The opinion
V. J. Brennan, J.
(dissenting). The majority’s *48 disposition of the issue of fraudulent practices committed by defendant is based upon their characterization of defendant’s actions as a criminal conversion of money entrusted to him for another use. However, the defendant’s fraudulent acts connected with the offer to sell a security are sufficient to bring this case within the purview of the Uniform Security Act.
Section 101 of the Act provides:
"Sec. 101. It is unlawful for any person, in connection with the offer, sale or purchase of any security, directly or indirectly:
"(1) To employ any device, scheme or artifice to defraud.
"(2) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading.
"(3) To engage in any act, practice or course of business which operates or would operate as a fraud or deceit upon any person.” MCL 451.501; MSA 19.776(101). (Emphasis added.)
The Act defines security as follows:
"(1) 'Security’ means any note; stock; treasury stock; bond; debenture; evidence of indebtedness; certificate of interest or participation in any profit-sharing agreement; collateral-trust certificate; preorganization certificate or subscription; transferable share; investment contract; voting-trust certificate; certificate of deposit for a security; certificate of interest or participation in an oil, gas or mining title or lease or in payments out of production under such a title or lease; or, in general, any interest or instrument commonly known as a 'security’, or any 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. 'Security’ does not include any insurance or endowment policy or annuity contract *49 under which an insurance company promises to pay money either in a lump sum or periodically for life or some other specified period.” MCL 451.801(1); MSA 19.776(401X1).
Sale and offer to sell are defined in pertinent part as follows:
"(j) (1) 'sale’ or 'sell’ includes every contract of sale of, contract to sell, or disposition of, a security or interest in a security for value.
"(2) 'Offer’ or 'offer to sell’ includes every attempt or offer to dispose of, or solicitation of an offer to buy, a security or interest in a security for value.” MCL 451.801(¡); MSA 19.776(401)(j). (Emphasis added.)
On January 12, 1974, defendant met with the Reeds and told them about oil and gas partnerships, limited real estate partnerships, apartment buildings, and the Channing mutual fund. After discussing the merits of several investment possibilities, the Reeds selected a program "like the Channing program”. Mrs. Reed then gave the defendant a check for $10,000 made out to AAIIP. The defendant told the Reeds that this money would go into "an investment vehicle like the Channing Fund”. Later another $5,000 was turned over to defendant.
Clearly the defendant was offerng a participation in a mutual fund which falls within the definition of securities set forth above. The fact that defendant never invested the money in a mutual fund but used the Reed’s monies to pay not only his business creditors but his alimony and support payments indicates he never intended to invest the Reed’s money. There was ample evi-. dence which proved defendant’s fraudulent intent. I would hold that the Act encompasses this type of activity and would affirm on this issue.