744 SHEPHERD V. STATE [246 J. R. SHEPHERD V. STATE OF ARKANSAS 5-5392 439 S.W. 2d 627 Substituted Opinion on Rehearing Delivered April 21, 1969 [Original opinion delivered February 17, 1969, p. 159.] Mines & Minerals—Securities Act, Isolated Sale as Violative of— Weight & Sufficiency of Evidence.—Evidence held insufficient to support a conviction under § 67-1237 and § 67-1241 where sale of interest in oil and gas lease by owner, who did not act, nor purport to act as a broker-dealer, was exempted under operation of statute as an isolated non-issuer transaction. [Ark. Stat. Ann. § 67-1248 (b) (1).] Appeal from Pulaski Ci rant Court, First Division William J. Kirby, Judge; reversed and dismissed. Harry Robinson and Harold Hall for appellant. Joe Purcell, Atty. 0-en.; Don Langston, Asst. Atty. Gen., for appellee. JOHN A. FOGLEMAN, Justice. In its petition for rehearing the state admits that the evidence in this case
ARK.] S dEPHERD V. STATE 745 was insufficient to support a conviction. The basis of this confession is the fact that under the evidence, appellant was not shown to have operated as a broker-dealer in violation of Ark. Stat. Alm. § 67-1237. There is no evidence that appellant acted or purported to act as a broker-dealer in this isolated transaction. A broker-dealer is one engaged in the business of effecting transactions in securities, according to the definition in Ark. Stat. Ann. § 67-1247. For the same reason appellant could not be guilty of the sale of an unregistered security in violation of •Ark. Stat. Ann. § 67-1241. Regardless of whether the sale of an interest in au oil and gas lease by the oWner constitutes a security in the sense of that section and the definition given in § 67-1247(1), this sale is exempted from the operation of the act by § 67-1248(b) (1.) , as an isolated uon-issuer transaction. With respect to certificates of interest or participation in oil, gas, or mining litles or leases, or in payments out of production out of such titles or leases, there is not considered to be any issuer. Section 67-1247 ( g) . Thus regardless of whether an oil and gas lease is a. security under the Arkansas Securities Act, the conviction in this ease must be reversed and the charge dismissed. The opinion delivered February 17, 1969, in this ease is withdrawn and this opinion substituted. The judgment is reversed and the cause dismissed.
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