People v. Von Brimer

WOOD (Parker), J. In a jury trial defendant was convicted of violating section 26104, subdivision (f), of the Corporations Code (selling a security without having a permit). He was also convicted on three counts of grand theft. Proceedings were suspended and probation was granted. Defendant appeals from the judgment, sentence, and order denying his motion for a new trial.

Appellant asserts that the judge was biased against him; the jury was not properly instructed; there were errors in rulings as to admissibility of evidence; the deputy district attorney was guilty of misconduct; and the reporter should have reported the argument of counsel for appellant. Appellant does not contend that the evidence was insufficient to support the verdicts.

Mr. Curry, the victim of the offenses, met appellant as the result of having read a newspaper advertisement. At that meeting in May, 1955, appellant said that he had a plan for developing an area which was about 2% miles east of Palm Springs. Appellant exhibited the lot plan to Mr. Curry and took him to the area and pointed out the lots. Appellant said that he had an option on the lots and that he wanted $15,000 for a half interest in a corporation that he wanted to form for the development of the land. Mr. Curry said he would invest $10,000 for the purpose of acquiring the lots. Appel[572]lant said that that amount of money would cover the amount needed to procure the lots. Appellant also said that it would take $30,000 to develop the lots; that Mr. Curry would get a one-third interest for the $10,000; the money would be used for picking up the option and acquiring the land so that construction could get started; appellant would have an agreement prepared and then they would meet again for the purpose of signing it. About a week later, appellant brought a “Pre-Incorporation Agreement” to Mr. Curry’s home and asked that they form a corporation on the basis of that agreement. At that time, appellant also said he was about to pick up the option. Mr. Curry testified that he “agreed to the forming of the corporation,” and that he paid $900 to appellant as earnest money. Then appellant signed the agreement. About a week later, when Mr. Curry paid an additional $100, appellant said, “We are starting proceedings to incorporate.” About two weeks later, when Mr. Curry paid an additional $5,149.31, he said the remainder of the money was available but he wanted “an indication that construction could be started, that the land was purchased, that we are ready to do business.” Appellant said that he would give a receipt for the total amount of $10,000. Then he gave a receipt to Mr. Curry for that amount. Two days later, when Mr. Curry paid an additional $2,950.69, he said that was the remaining money he had and he asked appellant if he was satisfied. (The total amount paid was $9,100.) Appellant replied in the affirmative. Soon thereafter appellant signed articles of incorporation. (The name of the corporation was Mardo, Inc.) Many times thereafter Mr. Curry asked appellant when he would start construction, and if he had the land, and what he was doing with Mr. Curry’s money. Appellant replied that they were unable to get the land, and that they were trying to get started. The last time he had such a conversation with appellant was in October, 1955, just before appellant left town. Mr Curry never received any corporation stock or any dividend. He asked appellant to return the money, but no part of the money has been returned. The lots were never acquired by appellant or Mardo, Inc. The lots were conveyed, through the escrow, to John Kiss. Articles of incorporation and an application for a permit to issue stock were filed, but no permit to issue stock was issued.