Per Curiam.
¶1
The judgment under review heroin should be affirmed, for the reasons expressed in the opinion delivered by Mr. Justice Lloyd in the Supreme Court.
¶2
For affirmance
— The Chancellor, Case, Bobine, Heheb, Peeskie, Heteield, Deae, Wells, WolesKeil Raeeeety, JJ. 10.
¶3
For reversal
— None.
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Case posture Posture On error to the Supreme Court, in which Mr. Justice Lloyd filed the following opinion:
Plaintiff in error was convicted of violating chapter 318 of the laws of 1913, which provides in part that:
`Any person, firm, corporation, * * * who with intent to sell * * * securities * * * makes, publishes, disseminates, circulates or places before the public * * * in the form of a circular, an advertisement of any sort regarding securities so offered to the public, which advertisement contains any assertation, representation or statement of fact which is untrue, deceptive or misleading, shall be guilty of a misdemeanor.'
The first point argued is that the indictment is fatally defective in failing to allege that the documents issued were known to contain representations of fact which were untrue, deceptive and misleading.
The question is one of interpretation. The act does not by its terms make guilty knowledge a necessary element in the commission of the offense, and it is contended that, while the legislature has power to declare the improper conduct of those subject to its jurisdiction to be criminal and subject to judicial penalties, unless the contrary legislative intent clearly appears the law will not be so construed as to make the act criminal in the absence of a criminal intent.
The plaintiff in error was president of the New Jersey Bond and Mortgage Corporation and as such was charged with preparing for public use and advertising purposes a circular in which, according to the state's proofs, he grossly misrepresented the assets of the corporation; the circular being issued for the purpose of the sale of the bonds therein offered as an investment.
There are cases in abundance holding that a forbidden act is completed in a legal sense when the act is done, whether with or without intent or guilty knowledge. There are other cases holding a legislative intent to make guilty purpose essential. The dividing line is aptly illustrated in such cases as Halsey v. State, 41 N.J.L. 552 , and State v. Kuehnle, 85 Id. 220 , in the first of which the mere commission of the act was held to be criminal, and in the latter as requiring a corrupt motive.
We think the statute in the present case comes under the former classification. In the Halsey case the offense dealt with was that of exceeding appropriations by a board of chosen freeholders. Here it was the issuance of a circular containing assertions of fact respecting the company's financial standing. The facts stated in the circular were intended to be relied upon by the public as a basis of investment. The plaintiff in error was president of the company and these facts were or should have been within his knowledge in preparing and issuing the circular. The outside public to whom the bonds were to be offered could in the nature of things have no knowledge except that thus conveyed to them. It is to be noted that while intention to sell the securities is incorporated in the act as a necessary factor, there is no such limitation of responsibility for the information disseminated with respect to the knowledge or want of knowledge. The statute is intended to protect the public against false and misleading information regarding securities offered for sale. Its purpose would be frustrated if those issuing false information could shield themselves behind the plea that they did not know it to be untrue. It was peculiarly the business of those issuing the circular to know the facts before offering the securities. It is our conclusion that the legislative purpose was to hold responsible those who put out information of such character to the substantial truth of the statements contained therein.
It is urged that the statute forbids the publication by circular or otherwise of false information respecting securities offered to the public, and that there is no proof that any bonds were ever offered to the public. Assuming that this is
a correct interpretation of the statute, there was proof that the circular was at least in one instance forwarded by mail to a prospective purchaser, and the circular was in itself an offer of the bonds to the public. The issue is described in detail and preceding such description occurs the following:
`Price par and interest subscriptions received subject to allotment.' It is impossible to read this language without recognizing in it an offer of the bonds themselves for public subscription, and therefore presenting evidence to meet this claimed interpretation of the act.
Other grounds of appeal and causes for reversal are the alleged improper conduct of the prosecutor in the cross-examination of the defendant, in the examination of the witness Lee called by the state, as well as in statements and comments during the course of the trial, and the refusal of the judge to withdraw a juror.
While some of the remarks of the prosecutor are subject to criticism and not to be commended in orderly judicial proceedings, we think they were not sufficient to justify our holding that the court below abused its discretion in refusing to withdraw a juror as was requested by defendant's counsel.
As to the examination of Mrs. Lee, this lady's testimony was later struck out and the jury directed to disregard it.
The application to withdraw the plea of not guilty was denied. It was addressed to the discretion of the court and in this ruling we find no abuse of discretion.
The oral request for instruction at the conclusion of the charge was properly denied as neither in form nor time. To require the court to submit such an instruction at that stage of the case would give it an undue prominence and weight with the jury which it was not entitled to have, and the request properly came within the ban of the requirement that requests for instruction must be presented not only in writing but timely in order that they may receive due and considered examination.
There is nothing in the record of the cause which requires further discussion and the judgment below is affirmed, with costs. Source: CourtListener
