Summary
In Curtis v. State, 99 Ga. App. 732 (109 S.E.2d 868), the indictment there being drawn under Code (Ann.) § 97-112, Judge Townsend, speaking for the court in discussing Code § 26-7410, differentiated between the last two mentioned Code sections.
Summary of this case from Cohen v. StateOpinion
37698.
DECIDED JUNE 26, 1959.
Violation of Securities Act. Hall Superior Court. Before Judge Kelley. March 12, 1959.
Archibald A. Farrar, Marvin O'Neal, Jr., for plaintiff in error.
Jeff C. Wayne, Solicitor-General, Sidney O. Smith, Jr., contra.
1. ( a) The purpose of Code (Ann.) § 97-112 (Ga. L. 1957, p. 159) making it unlawful in any transaction involving an offer to sell or buy securities to employ any scheme or device to defraud or engage in any act which would operate as a fraud upon a purchaser or seller is to prevent practices in connection with the purchase or sale of such securities which are carried on with intent to defraud. An indictment alleging such a scheme or transaction is not subject to general demurrer although it fails to allege that the victim was in fact defrauded, since the only criminal intent necessary to be proved is the intent to defraud in the commission of the act or acts denounced by the statute.
( b) The special demurrers dealt with in this section of the opinion are without merit.
( c) The Georgia Securities Act is not so vague, ambiguous or contradictory as to render the indictment in the present case void for any reason alleged.
( d) The Georgia Securities Act makes it a misdemeanor for the seller of securities to engage in connection with any sale or offer of sale thereof in any act, practice, transaction or course of business which operates as a fraud upon the purchaser, or which would operate as such fraud. It also penalizes any device, scheme or artifice to defraud. Under the latter section it is necessary only to prove the false statement and that it was made with an intent to defraud, whether fraud resulted or not. Under the former, where it is alleged that the act, practice or transaction did operate as a fraud, and the indictment sets out the facts on which the State relies to prove this allegation, it is necessary, as against appropriate special demurrer, that the facts alleged sustain the conclusion that the transaction did in fact operate as a fraud against the named purchaser of stock. The indictment here fails to show any loss or detriment to the purchaser as a result of the alleged false statement, and accordingly the allegation that the transaction did operate as a fraud against such purchaser is subject to the special demurrers interposed.
2. That part of the Georgia Securities Act which permits criminal proceedings to be initiated by the Attorney-General is cumulative and permissive, rather than exclusive. That the indictment by the grand jury in this case was returned after an appearance of the solicitor-general before the grand jury, to which the defendants were bound over after warrants were sworn out against them by individual prosecutors, does not render this proceeding subject either to a plea in abatement or a plea in bar.
DECIDED JUNE 26, 1959.
The plaintiff in error Lee Curtis, Jr., was, with six others, jointly indicted in the Superior Court of Hall County for violations of the Georgia Securities Act (Ga. L. 1957, p. 134 et seq.) the indictment being in forty counts. Twenty-five of the counts, varying only as to dates, amounts and the name of the prosecutor, alleged that "at a time when the said accused was offering for sale and selling to ____________ stock in the Greater Georgia Investment Corporation, did employ a device, scheme, and artifice to defraud, and did engage in acts, practices, transactions, and a course of business which operates and would operate as a fraud and deceit upon the purchaser by wilfully, and falsely representing . . . That the Greater Georgia Investment Corporation was organized for school teachers and that it was primarily owned by the school teachers of Georgia; that the officers of said corporation had paid $50,000 for the original issue of stock in the corporation; that Dr. M. D. Collins, State School Superintendent and Claude Purcell, Assistant State School Superintendent [and others] had purchased stock in said corporation; that said [named persons] were advisors to the corporation and were actively endorsing the sale of stock; that the corporation was primarily a teachers' loan company specializing in loans to teachers; that 50% of the said corporation's funds would be utilized in loans to teachers and that 25% of the corporation's funds would be used in other short term investments similar to that which other short term small loan finance companies make; and that 25% of the funds of the corporation would be used to invest in `blue chip' securities; each of said representations being wilfully made and being false, and a device, scheme, artifice to defraud, act, practice, transaction and course of business which operates and did operate as a fraud and deceit as aforesaid" causing the prosecutor to purchase a stated number of shares in the corporation for a stated amount of money.
Fifteen of the counts allege that "at a time when said accused was offering for sale and selling to ............... stock in the Greater Georgia Investment Corporation, the said ................ being a prospective purchaser and customer, did falsely represent that the filing of the registration of said stock of the Greater Georgia Investment Corporation with the Commissioner of Securities of the State of Georgia meant that the said Commissioner had passed on the merits of said stock and had recommended and given approval to such stock and transaction, and that the 5% interest offered by said corporation was guaranteed by the Commissioner of Securities of Georgia, Ben W. Fortson, Jr.," etc.
The plaintiff in error filed general and special demurrers, a plea in abatement and plea in bar, all of which were overruled. The assignment of error is to these judgments.
1. (a) Code (Ann.) § 97-112 (Ga. L. 1957, p. 159), a part of the Georgia Securities Act, provides: "It shall be a fraudulent practice and it shall be unlawful: . . . (b) For any person, in connection with any transaction or transactions in this State which involve any offer to sell or to buy securities or any sale or purchase of securities, including securities exempted under the provisions of Section 97-106 and including any transactions exempted under the provisions of Section 97-107, either directly or indirectly (1) to employ any device, scheme, or artifice to defraud, or (2) to engage in any act, practice, transaction or course of business which operates or would operate as a fraud or deceit upon the purchaser or seller." Code (Ann.) § 97-9901 provides that any person wilfully violating any provision of Chapter 97-1 shall be guilty of a misdemeanor. Comparison of the counts set out in the statement of facts with the statute is sufficient to demonstrate that the indictment in fact "states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may easily be understood by the jury" as required by Code § 27-701. It is contended, however, that fraud is the gravamen of the offense, and that accordingly, as in the cheating and swindling offenses it is necessary to allege and prove that the person alleged to have been defrauded and cheated shall have sustained some pecuniary loss, citing Busby v. State, 120 Ga. 858 (1) ( 48 S.E. 314); Wilson v. State, 84 Ga. App. 703 (6) ( 67 S.E.2d 164); Mobley v. State, 13 Ga. App. 728 (2) ( 79 S.E. 906), and similar cases. As stated in the brief, "Plaintiff in error takes the position in this matter that since the General Assembly in defining fraudulent practices used the term fraud and deceit in Code § 97-112 that the legislative intent was that fraud and deceit meant the same thing under this Code section as under Code § 26-7410, since fraud and deceit can only mean exactly what they say, i.e.: the act of taking something from a person by false representations, wilfully, whereby he injures and damages the person from whom he took something." Code § 26-7410 provides that the use of any deceitful means or artful practice by which one is defrauded and cheated shall be punished as for a misdemeanor. The fraudulent practice involved in this section must by definition be one which resulted in success to the perpetrator, so that it becomes essential to show that the victim was in fact defrauded — that is, suffered a pecuniary loss. Code (Ann.) § 97-112 on the other hand makes it unlawful, and by definition a fraudulent practice, to employ any scheme or device to defraud. The one is retrospective in nature, the other prospective. A scheme to defraud is such a scheme as is initiated by the perpetrator with an intent to defraud another and cause him to suffer a pecuniary loss, but the intent, not the loss, is the subject matter of the crime. Under Code § 26-7410 it must be shown that the victim has been defrauded as a result thereof. Under Code (Ann.) § 97-112 the existence of the scheme, device or artifice, and its use with an intent to defraud, regardless of outcome, constitutes the inhibited act. Under this construction, while a jury might convict the perpetrator of the act whether the victim was in fact defrauded or not on proof that the intent to defraud was present, it could not convict the defendant, whether the victim was defrauded or not, unless there was sufficient evidence to show that the false statements were made with an intent to defraud the victim and cause him to suffer pecuniary loss. This Code section differs from the old Code § 97-9901 which made a mere proof of a false statement prima facie proof of the fact that it was knowingly so made. It is not necessary in an indictment under Code 97-112 to allege that the victim was in fact defrauded. The general demurrers were properly overruled.
(b) The various counts are not subject to demurrer on the ground of ambiguity, indefiniteness, or that they constitute no more than conclusions. The indictment refers to more than one defendant, but, as to each, alleges that the said accused did make the statements therein set out. Such statements would be sufficient, if untrue and made with intent to defraud, to constitute a scheme and device to sell the securities in question on the part of each defendant, but whether any particular defendant made the statement or was otherwise so connected with the statement as to constitute him a principal in regard thereto is a matter for proof on the trial of the case. The trial court did not err in overruling demurrers Nos. 5, 8, 9, 10 and 11 to the various counts of the indictment.
(c) It is further contended by the third ground of demurrer that the criminal provisions of the Georgia Securities Act codified as Code (Ann.) §§ 97-112, 97-113 and 97-9901 are vague, ambiguous, and insufficient in law to be the basis of a criminal prosecution. As stated above, Code (Ann.) § 97-112 is the one under which this indictment was drawn, and it provides that the acts set out therein shall be unlawful. Code (Ann.) § 97-9901 provides in part: "Any person who shall wilfully violate any provision of Chapter 97-1, . . . or who shall engage in any act, practice or transaction declared by any provision of said Chapter to be unlawful, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not more than $500 for first offense and shall be punished by a fine of not more than $5,000, or by imprisonment for not more than one year, or by both such fine and imprisonment for subsequent offenses." As to this section it is contended that it is wholly void because it cannot be determined whether a misdemeanor or felony punishment is intended for offenses after and subsequent to the first offense; that it does not state the place of imprisonment, and that the maximum fine of $5,000 is greater than that assessed in misdemeanor cases. Under Code (Ann.) § 27-2506 misdemeanors are punishable by a fine not to exceed $1,000 unless otherwise provided. Code (Ann.) § 97-9901 specifically provides that a violation of the acts pronounced by Code (Ann.) § 97-112 to be unlawful shall be a misdemeanor, and provides no punishment inconsistent with misdemeanor punishment. Since no violation of Code (Ann.) §§ 97-112 or 97-113 is here involved, and since Code (Ann.) § 97-9901 is not subject to the objection urged here, ground 3 of the demurrer is without merit.
(d) Special demurrers 4, 6 and 7 are, however, well taken. These demurrers attack each count of the indictment on the ground that "same does not show how the named prosecutor was defrauded" and "does not show fraud upon the said prosecutor," and that no pecuniary loss is shown. While, as stated before, the statute penalizes a false statement made with intent to defraud, whether loss is sustained or not, it also provides for punishment of a scheme or artifice which "operates or would operate" as a fraud, and thus subjects the offender to punishment (a) in the event the scheme to defraud actually operates as a fraud, or (b) would, if successfully consummated according to the intentions of the perpetrator, be a fraud on the purchaser, even though it did not in fact so result. As against special demurrer, the indictment here is defective for the reason that it does not stop after alleging that the defendant was guilty of a described scheme and device to defraud and which would operate as a fraud upon the prosecutor; it further alleges that the scheme did operate as a fraud upon the person who purchased the stocks. It is essential that an indictment which alleges that another has been defrauded also allege that such person has suffered a pecuniary loss. Hadden v. State, 73 Ga. App. 23 ( 35 S.E.2d 518); Busby v. State, 120 Ga. 858, supra. Where the question is raised by timely written special demurrer, every defendant in a criminal case has the right to be tried upon an indictment perfect in form and substance. Youmans v. State, 51 Ga. App. 373 ( 180 S.E. 495); Robinson v. State, 93 Ga. App. 203 (1) ( 91 S.E.2d 52); Kyler v. State, 94 Ga. App. 321 (3) ( 94 S.E.2d 429). A statement in an indictment or accusation which, as against demurrer, is a mere conclusion is subject to demurrer because no facts supporting such conclusion are alleged. Smith v. State, 58 Ga. App. 478 (1) ( 199 S.E. 62); Paschal v. State, 16 Ga. App. 155, 158 ( 84 S.E. 725); Roughlin v. State, 17 Ga. App. 205 (1) ( 86 S.E. 452). Accordingly, as to that part of the indictment which alleges that the acts of the defendant did operate as a fraud upon the named prosecutor, it is subject to demurrer for the reason that no pecuniary loss is alleged, but on the contrary it is affirmatively stated in the indictment, as to each count, that the prosecutor received exactly what he purchased — a given number of shares of stock in a corporation — and it does not appear that the shares were not worth the amount of money charged and collected, or that the purchasers suffered any loss whatever. Under the wording of this indictment, special demurrers 4, 6 and 7 were erroneously overruled.
2. The pleas in abatement and in bar raise for consideration the same question, and that is whether these criminal proceedings have been properly initiated, in regard to which there is a stipulation in the record as follows: "It is hereby stipulated by the Solicitor-General of Hall County that he had not received instructions from the Attorney-General of the State of Georgia to institute criminal proceedings and that the indictment was based upon the findings of the grand jury of Hall County upon warrants issued by certain named prosecutors as individuals from Hall County." The plaintiff in error contends that under Code (Ann.) § 97-113 the Attorney-General and not the solicitor-general must initiate criminal proceedings looking toward the punishment for a violation of the Georgia Securities Act. Code (Ann.) § 97-113 (3) provides that the Commissioner may at his discretion "(3) transmit such evidence as may be available concerning such act, practice or transaction to the Attorney-General, who may, in his discretion, institute the necessary criminal proceedings." Code (Ann.) § 97-9901 provides in part: "Nothing in this Chapter or Chapter 97-1 shall limit any statutory or common law right of the State to punish any person for any provision of any law." Code § 27-701 provides for the initiation of criminal proceedings by indictment by the grant jury. In such proceedings, the solicitor-general is ordinarily the prosecuting officer for the State. Code § 27-1407. The use of the solicitor as such prosecutor is undoubtedly a right of the State within the meaning of Code (Ann.) § 97-9901. Code (Ann.) § 97-113 is permissive in character and provides for a manner of the initiating of criminal proceedings through the Commissioner and Attorney-General, but it is by no means intended to be exclusive, and the fact that the solicitor rather than the Attorney-General appeared before the grand jury, or that warrants were sworn out in the first instance and prior to the grand jury proceedings by affidavit of the individual prosecutors, in no way renders the indictment illegal. Accordingly, it was not error to overrule the plea in abatement and the plea in bar.
The trial court erred in overruling special demurrers 4, 6 and 7 to the indictment.
Judgment reversed. Gardner, P. J., and Carlisle, J., concur.