Concurring and Dissenting. — I concur in the judgment reversing counts I, II, V, VI, VIII, X, XI, XIII, XVI, XVII, XVIII, XX, XXI, XXII, XXIV, XXV, XXX, XXXI, XXXII, XXXIII, XXXV, XXXVI, and XXXVIII. I dissent from the judgment affirming the conviction on counts III, IV, VII, IX, XII, XXIX, XXXIV, XXXVII, XXXIX, and XXXX.
Viewing the evidence most favorable to respondent, the essential facts are:
On November 19, 1934, appellant entered into an agreement to sell defendant Anderson 5000 tons of gold bearing ore at the price of $2 per ton. He received on account of this contract $3,400. Thereafter defendants Anderson and Barricklow, without first obtaining a permit from the corporation commissioner, entered into agreements with a number of persons, of which the following is typical:
“BILL OF SALE
“KNOW ALL MEN BY THESE PRESENTS:
“That the STAR OF CIMA MINES, a party of the first part, for and in consideration of the sum of One Hundred twenty five dollars ($125.00) legal tender of the United States of America, to me in hand paid by Nettie A. Barton, party of the second part, the receipt whereof is hereby acknowledged, do by these presents sell unto the said party of the second part, his executors, administrators and assigns, Fifty (50) tons of ore at the STAR OF CIMA MINES, said ore to be shipped to the American Smelter and Refining Company at Salt Lake City, Utah, within Ninety (90) days from date. It is agreed that the STAR OF CIMA MINES will remit direct to the said Nettie A. Barton the sum of Two hundred fifty dollars ($250).
“IT IS FURTHER AGREED that should the shipment not be sufficient to bring a net return of the required ($250.-00) the party of the first part agrees to make a further shipment immediately to cover the deficit.
“Unavoidable Delays. It is further agreed that the obligations imposed upon the first party may be suspended *34by the elements, accidents, strikes, lockouts, riots, delays in transportation, or interference by State or Federal action, or causes beyond the control of the first party.
“Dated this 1 day of December, 1934
“(Signed) L. W. ANDERSON
Party of the first part
STAR OF CIMA MINES
(Signed) NETTIE A. BARTON
Party of the second part
Witness:
(Signed)
GEORGENE WILLIAMS
Received payment in full
_J )
These two defendants represented to the parties with whom they were dealing that they would double their money by entering into the transactions. In each instance charged in the indictment, not only did the parties dealing with defendants Anderson and Barricklow not receive double their money, but neither their investment nor any portion thereof was returned to them.
Appellant relies for reversal of the judgment on this proposition:
There is no substantial evidence to sustain the implied findings of fact of the jury upon which the judgments against him were necessarily predicated, to wit, that he had conspired with his codefendants to commit the various violations of the Corporate Securities Act and grand thefts charged in the indictment.
This proposition is tenable. An examination of the record fails to disclose any evidence that appellant had knowledge of or participated in any way in the various transactions which took place between his codefendants and the complaining witnesses. The only evidence connecting appellant in any way with the transactions was that he entered into the agreement of November 19, 1934, with defendant Anderson mentioned above and that on several occasions he telegraphed Ms codefendants that certain quantities of ore had been mined by him, and on September 30, 1934, wrote defendant Anderson the following letter:
*35“Dear Mr. Anderson:
“Responding as to the probable outlook during the month of October, it will be within the capacity of our operations to have say 21 cars during that period. Endeavor will be made to steadiness in output so all commitments made or planned in connection therewith will be promptly met.
“Sincerely yours,
“J. L. Harper.”
It thus appears that the record is devoid of any evidence even slight which connects or tends to connect appellant with any of the crimes of which he was convicted.
For the foregoing reasons the judgments appealed from should in my opinion be reversed and a new trial granted.
A petition by appellant to have the ■ cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on November 1, 1939. Edmonds, J., and Carter, J., voted for a hearing.