People v. Simonsen

[99]

WORKS, J.

The defendants were convicted of the crime of selling a copartnership “security” without a permit from the commissioner of corporations so to do. Defendant Simonsen appeals from the judgment of conviction and from an order denying his motion for a new trial.

It is contended that defendants were not partners and that, therefore, they are not within the provisions of the Corporate Securities Act (Stats. 1917, p. 673, as amended). There was, however, much evidence at the trial which tended to fasten the partnership relation upon them. In fact, the record is so replete in that regard that it is not worth while here to reproduce the showing made. There was some evidence to the contrary, it is true, but the record presents nothing more than a conflict of evidence upon the question. The jury was, of course, within its province in resolving this conflict as it saw fit and its conclusion upon the subject is final.

At the trial defendants offered to prove that they, “prior to the time that any securities were sold or offered for sale, had prepared the form of contract” for such sales, “that they submitted this form of contract to the Corporation Commissioner— . . . that they stated to the Corporation Commissioner at that time that the plan that they were developing was exactly the same plan that had been successfully employed by one Leighton in San Francisco, which plan was known to the Corporation Commissioner and which plan was a plan whereby one Leighton

as an individual

[italics ours] sold profit sharing certificates . . . and that . . . the Corporation Commissioner stated that he had been advised that the Leighton plan had been passed upon by the Superior Court of San Francisco, and that the Leighton plan did not come within the jurisdiction of the Corporation Commissioner.” The court sustained an objection to the offer and appellant insists that the ruling was error. The evidence offered was plainly inadmissible, as defendants were under prosecution as partners and not as individuals. We are not to be understood as indicating that the evidence would have been proper if the “Leighton plan” had been said to be a partnership plan, or if defendants had been under a charge as individuals. In fact, we have recently announced a contrary rule in a case in which one sought to defend against a charge of