People v. Rankin , 160 Cal. App. 2d 93 ( 1958 )

ASHBURN, J.

Appellants were convicted of 10 counts of violation of section 26104, subdivision (a), Corporations Code, through the sale of undivided interests and issuance of certificates of interest in a mining title and lease without first securing a permit from the Commissioner of Corporations. Each appeals from the judgment and an order denying his motion for new trial.

Appellants’ main argument is that there could be no violation of the statute because they merely induced the complaining witnesses to join with them in locating mining claims on public lands and collected $250 for each one-eighth fractional interest in consideration of their services in perfecting the filing, recording, monumenting and other acts necessary to complete the claim through which they and the alleged victims acquired title as tenants in common; that their furnishing co-owners with copies of the location notices was not the issuance of a certificate of interest in a mining title or lease within the purview of section 25008, Corporations Code. As will appear, we find that the evidence justifies this factual contention in certain instances but not in others. Hence it first must be determined whether such a situation does violate the law.

Section 25008, Corporations Code, defines “security” as including “any certificate of interest in an oil, gas, or mining title or lease; ... or beneficial interest in title to property, profits, or earnings.” Section 26104, subdivision (a), declares every person guilty of a felony who ‘ ‘ [k] nowingly 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, in nonconformity with a permit of the commissioner then in effect authorizing such issue, ...”

It is not the purpose of the law to stigmatize or to have the Commissioner of Corporations regulate every co-tenancy transaction. For instance, it specifically exempts “ [a]ny partnership interest in a general partnership, or in a limited partnership . . . except partnership interests when offered to the public,” and “ [a]ny bona fide joint adventure interest, except . . . when offered to the public.” (Corp. Code, § 25100, subds. (m) and (n).) “The Corporate Securities Law does not contain an all-inclusive formula by which to test the facts in every ease. And the courts have refrained from attempting to formulate such a test. Whether a particular instrument is to be considered a security within the meaning of the statute is a question to be determined in each case. In arriving at a determination the courts have been mindful that the general purpose of the law is to protect the public against the imposition of unsubstantial, unlawful and fraudulent stock and investment schemes and the securities based thereon. . . . An agreement to render personal services for compensation cannot be considered a security, even though the sale of a beneficial interest in such an agreement may come within the statute. . . . [N] either numbers of participants nor possible fraud in its creation may transmute the instrument into a security which in legal effect it is not. If fraud be involved redress must be found elsewhere than in the penal provisions of the Corporate Securities Law.” (People v. Syde, 37 Cal.2d 765, 768, 769 [235 P.2d 601].) “It has been the consistent policy of the state, as reflected in the various definitions of ‘security,’ to subject to regulation all schemes for investment, regardless of the forms of procedure employed, which are designed to lead investors into enterprises where the earnings and profits of business or speculative ventures must come through the management, control, and operations of others and which, regardless of form, have the characteristics of operations by corporations, trusts or similar business structures.” (Moore v. Stella, 52 Cal.App.2d 766, 778 [127 P.2d 300].)

It is settled law that any deed, certificate of interest or like instrument of conveyance or assignment falls within the act only when it appears directly or inferentially that the buyer contemplates receipt of profits from activities of other persons, such as carrying on a business, drilling an oil well, or sinking and operating a mine; the mere conveyance to him of a fractional interest in a piece of land or other type of property is not subject to the statute if the buyer must look only to the thing bought or his own efforts to produce a profit to himself. The court, speaking through Mr. Justice Shinn, said in Moore v. Stella, supra, 52 Cal.App.2d 766, 772: “A deed to mineral rights may or may not be a security. The determination of its true character requires an inquiry which goes beyond the mere name of the instrument or the nature of the interest conveyed. In deciding whether a given instrument is a security the courts have invariably looked through mere form to substance. ’ ’ Again, at page 777: “In holding that the deeds to mineral rights issued by the defendants without a permit were invalid, we of course do not hold that every conveyance of a fractional interest in prospective oil land or of a segregated parcel thereof is a security or, more specifically, that it is a certificate of interest in an oil title.” Austin v. Hallmark Oil Co., 21 Cal.2d 718, 727 [134 P.2d 777]: “If the transaction is one in which the assignee is merely an investor who for a consideration is given the right to share in the profits or proceeds of an enterprise to be conducted by others, the instrument representing such interest is a security. "Where, however, as in the present case, the assignee is to share in the conduct of the enterprise, the instrument representing an assignment of a fractional interest in the production of oil is not a security within the act. ’ ’ (See also People v. Davenport, 13 Cal.2d 681, 685 [91 P.2d 892]; Domestic & Foreign Pet. Co., Ltd. v. Long, 4 Cal.2d 547, 555 [51 P.2d 73].)

As a matter of general law the location of a mining claim upon public land vests in the locator or locators an estate which is the equivalent of a fee with respect to all persons other than the government. (Watterson v. Cruse, 179 Cal. 379, 382 [176 P. 870]; 33 Cal.Jur.2d § 83, p. 133.) When made by or on behalf of a number of locators it amounts to a single claim in which each owns an undivided interest. (Miller v. Chrisman, 140 Cal. 440, 450 [73 P. 1083, 74 P. 444, 98 Am.St.Rep. 63].) Such a joint location may be made by one of the participants on behalf of all. (Moore v. Hamerstag, 109 Cal. 122, 124 [41 P. 805]; Morton v. Solambo C.M. Co., 26 Cal. 527, 528, 534; 33 Cal.Jur.2d § 50, p. 94.) Such a location vests the specified interest in each named locator even though he did not authorize or know of it, provided he elects to ratify the same. (Moore v. Hamerstag, supra, p. 124; Morton v. Solambo C.M. Co., supra, p. 534; Thompson v. Spray, 72 Cal. 528, 530, 532 [14 P. 182].)

The evidence as to some of the counts in this case (I-IV) shows that defendants invited the complaining witnesses to join them in locating claims; that these persons paid their money upon that understanding; although they did not sign location notices each received at a later date a copy of such a notice or of a certificate of location bearing in type at the end of the document his or her name as a locator, followed by a fraction such as one-eighth or one-sixteenth. In those instances there was no representation before the transaction was completed that the claim was already in existence or owned by one of defendants, or that they were offering for sale an interest in an existing asset. The alleged victims so testified.¹ Early in the trial the following colloquy occurred between court and prosecutor: “The Court: Well, it is the People’s position that the testimony would be different on some other counts, then, than that ultimately given by the doctor. Mr. Arterberry: I think they are all similar; there’s a little variation, but they are all very similar—I will say that. The Court : Well, do you agree with me ? I notice the doctor in his initial testimony said that he was buying an interest in a lease, as he started out. Mr. Arterberry : He was buying an interest in this group of claims that were going to be located; that is what he said.” Clearly, there was no sale of an interest in a mining title in the foregoing instances, and the furnishing of a copy of the mining location could not be a certificate of interest within the purview of the statute. It did not represent any interest sold or offered for sale by defendants. It amounted only to evidence of the title which vested in the locator through the location made for him in his name. The arrangement that defendants would make the location and include the other party’s name as one of the locators was nothing more than a contract for services which, as pointed out in People v. Syde, supra, 37 Cal.2d 765, 768, cannot be considered a security within the terms of the act. To hold that the copy of a location notice furnished to the alleged victim was a certificate of interest within the meaning of the statute would exalt literal interpretation over the substance and spirit of the law. This is forbidden by People v. Davenport, supra, 13 Cal.2d 681, 685, and a legion of other cases. (See People v. Villegas, 110 Cal.App.2d 354, 357-358 [242 P.2d 657]; In re Clarke, 149 Cal.App.2d 802, 805 [309 P.2d 142]; 23 Cal.Jur. § 113, p. 734.) “The letter killeth, but the spirit giveth life.”

Other transactions (counts V-X) cannot withstand the court’s peering through form to substance. By that is meant that the evidence is in such shape that the judge was warranted in drawing inferences adverse to the defendants upon all the essential elements of the crime charged. Their failure to testify emphasizes the weight of such inferences. (People v. Ashley, 42 Cal.2d 246, 268 [267 P.2d 271].) The transactions with Marion R. Carter (counts IX and X) are illustrative. She turned over $1,750 to defendants at the rate of $250 for each one-eighth interest in a uranium claim. She testified at one place that defendants did not say they owned the claims, but she thought Rankin did own them, just assumed it; she did not recall if he actually said so; at another time she testified he said “he had them located,” “said he has them,” “we have this and it is so good.” She also said that Rankin sold the claims to her and Mrs. Jennie Smith and stated that the money was to be used for core drilling and developing the property; that they had turned down an offer of $4,000 plus a royalty for each claim; had had an offer to take over the claims for stock of a company. Rankin also said that every time he sold a claim he gave Garvin $50.

Mrs. Carter and Mrs. Jennie M. Smith (counts VII and VIII) were together when some of their purchases were made. Mrs. Smith testified that Garvin had telephoned her that Rankin had uranium claims he wanted to sell and that Garvin brought him to Mrs. Carter’s home. There he said that Rankin had uranium claims to sell and the latter asserted they were worth buying. It was also said that Rankin was to work the claims and they (Mrs. Carter and Mrs. Smith) were to get dividends. Mrs. Smith also testified she did' not know the difference between a claim already filed and one to be filed, but she thought the claims were already in existence. She also gave considerable testimony supporting defendants’ claim that the two ladies were to join in locating claims and that it was not represented that any claims defendants presented to them were already in existence or being sold. Of course the trial judge had the right and duty of accepting and rejecting such parts of conflicting statements of any witness or witnesses as he deemed respectively credible or unbelievable. “The trier of fact may believe and accept a portion of the testimony of a witness and disbelieve the remainder. On appeal that portion which supports the judgment must be accepted, not that portion which would defeat, or tend to defeat, the judgment. (Citations.) A judgment cannot be set aside on appeal unless it clearly appears that on no hypothesis whatever is there sufficient substantial evidence to sustain it. (Citation.) ” (People v. Thomas, 103 Cal.App.2d 669, 672 [229 P.2d 836].)

Generally speaking, these same observations apply to the testimony of Mrs. Emma L. Miller concerning counts V and VI.

The court well may have concluded that the defendants were offering to sell to these women interests in existing mining claims. If they did so offer it is immaterial whether they owned the claims or whether the same actually were in existence. It is also fairly inferable that the buyers were to reap profits from the activities of defendants in developing and working a mine. Hence it would follow that the sale itself would violate the act. The testimony of Mrs. Smith, Mrs. Carter, Mrs. Miller, and the accompanying exhibits disclose that defendants east each sale in the form of an agreement to make joint location of a new mining claim. But the trial judge was justified in piercing this form in order to view the realities and in concluding that these were sales of undivided interests in mining titles and violative of the act, as explained in such cases as Moore, v. Stella, supra, 52 Cal.App.2d 766; Ogier v. Pacific Oil & Gas Corp., 132 Cal.App.2d 496 [282 P.2d 574]; People v. Shafer, 130 Cal.App. 74 [19 P.2d 861]; McFaul v. Deck, 30 Cal.App.2d 424 [86 P.2d 890]; Domestic & Foreign Pet. Co., Ltd. v. Long, supra, 4 Cal.2d 547; and People v. Sidwell, 27 Cal.2d 121 [162 P.2d 913], In these circumstances the furnishing to each buyer of a copy of the mining location showing her to be a locator of an undivided interest constituted the issuance of a participation certificate in a mining title.

The transactions covered by counts I to IV, inclusive, of the information fall within the class first discussed herein. The evidence does not warrant a finding that there was a sale or the issuance of a participation certificate. The fact that defendants did not testify does not supply affirmative evidence against themselves; it only serves to fortify legitimate inferences flowing from evidence actually in the record (People v. Ashley, supra, 42 Cal.2d 246, 268); nor does the fact that transactions involved in counts V to X, inclusive, amounted to sales followed by issuance of participation certificates fill the hiatus in the proof on counts I to IV, inclusive. The evidence upon the former counts would be confirmative of adverse evidence upon the latter, but it cannot fill the gap therein. It might furnish one or more elements of the alleged crime but could not supply the entire structure.

The judgment and order denying new trial upon counts I to IV, inclusive, are reversed as to each defendant. The judgment and order denying new trial upon counts V to X, inclusive, are affirmed as to each defendant.

Fox, P. J., concurred.

1 In the ease of Myrtle R. McLean (count I), the $250 was paid on August 4, 1954, and at that time she was given a location notice, typed in her presence, which acknowledged payment for her interest in Lucky Strike No. 2, and bore date August 9, 1954, as that of location; later she received from Rankin, through the mail, another copy of a notice of location which stated August 4, 1954 as the date of same, showed recordation on September 28, 1954, and was certified by a notary under date of November 29, 1954. As the witness testified that Rankin did not represent he was selling an interest in any mining claims but said he would fill in her name and the names of others as locators, and she understood she was to be one of the original locators, that she was acquiring an interest in a claim to be filed in the future, the placing of August 4, 1954,^in the recorded notice (bearing her name as a locator) as the date of location does not amount to substantial evidence that the claim had been located by Rankin before his first conversation with her, or that he was purporting to sell an interest in an existing claim. (See as to what constitutes substantial evidence, Guardianship of Sturges, 30 Cal.App.2d 477, 497 [86 P.2d 905]; Citron v. Fields, 30 Cal.App.2d 51, 63 [85 P.2d 534]; Fewel & Dawes, Inc. v. Pratt, 17 Cal.2d 85, 89 [109 P.2d 650]; Hall v. Osell, 102 Cal.App.2d 849, 853 [228 P.2d 293]; People v. Casillas, 60 Cal.App.2d 785, 793-794 [141 P.2d 768]; People v. Stephens, 117 Cal.App.2d 653, 659 [256 P.2d 1033].)

It was stipulated that the testimony of Emma P. Smith (count III) would be substantially the same as that of Miss McLean. Her money was paid to Bankin on August 16, 1954, and the notices given her bore the same dates as in the instance of Miss McLean.

Like stipulation was made as to the testimony of Lena A. Moulton (count IV), who paid her money on August 11, 1954, and later received through the mail a notice of location dated July 30, 1954, pertaining to Lucky Strike No. 1.

In the case of Dr. John B. Buckingham (count II), the transaction was had on October 6, 1954, and he later received copies of certificates of location showing locations made on December 12, 1954, with him named as one of the locators. He testified that he was one of the original locators and that this was understood at the time he paid over the money on October 6.