People v. Marr

BARNARD, P. J.

The defendant pleaded guilty to two counts of an indictment charging him with violations of the Corporate Securities Act. Some two and one half years later, he moved to vacate the judgment on the ground that the court had no. jurisdiction to enter the same because neither count of the indictment stated a public offense. This appeal is from the order denying that motion.

Each count of the indictment alleged that the appellant at a certain time and place wilfully, unlawfully and knowingly sold to a certain person ‘ ‘ a security and certificate of interest in the North American National Corporation” without the appellant “or anyone else” having obtained a permit from the Corporation Commissioner of this state. The appellant contends that no public offense was there stated. It is argued that the indictment does not allege the selling of a certificate of interest in a “profit sharing agreement” or a certificate of interest in an “oil, gas or mining title or lease” and that these are the only certificates of interest which are defined as securities in the Corporate Securities Act.

Subsection 7 of section 2 (a) of the Corporate Securities Act [Deering’s Gen. Laws, 1937, Act 3814] at the time in question, read in part as follows:

“The word ‘security’ shall include any stock, bond, note . . . certificate of interest or participation, certificate of interest in a profit-sharing agreement, certificate of interest in an oil, gas, or mining title or lease . . . any transferable share, investment contract. ...”

By its language this section defines a certificate of interest or participation as a security and then goes on to separately define as securities “a certificate of interest in a profit-sharing agreement” and “a certificate of interest in an oil, gas or mining title or lease.” It cannot be held that the first of these definitions is meaningless or that it was intended

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to exclude all certificates of interest except those in profit-sharing agreements and those in oil, gas or mining titles or leases. The inclusion in the statutes of the words “certificate of interest or participation,” in addition to the certificates of interest which are otherwise specifically mentioned, indicates an intention to include some other certificates of interest as securities. In view of the purpose of the entire act it is only reasonable to suppose that it was intended by this portion thereof to define as a security a certificate of interest or participation in a corporation or association, which is one of the more common forms of the general kind of securities which the act was designed to cover.