{
  "id": 8721323,
  "name": "J. Ernie GASKIN v. STATE of Arkansas",
  "name_abbreviation": "Gaskin v. State",
  "decision_date": "1968-04-08",
  "docket_number": "5301",
  "first_page": "541",
  "last_page": "544",
  "citations": [
    {
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      "cite": "244 Ark. 541"
    },
    {
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      "cite": "426 S.W.2d 407"
    }
  ],
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      "cite": "188 S. W. 1",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "year": 1916,
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    },
    {
      "cite": "125 Ark. 24",
      "category": "reporters:state",
      "reporter": "Ark.",
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      "cite": "149 N. E. 2d 695",
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      "reporter": "N.E.2d",
      "year": 1958,
      "opinion_index": 0
    },
    {
      "cite": "121 S. W. 949",
      "category": "reporters:state_regional",
      "reporter": "S.W.",
      "year": 1909,
      "opinion_index": 0
    },
    {
      "cite": "91 Ark. 562",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1511786
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      "year": 1909,
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  "last_updated": "2023-07-14T21:22:25.068679+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "BbowN, J., not participating."
    ],
    "parties": [
      "J. Ernie GASKIN v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "George Rose Smith, Justice.\nFourteen separate in-formations were filed against the appellant, J. Ernie Gaskin, charging* that he had violated \u00a7 7 of the Arkansas Securities Act, Ark. Stat. Ann. \u00a7 67-1241 (Repl. 1966), by selling Americana Motor Inns corporate stock to certain residents of Lee county with knowledge that the securities had not been registered as required by the Act. Upon trial the jury found Gaskin guilty of every offense charged and fixed his punishment for each off\u00e9nse at a fine of $1,000. and imprisonment for one year. This appeal is from a judgment entered on the verdict.\nWe need not detail the State\u2019s proof. Gaskin was the president of a company that was a registered dealer in securities. He did not deny that his salesmen had made the asserted sales of Americana stock to the purchasers who testified for the State. His defense was that the stock did not have to be registered, because he had obtained an exemption under \u00a7 14 (b) (9) of the Act, which exempts (upon certain conditions) \u201cany transaction pursuant to an offer directed by the offeror to not more than twenty-five (25) persons.\u201d Ark. Stat. Ann. \u00a7 67-1248 (b) (9). That subsection goes on to provide that the Securities Commissioner may by rule or order further condition the exemption.\nThe State, in presenting its case in chief, attempted to anticipate and rebut Gaskin\u2019s expected defense by proving that he had not complied with the Commissioner\u2019s rules governing what we may call the 25-offerees exemption. The Commissioner, called as a witness for the State, testified that his department had adopted a rule requiring an applicant for that particular exemption to file a list of the names of the 25 proposed of-ferees \u201cso we will know who they are.\u201d It was then shown that the names of the fourteen purchasers referred to in the informations against Gaskin were not included in the list of 25 names that Gaskin had filed in obtaining the exemption for Americana corporate stock. Upon that proof the State contended below, and contends here, that Gaskin was guilty as charged.\nWe cannot sustain that argument. Section 21 (a) of the Act (\u00a7 67-1255 [a]) provides that a violation of the statute is a felony punishable by a fine of not more than $5,000 or by imprisonment for not more than three years, or by both. By contrast, \u00a7 21 (b) (\u00a7 67-1255 [b]) provides that a violation of any authorized rule or. order of the Commissioner is a misdemeanor punishable by a fine of not more than $500 or by imprisonment for not more than six months, or by both.\nGaskin was charged and convicted under the felony provisions of the Act, but the proof does not support the conviction. The statute, being penal, must be construed strictly. It simply provides an exemption with respect to an offer of securities directed to not more than 25 persons (with other conditions not now relevant). It is plain enough that the statute, when read without reference to the Commissioner\u2019s implementing rule, was not violated by the sale of Americana stock to only fourteen persons.\nUnder our practice, when the evidence does not support the jury\u2019s verdict of guilty with respect to the offense charged, but does support a finding of guilty with respect to a lesser included offense, we may reduce the judgment accordingly unless the Attorney General elects to take a new trial. Green v. State, 91 Ark. 562, 121 S. W. 949 (1909). Here, however, even if it can be said that the proof establishes Gaskin\u2019s commission of a misdemeanor (or fourteen misdemeanors), that offense is not included within the felony with which he was charged. \u201cTo be an included offense, all the elements of the lesser offense must be contained in the greater offense \u2014 the greater containing certain elements not contained in the lesser.\u201d Beck v. State, Ind., 149 N. E. 2d 695 (1958). See also Wharton\u2019s Criminal Law, \u00a7 33 (12th Ed. 1932); Moreland v. State, 125 Ark. 24, 188 S. W. 1, L.R.A. 1917A, 140 (1916); State v. Nichols, 38 Ark. 550 (1882).\nThe statutory definition of the 25-offerees exemption contains no requirement whatever that a list of names be filed with the Commissioner. That substantive step may well have been a proper implementation of the statute under the Commissioner\u2019s rule-making power, but the evidence to establish a violation of the Commissioner\u2019s rule must unquestionably encompass an element (the offer of the securities to a person not named on the list) not included within the felony denounced by the statute. Hence we cannot properly reduce the felony convictions to misdemeanors.\nThe judgment is reversed, and, since the State may be able to prove that the securities were actually offered to more than 25 persons, the cause is remanded for a new trial.\nBbowN, J., not participating.",
        "type": "majority",
        "author": "George Rose Smith, Justice."
      }
    ],
    "attorneys": [
      "Harold Hall, for appellant.",
      "Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "J. Ernie GASKIN v. STATE of Arkansas\n5301\n426 S. W. 2d 407\nOpinion delivered April 8, 1968\nHarold Hall, for appellant.\nJoe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee."
  },
  "file_name": "0541-01",
  "first_page_order": 565,
  "last_page_order": 568
}