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COMMONWEALTH v. GABRIEL (06/15/61)

June 15, 1961

COMMONWEALTH
v.
GABRIEL, APPELLANT.



Appeal, No. 88, Oct. T., 1961, from judgment of Court of Quarter Sessions of Delaware County, March T., 1960, No. 452, in case of Commonwealth of Pennsylvania v. Herman William Gabriel. Judgment arrested and defendant discharged.

COUNSEL

Samuel Lichtenfeld, for appellant.

Frederic G. Antoun, Deputy Attorney General, with him Anne X. Alpern, Attorney General, for Commonwealth, appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Watkins

[ 195 Pa. Super. Page 412]

OPINION BY WATKINS, J.

Herman William Gabriel, the defendant-appellant, has appealed from the judgment and sentence of the Court of Quarter Sessions of Delaware County, after conviction of violating the Pennsylvania Securities Act of 1941, P.L. 317, 1, 70 PS 52; and from the denial by the court below of his motions in arrest of judgment and for a new trial.

He had also been subject to indictments for larceny by bailee, fraudulent conversion, cheating by false pretenses and conspiracy. The court below granted his motion in arrest of judgment as to larceny by bailee and, during the trial, directed verdicts in the other cases. He was sentenced to pay a fine of $500 and to undergo imprisonment for six months.

He was convicted of violation of the Pennsylvania Securities Act, supra, the pertinent part of which reads

[ 195 Pa. Super. Page 413]

    as follows: "Any dealer or salesman who shall in this State, without being registered hereunder, either (a) sell any security ... shall be guilty of a misdemeanor, ..."

The act defines "security" as follows: "(a) 'Security.' The term 'security' means any bond, stock, collateral trust certificate, transferable share, investment contract, certificate under a voting trust agreement, treasury stock, note, debenture, certificate in or under a profit sharing or participation agreement, subscription or preorganization certificate, fractional undivided interest in oil, gas, or other mineral rights, evidence of indebtedness, certificate of deposit for a security, certificate or instrument representing or secured by an interest in the capital assets or property of any company, other instrument commonly known as a security, or certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing." Act of 1941, P.S. 317, 1, 70 PS 32(a).

We have held that the Pennsylvania Securities Act is remedial legislation; its primary purpose is to protect the investing public so that the defined classes of investments are to be liberally construed; only the penal provisions are to be strictly construed. Com. v. Yaste, 166 Pa. Superior Ct. 275, 70 A.2d 685 (1950). In the Yaste case, supra, at page 281, Securities & E. Commission v. C. M. Joiner L. Corp., 320 U.S. 344, 64 S.Ct. 120, was cited with approval, where Mr. Justice JACKSON said: "In applying acts of this general purpose, the courts have not been guided by the nature of the assets back of a particular document or offering. The test ...


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