.00, and

On April 20, 1966, the further sum of $4,000.00 from one Clarence J. Pulley.

On May 6, 1966, they borrowed $1,000.00 from one George Ferderer.

On May 12, 1966, they borrowed $5,000.00 from one Harry Tatley.

On May 18, 1966, they borrowed $1,000.00 from one Pete Privatsky, and

On May 24, 1966, they borrowed $5,000.00 from one Herbert Nathan.

In each of these transactions the defendants gave to the person from whom the money was secured a promissory note for a sum substantially greater than the amount loaned. All of the notes were made payable in 90 days, more or less, from the date of the transaction. Each note was written by the defendant Weisser in the presence of the lender and then signed by each of the defendants (Weisser and Weigel) and delivered to the lender. It is also clear from the record that the defendants, in negotiating for the loans, told the lenders that they had an opportunity to purchase corporate stock from a widow which they could sell at a substantially higher price to another person, but that the widow would not part with the stock until she was paid for it and the purchaser would not pay them the purchase price until they delivered the stock. Therefore, they told the lenders they needed sums of money ranging all the way from $10,000.00 to $25,000.00 for the purpose of acquiring the stock from the widow and delivering it to the purchaser; that they would realize a substantial profit on the transaction and, therefore, as soon as the transaction was completed, they could repay the loans plus the bonus added as a part of the principal set forth in the promissory note. Thus it appears that during a period of two and one-half months, from March 6, 1966, to May 21, 1966, the defendants issued nine promissory notes for varying amounts in return nor money received.

Both defendants were present and participated in each of these transactions.

Separate criminal actions were instituted against each of the defendants on the same transaction and charging the same crime. The trial court ordered, on the motion of the State, that the two actions be consolidated for the purpose of trial. The actions were consolidated and tried before a single jury. The jury was instructed that there were two separate actions; one against each of the defendants named, and that the actions had been consolidated for the purpose of trial only, and that the jury should consider them separately. It also directed that separate verdicts be returned in each case. Separate verdicts of guilty were returned by the jury.

The defendant Carl Weisser has appealed and the first question presented is whether, in the absence of a statute, it was error for the trial court to consolidate the two cases for trial. The appealing defendant has cited no authority supporting his contention and we have found none.

The record in this case discloses that the defendants might have been joined in one information and tried together. The charge in each case arose out of the same series of events and is based upon the same acts and transactions, constituting a single act, carried out under a common scheme or plan and was engaged in equally by both defendants. No evidence was introduced that would not have been admissible against each defendant if tried separately except the attestation made by the North Dakota Securities Commission as to each defendant that he was not registered as a securities dealer or salesman during the time in question. This fact was not denied, by either defendant.

It appears that we do not have a statutory provision specifically providing that a trial judge may consolidate for trial defendants who have been separately charged with a crime arising from the same set of facts.

There is no reason that we see that the two defendants could not have been jointly charged in a single information. Section 29--21--07, N.D.C.C., and the decisions annotated under that section provide that defendants charged jointly in a criminal action are not entitled to separate trials as a matter of right. The granting of separate trials in such cases is largely within the discretion of the trial court and depends upon the circumstances from which it is apparent to the court that the ends of justice require.

South Dakota has passed on a similar situation where three men were charged in separate informations with the crime of rape. In passing on the question the court stated that there was no statutory authority for the consolidation for trial of separate informations, but held that the evidence disclosed that there was a common design on the part of all the defendants and that they could have been jointly charged in one information and thus there was no error resulting from the consolidation. State v. Best, 76 S.D. 220, 75 N.W.2d 913 (1956).

Wisconsin has also passed on the question. The Wisconsin Supreme Court held that the circuit court had jurisdiction to consolidate for trials separate indictments against three defendants who were charged with the same crime of murder and attempted murder and whether they should be so tried was discretionary with the trial court. It appears Wisconsin had no statutes specifically providing for such consolidation. State ex rel. Nickl v. Beilfuss, 15 Wis.2d 428, 113 N.W.2d 103 (1962). In passing upon the question of whether the court abused its discretion, in ordering a consolidation for purposes of trial, the Wisconsin court held that where charges against three defendants were identical, and arose out of the same events, and the same witnesses were called in the case of each defendant, and no apparent antagonism was shown in connection with the defenses of the three accused parties, the court did not abuse its discretion in ordering a consolidation of the cases for trial. Cullen v. State, 26 Wis.2d 652, 133 N.W.2d 284 (1965).

Other courts have also held that where persons are indicted separately it does not prevent their being tried jointly. People v. Schram, 1 Mich.App. 279, 136 N.W.2d 44 (1965); Commonwealth v. Gallo, 275 Mass. 320, 175 N.E. 718, 79 A.L.R. 1380 (1931). If there is an issue of fact...