403 F2d 692 Phillips v. Alabama Credit Corporation

403 F.2d 692

James M. PHILLIPS, Appellant,
ALABAMA CREDIT CORPORATION d/b/a Fidelity Securities
Corporation, Appellee.

No. 25331.

United States Court of Appeals Fifth Circuit.

Nov. 25, 1968.

Thomas M. Haas, Mobile, Ala., for appellant.

Willis C. Darby, Jr., Kilborn, Darby & Kilborn, Mobile, Ala., for appellee.

Before JOHN R BROWN, Chief Judge, and RIVES and McENTEE,* Circuit judges.


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Phillips appeals from a directed verdict in favor of Alabama Credit Corp. on three counts of securities fraud in violation of 12(2), 17 of the Securities Act of 1933, 15 U.S.C.A. 77l(2), 77q, and the Alabama misrepresentation statute, 7 Ala.Code 108 (1958).1


Phillips offered no evidence to contradict the overwhelming proof that he committed the fraudulent acts. The only evidence offered by Phillips was reputation testimony from rriends and associates. It is clear that fraudulent intent need not be proved and that testimony of the defendant's reputation in the community is not enough to refute overwhelming proof of fraud. Wilko v. Swan, 1953, 346 U.S. 427, 431, 74 S.Ct. 182, 98 L.Ed. 168, 173; S.E.C. v. Capital Gaines Research Bureau, 1963, 375 U.S. 180, 192, 195, 84 S.Ct. 275, 283-284, 11 L.Ed.2d 237, 246, 248; Mutual Sav. Life Ins. Co. v. Osborne, 1945, 32 Ala.App. 220, 23 So.2d 864, cert. denied, 247 Ala. 252, 23 So.2d 867.




From the First Circuit, sitting by designation


This is a companion case to Phillips v. Alabama Credit Corp., 403 F.2d 693, decided this day, which involved violations of these same statutes