James M. Phillips, Appellant, v. Alabama Credit Corporation D/b/a Fidelity Securities Corporation, Appellee, 403 F.2d 692 (5th Cir. 1968)

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US Court of Appeals for the Fifth Circuit - 403 F.2d 692 (5th Cir. 1968) November 25, 1968

Thomas M. Haas, Mobile, Ala., for appellant.

Willis C. Darby, Jr., Kilborn, Darby & Kilborn, Mobile, Ala., for appellee.

Before JOHN R. BROWN, Chief Judge, and RIVES and McENTEE,*  Circuit Judges.


Phillips appeals from a directed verdict in favor of Alabama Credit Corp. on three counts of securities fraud in violation of §§ 12(2), 17 of the Securities Act of 1933, 15 U.S.C.A. §§ 77 l(2), 77q, and the Alabama misrepresentation statute, 7 Ala.Code § 108 (1958).1 

Phillips offered no evidence to contradict the overwhelming proof that he committed the fraudulent acts. The only evidence offered by Phillips was reputation testimony from friends and associates. It is clear that fraudulent intent need not be proved and that testimony of the defendant's reputation in the community is not enough to refute overwhelming proof of fraud. Wilko v. Swan, 1953, 346 U.S. 427, 431, 74 S. Ct. 182, 98 L. Ed. 168, 173; S.E.C. v. Capital Gaines Research Bureau, 1963, 375 U.S. 180, 192, 195, 84 S. Ct. 275, 283-284, 11 L. Ed. 2d 237, 246, 248; Mutual Sav. Life Ins. Co. v. Osborne, 1945, 32 Ala.App. 220, 23 So. 2d 864, cert. denied, 247 Ala. 252, 23 So. 2d 867.



From the First Circuit, sitting by designation


This is a companion case to Phillips v. Alabama Credit Corp., 403 F.2d 693, decided this day, which involved violations of these same statutes