107 F.2d 359 (5th Cir. 1939), 9135, Hartwell v. United States

Docket Nº:9135.
Citation:107 F.2d 359
Case Date:November 16, 1939
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 359

107 F.2d 359 (5th Cir. 1939)




No. 9135.

United States Court of Appeals, Fifth Circuit.

November 16, 1939

Page 360

Winston F. Groom, of Mobile, Ala., and Horace C. Wilkinson, of Birmingham, Ala., for appellant.

Francis H. Inge, U.S. Atty., of Mobile, Ala., for appellee.

Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

Appellant was tried upon an indictment charging him in Counts 1 and 2, with violation of Section 1731(a), Title 12, U.S.C.A., and in Count 3, with violation of Section 338, Title 18, U.S.C.A. The charge of Count 1, drawn under the first sentence of the Section, was in substance that, the defendant Hartwell and another, for the purpose of obtaining from a bank, a mortgage loan to one McGee, in the sum of $2,500, and with the intent that such loan should be offered to or accepted by the Federal Housing Administration for insurance, falsely and fraudulently stated in writing that the property had been sold to McGee by the defendant Hartwell, for the purchase price of $3300, of which purchase price, $800 had been paid; whereas, the fact was that the property had been sold for $2950 and the amount actually paid was only $450, and the said statement had been made with the intent and purpose of influencing the action of the Federal Administration. The second count drawn under the second sentence of the Section, charged the same acts, and that they had been done for the purpose of influencing the action of the Administration with reference to insuring the loan. The third count charged the same acts as a scheme to defraud and that having devised and entered upon said scheme, the defendant placed and caused to be placed in the mails, a letter addressed to the Bank, containing said false statement. His voluminous grounds of demurrer, 16 to Count 1, 38 to Count 2, and 34 to Count 3 of the indictment, having all been overruled, there was, on May 11, 1939, a general verdict, finding him guilty as charged in the indictment and a judgment and sentence that he pay a fine of $250 and serve a year and a day in a penal institution, the penitentiary sentence to be suspended and defendant placed upon probation for a year and a day upon his paying the fine by June 15, 1939. Defendant gave timely notice of appeal, from the judgment of conviction, paid his fine on the date fixed in the sentence, for its payment and prosecutes his appeal without bill of exceptions and upon assignments that the court erred in overruling his demurrers.

Subject to its motion to dismiss the appeal because filed too late, and because defendant by paying the fine, accepted the judgment and sentence, and abandoned his appeal, the Government joins issue with appellant on the merits, insisting that each count of the indictment sufficiently charged appellant with the commission of an offense. Without discussing the motion to dismiss, other than to say; that the payment of the fine was not, and did not work, an abandonment of the appeal; and that, without regard to whether the assignment of errors was necessary or was timely filed, we have jurisdiction to and will consider the appeal and determine it on its merits, we deny it. 1

Passing as too unsubstantial for consideration or comment, many of the matters urged in support of the demurrers; that, the indictment should have stated, but did not, that the property on which the loan was to be obtained was eligible for loaning; that the indictment does not allege that the purpose of the defendant, was to improperly...

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