Wright v. State

• Decision Date: 27 May 1936
• Docket Number: 25120
• Citation: 186 S.E. 149,53 Ga.App. 371
• Parties: WRIGHT v. STATE
• Court: Georgia Court of Appeals

186 S.E. 149

53 Ga.App. 371

WRIGHT v. STATE

No. 25120

Court of Appeals of Georgia, First Division

May 27, 1936

Error from Superior Court, Baldwin County; James B. Park, Judge.

T.G Wright was indicted for violation of the Securities Commission Act, all grounds of his demurrer to the indictment were overruled, and he brings error.

Affirmed.

Syllabus by the Court.

1. In stating the form of an indictment which shall be sufficiently technical and correct, Code 1933, § 27-701, does not require that the counts shall be numbered. While it is preferable to follow the practice usually adopted by the solicitor generals of this state and consecutively number the counts, failure so to do will not render the indictment demurrable.

2. It is not necessary in the indictment to negative any of the exemptions provided by the Georgia security laws. Code 1933 § 97-105.

3 The demurrer attacking certain parts of the indictment as being mere bald opinionative statements was not meritorious.

4. As used in the title, and as explained in the act itself, the word "dealer," because of the purpose of the act and the language thereof, covers any person offering, buying or selling, or otherwise dealing or trading in, stocks as agent or broker (except those persons exempted by the act) and, when section 36 of the Acts of 1933, pp. 263, 266 (Code 1933, § 97-9905), made it a felony for any issuer, dealer, broker, or agent to sell, or offer for sale, in this state any security in class D as defined in this act, without having first secured a license so to do from the secretary of state in accordance with the provisions of the act, except as otherwise expressly exempted therein, said section 36, in so far as it uses the word "broker" or "agent," does not contain matter different from what is expressed in the title.

Feagin & Feagin, of Macon, for plaintiff in error.

C.S. Baldwin, Jr., Sol. Gen., of Madison, for the State.

MacINTYRE Judge.

The defendant, T.G. Wright, was jointly indicted with others, the indictment charging them with a felony, to wit, the violation of the Georgia Securities Commission Act. The defendant demurred to the indictment, the judge overruled all grounds of the demurrer, and the defendant excepted. The only question for decision by this court is whether or not the judge erred in overruling the demurrer.

1. Ground 1 of the demurrer objects to the form of the indictment in that it does not specifically number each count thereof; the ground avers that the counts in the indictment should be numbered consecutively in like manner as paragraphs in petitions of civil suits. Code 1933, § 81-103. However, when we look to Code 1933, § 27-701, we find that this section not only states when an indictment shall be sufficiently technical and correct, but also gives the form for every indictment whether in one count or more than one count, and the form for more than one count, as given, does not specifically number the counts. As the instant indictment in this regard follows the form prescribed by this Code section, we do not think ground 1 of the demurrer is good. See, also, in this connection, Bishop's Directions & Forms (2d Ed.) p. 31, § 64. Wharton's Criminal Procedure, vol. 4, p. 48, §§ 79-87. However, we think it preferable to follow the practice of consecutively numbering the counts of the indictment as is generally done by the solicitor generals of this state.

2. The first count of the indictment, omitting the formal parts, alleges: "Did unlawfully sell and offer for sale certain securities to wit: 25 shares of the capital stock of Franklin Savings and Loan Co., of Macon, Georgia, stock certificate number 896, said securities being sold and offered for sale to Mr. and Mrs. W.D. Giles for the sum of $500, without said accused having first secured a license so to do from the Secretary of State in accordance with the provisions of the Georgia-securities-commission law, said accused then and there acting as dealer (italics ours) in said securities, said securities so sold and offered for sale coming within class D as defined in the Georgia-securities law, contrary to the laws of said State," etc.

The second count charged the sale of the same stock while acting as issuer (italics ours) without having first secured a license. The third court charged the sale of the same stock while acting as broker (italics ours) without having first secured a license. The fourth count charges the sale of the same stock while acting as agent (italics ours) without a license having first issued.

Grounds 2, 3, 4, 5, 6, and 7 of the demurrer all go to the different counts in the indictment. These grounds of the demurrer in effect attack each count of the indictment, and say that the securities alleged to have been sold are alleged to come within class D, but no facts are set forth to show that they do come in class D; that, if the charge is selling class D stock without a license, the indictment must clearly negative that it is class A, B, or C stock: that, if it could be A, B, or C class security, then no crime is charged of selling class D security; that Code 1933, § 97-102, in defining "dealer," expressly excepts a salesman from the classification of a dealer, and that the allegations in the indictment are consistent with the assumption that the defendant was merely acting as a salesman, and that the indictment should negative the fact that the accused was merely a salesman, and that the bald opinionative statement that he was a "dealer" is a mere conclusion of the pleader; that the allegation that the defendant was acting as "dealer" is a mere conclusion; that no facts are given to show who owned the stock, for whom the defendant was acting as "dealer," whether for himself or for some one else, for, if the stock was the property of the accused, it would be beyond the power of the Legislature to make criminal the sale in a single instance of the stock which was the property of the accused, unless he first obtained a license; and that the indictment is too vague, indefinite, and incomplete to charge any crime, or to put the defendant on notice with what he is charged.

Code 1933, § 97-301, enumerates the classes of securities covered by the Georgia Securities-Commission Act and divides them into four classes, to wit: Class A, class B, class C, and class D. Thereafter class A is defined, then class B, and then class C, and finally class D securities are defined as "all securities other than those falling within classes 'A,' 'B,' and 'C,' respectively." Code 1933, § 97-305.

We think the allegations in the indictment that 25 shares of the capital stock of the Franklin Savings & Loan Company of Macon, Ga., stock certificate No. 896, were securities coming within class D, as defined in the Georgia Securities Law, are allegations of fact, and not mere bald opinionative statements. The transaction was individualized to such an extent that the accused was, with reasonable certainty apprised by the indictment of the nature of the accusation against him to the end that he would be able to prepare his defense and plead the judgment as a bar to any subsequent prosecution for the same offense. The offense...