State v. Fraser

209 P. 467, 105 Or. 589, 1922 Ore. LEXIS 88

• Court: Oregon Supreme Court
• Decided: September 26, 1922
• Status: Published

Opinion

McCOURT, J.

This appeal is prosecuted by the defendant from a judgment of conviction upon an indictment charging defendant with a violation of the statute known as the Blue Sky Law (Sections 6838-6854, Or. L.).

The indictment charged that defendant was president of a corporation organized under the laws of the State of Washington, known, as Tour Transportation Lines, Inc.; that on the eleventh day of November, 1920, the corporation was doing business in Multnomah County, Oregon, and was then and there offering, and did then, and there offer, for sale to the public its own securities, to wit: certain of the capital stock of the corporation, which stock was owned by it, thereby constituting the corporation a dealer in said stock; that the corporation, being- a dealer in said stock, and as such dealer, and the defendant, for and in behalf of the corporation, acting jointly and together, did, on the date above set forth, offer for sale to one George Breckler 300 shares of the capital stock of the corporation, all of which stock was owned by the corporation and was to be thereafter issued; and that there had not been filed with the Corporation Commissioner at or prior to offering the stock for sale, as aforesaid, the information and data (specifically set forth in the indictment) required by Section 6839, Or. L.

Defendant interposed a demurrer to the indictment, one of the grounds of which was that the offense charged in the indictment could be committed only by the corporation, and therefore the indictment failed to state a crime against the defendant.

The statute provides that “no dealer shall in this state offer for sale * * any corporate securities * * unless prior thereto there shall have been filed with the corporation commissioner * * ” specified documents, data and information, showing the worth of the corporation, the character and purpose of the securities it is proposed to issue and sell, and the rep-reservations that will be made to effect sales: Section 6839, Or. L.

There are two classes of dealers included in and defined by the statute (Section 6838, Or. L.) :

1. # * every person, partnership, corporation, or association which is now engaged, or which shall hereafter engage, in the selling to others at a profit or on commission, * * any stocks, bonds, notes, contracts or other securities of' whatsoever kind or character: * * ”

(2) “ * # any partnership, domestic corporation, foreign corporation doing business within this state, or association which shall hereafter offer its own securities for sale to the public * * .”

In support of his contention that the indictment fails to charge him with a crime, defendant points out that the facts set forth in the indictment did not constitute defendant a dealer within either of the above definitions, and further that the indictment did not charge that the defendant acted in the capacity of a dealer in offering the stock for sale.

The allegations of the indictment clearly described the corporation, of which defendant was president, as a dealer of the second class defined by the statute, and also charged noncompliance with Section 6839, Or. L., and that the corporation, as such dealer, and the defendant for and in behalf of the corporation, acting jointly and together, offered for sale certain of the capital stock owned by it, and thereafter to be issued.

Clearly the indictment sufficiently charges the corporation with a violation of the statute; in addition thereto it was alleged that the defendant actively participated in the commission of an act that the corporation was prohibited from doing in its alleged character of a dealer.

The criminal liability fixed by statute purports to include only the corporation, which, without compliance with the statute, offers its own securities for sale to the public; no reference is contained in the statute to officers, agents or others acting for, or in behalf of, or jointly with, the corporation in making such offers of sale.

A corporation is capable of committing the crime defined and made punishable by the statute: State v. Ross, 55 Or. 450, 466 (104 Pac. 596, 42 L. R. A. (N. S.) 601); 14A C. J. 871, 872; 7 R. C. L. 764, 768.

Sections 1458 and 2370, Or. L., abolish the common-law distinctions between principals and accessories before the fact in felonies, and provide that all persons concerned in the commission of a crime, whether they directly commit the act constituting the crime, or aid and abet in its commission, though not present, must be indicted, tried and punished as principals.

By virtue of the last-mentioned sections of the statute, a person who cannot alone commit a crime defined by statute, may by aiding and abetting a person within the class against which the statute is directed, render himself criminally liable and subject to the punishment prescribed by the statute, even though such penal provisions do not, in express terms, extend to persons not within the class of those by whom the crime may be directly committed: State v. Ross, 55 Or. 450, 465, 466 (104 Pac. 596, 106 Pac. 1022, 42 L. R. A. (N. S.) 601); State v. Case, 61 Or. 265 (122 Pac. 304); Quillin v. State, 79 Tex. Or. Rep. 497 (187 S. W. 199, 5 A. L. R. 73 and annotation, p. 782); State v. Elliott, 61 Kan. 518 (59 Pac. 1049); People v. McKane, 143 N. Y. 455 (38 N. E. 950); United States v. Van Schaick, 134 Fed. 592; State v. Rowe, 104 Iowa, 323 (73 N. W. 833).

Defendant demurred to the indictment upon the further ground that it does not substantially conform to the requirements of criminal pleadings, as prescribed by the Code, in that the indictment charges the defendant as an accessory before the fact, rather than as a principal. Defendant contends that Section 1458, Or. L., wherein it is declared that “all persons concerned in the commission of a felony, * * must * * be indicted, tried, and punished as principals, as in the case of a misdemeanor,” establishes a rule of criminal pleading that requires the accused in all cases to be charged directly as a principal, ,and in support of thát contention, defendant cites: State v. Kirk, 10 Or. 505; State v. Moran, 15 Or. 262, 275 (14 Pac. 419); State v. Steeves, 29 Or. 85 (43 Pac. 947); State v. Branton, 33 Or. 533 (56 Pac. 267).

The eases cited do not support defendant’s contention. The decisions in those cases hold that an indictment is sufficient which charges a defendant directly with the commission of acts constituting a felony, though such defendant in fact aided and abetted another in the commission of the offense charged. The sufficiency of an indictment that sets out the transaction according to its outward form is not discussed or passed upon in any of the cited cases.

Where a person is proceeded against for aiding and abetting another in the commission of a crime, the provisions of Sections 1458 and 2370, Or. L., render it admissible, at the election of the pleader, to charge the accused directly as a principal, or to set out the facts constituting the offense as nearly as may be, precisely as they occurred: Bishop’s New Criminal Procedure, Yol. 1, §§ 332-335; Bishop’s New Criminal Law, Yol. 1, §§ 682, 685; State v. Glein, 17 Mont. 17 (41 Pac. 998, 31 L. R. A. 294); People v. Rozelle, 78 (20 Pac. 36); Territory v. Guthrie, 2 Idaho, 432, 435 (17 Pac. 39).

The statutes of Montana are substantially the same as Sections 1458 and 2370, Or. L. In the case of State v. Glein, supra, the court said:

“ * * "We see no objection to the form of an information charging a person as an accessory rather than as a principal. To so charge is to the advantage of a defendant, because it notifies him of the attitude which the state will assume when the case is brought to trial, by setting out the facts constituting the offense with greater certainty than is requisite where an accessory is indicted as a principal.”

The California statute is in effect the same as the Oregon statute. In the case of People v. Rozelle, supra, the court, following earlier decisions to the same effect, said:

it * # one common law, would have been guilty a,s an accessory is, under the statute, guilty as a principal. This being the case, an information which states facts sufficient to constitute a defendant an accessory at common law shows him to be guilty as a principal under the statute. Therefore, to allege such facts as would have been sufficient to show his guilt as an accessory, at common law, is to charge him ‘as a principal’ under the statute.”

It follows, that the court did not commit error in overruling defendant’s demurrer to the indictment or in denying his motion for a directed verdict, which motion was based upon the grounds set forth in the demurrer.

The state called a number of witnesses, each of whom testified in substance that he had gone to the office of the corporation, in response to an advertisement in the “Oregonian,” wherein it was stated that by an investment of $500 in the stock of Tour Transportation Lines, Inc., the purchaser would secure a position with, the concern at $150 per month; that he purchased stock in the corporation, and that some o'f the negotiations leading up to such purchase were had with the defendant.

This evidence was offered by the state to support the material allegation of the indictment to the effect that the corporation, at the time of the offense, was offering certain of its capital stock for sale to the public, and thereby became a dealer within the meaning of the statute.

The defendant offered to testify and to show by the books of the corporation, and by an auditor who had examined the books, that none of the sales of stock testified to by witnesses for the state were made for profit or on commission, and that defendant received no profit or commission on any of the sales made by him or by the corporation. The court, upon objections by the state, refused to admit the proffered evidence, which action of the court defendant assigns as error.

As above stated, the evidence of actual sales was introduced to prove that the corporation was offering its stock for sale to the public. The evidence was competent and material for that purpose. Evidence that such sales were made without profit to defendant would have no tendency to prove that the general offer of sale to which the purchasers responded was not made to the public, and the exclusion of that evidence was not error.

Defendant further complains that “the court erred in instructing the jury relative to their finding of sales for profit or on commission. ’ ’ In its instructions, the court for the information of the jury, without explanation defined the word “dealer” by reading Section 6838, Or. L. Thereafter the court attempted to define the word “profit,” and in that connection adopted and gave to the -jury the definition suggested by counsel for defendant. Defendant cannot complain that the court gave an instruction requested or suggested by defendant. Besides, the error assigned is not available to defendant as no exception was taken or allowed to the instruction so given.

Moreover, as before stated, it was not material whether any profit had been made upon actual sales, either by defendant or by the corporation, and any instruction intimating that the element of profit was involved was favorable to the defendant, rather than to his prejudice.

We find no prejudicial error occurring upon the trial, and accordingly the judgment of the Circuit Court is affirmed. Affirmed. Rehearing Denied.

Brown, J., took no part in the consideration of this case.