People v. Dean

ARCHBALD, J.,

pro

tem.

Defendants were jointly charged in count I of an information with the crime of grand theft, and in counts II and III thereof with a violation of the Corporate Securities Act. They severally moved to set aside each of said counts on the ground that they were not legally committed, in that the evidence introduced before the committing magistrate failed to show that the offenses charged were committed. The trial court granted the motion of defendant Seidlitz as to all counts and that of defendant Dean as to counts II and III. Plaintiff has appealed from such orders of dismissal.

The evidence taken before the committing magistrate except in so far as the exhibits are concerned, is not before us. The record in the superior court on the matter of the motions is, however, and it appears therefrom that the theory under which count I was framed was that there was a conspiracy to commit the act between the two defendants. The trial

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court stated at the hearing that there was no evidence connecting the defendant Seidlitz with the transaction, and appellant concedes that the dismissal of such defendant as to count I was proper.

It was stipulated at the hearing in effect that there was no evidence introduced at the preliminary hearing showing that no permit was issued by the corporation commissioner permitting the securities in question to be sold.

Count I of the information charges the sale of a security to one Walter P. Sagar without permission of the corporation commissioner so to do, and count II alleges a similar sale to one A. R Greenslit. Section 3 of the Corporate Securities Act (Stats. 1917, p. 673; Deering’s Gen. Laws, 1931, vol. 2, pp. 1924, 1928) prohibits the sale of any security by the issuer thereof without a certificate having first been issued by the corporation commissioner permitting the same. Section 6 of the act prohibits anyone from acting as agent or broker without first having secured a certificate from such commissioner authorizing such action. Section 17 makes it unlawful for any company, which includes any corporation, etc., or individual, issuing securities, either directly or indirectly, without such a permit, or contrary to the conditions of a permit if one has been issued, to issue or sell any security; and section 18, so far as material here, provides that " Every officer, agent or employee of any company and every other person who knowingly authorizes, directs or aids in the issue or sale of or issues or executes or sells, or causes or assists in causing to be issued, executed or sold, any security . . . contrary to the provisions of this act ... is guilty of a public offense” and shall be punished as provided therein. Appellant admits that respondents are not charged either as being issuers of securities involved or as acting as agents or brokers for the issuer, but of violating section 18 of the act in selling a security for which no permit was obtained authorizing the issuance thereof. It is appellant’s contention that having shown the sale of a security coming within the meaning of the act, the burden of negativing the issuance of such a permit was not required of the prosecution to support a commitment, but that the burden was upon defendants to prove the affirmative thereof as a matter of defense.