noting that the registration requirement could apply to a company's resale of a batch of shares initially distributed using a statutory exemption from registration
How later courts described this case
- noting that the registration requirement could apply to a company's resale of a batch of shares initially distributed using a statutory exemption from registration
- "On its face, § 5 is all embracing."
- "[UJnder section 2(11) ... control makes [defendant] an issuer only with reference to the transactions of an underwriter.”
Written by the judges who cited it.
The opinion
MATHEWS, Circuit Judge
(dissenting in part).
Appellant and Frank S. Tyler were indicted in 17 counts. Appellant demurred to the indictment and to each count thereof on the ground that it charged no offense against the United States. The demurrer was sustained as to count 17 and overruled as to counts 1-16. Appellant was tried on counts 1-16, was acquitted on counts 1-13, was convicted and sentenced on counts 14-16, and has appealed.
Appellant assigns as error the overruling of his demurrer to counts 14 — 16, each of which charged that appellant and Tyler “did cause to be delivered by the United States mails a certain security * * * for the purpose of sale and for delivery after sale * * * no registration statement being in effect as to such security * * * Contrary to the form of the statute in such case made and provided ije * * »
There is no such statute. There is a statute — § 5(a) (2) of the Securities Act of 1933, 15 U.S.C.A. § 77e(a) (2) — which makes it an offense to “carry or cause to be carried through the mails,” for the purpose of sale or for delivery after sale, any security as to which no registration statement is in effect, but counts 14-16 did not, nor did either of them, charge that appellant and Tyler carried or caused any security to be carried through the mails. Each count charged that they caused such a security to be delivered by the mails, but there is no statute making that an offense. Carriage and delivery, obviously, are not the same thing.
The judgment should be reversed, and the case should be remanded with directions to sustain the demurrer to counts 14-16.