Lehman v. United States

• Decision Date: 06 November 1903
• Docket Number: 16.
• Citation: 127 F. 41
• Parties: LEHMAN v. UNITED STATES
• Court: U.S. Court of Appeals — Second Circuit

127 F. 41

LEHMAN v. UNITED STATES

No. 16.

United States Court of Appeals, Second Circuit.

November 6, 1903

Joel M Marx, for plaintiff in error.

W. S Ball, for the United States.

Before LACOMBE and TOWNSEND, Circuit Judges, and HAZEL, District Judge.

TOWNSEND Circuit Judge.

The indictment comprises six counts, charging the accused, under section 5440 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 3676), which conspiring to commit an offense against the United States, being an offense created by section 5480 of said Revised Statutes, as amended by the act of March 2, 1889, c. 393, Sec. 1, 25 Stat. 873 (U.S Comp. St. 1901, p. 3696). Section 5440 (U.S. Comp. St. 1901 p. 3676) makes it a crime for two or more persons to conspire to commit an offense against the United States where one or more of such parties did any act to effect the object of the conspiracy. The material portions of section 5480 as amended are as follows;

'If any person having devised or intending to devise, any scheme or artifice to defraud, or to sell, dispose of, loan, exchange, alter, give away or distribute, supply, or furnish, or procure for unlawful use any counterfeit or spurious coin, bank notes, paper money, or any obligation or security of the United States, * * * or anything represented to be or intimated or held out to be such counterfeit or spurious articles, or any scheme or artifice to obtain money by or through correspondence, by what is commonly called the 'sawdust swindle,' or 'counterfeit money fraud,' or by dealing or pretending to deal in what is commonly called 'green articles,' 'green coin,' 'bills,' 'paper goods,' 'spurious Treasury notes,' * * * to be effected by either opening or intending to open correspondence or communication with any person, whether resident within or outside the United States, by means of the post-office establishment of the United States or by inciting such other person or any person to open communication with the person so devising or intending shall, in and for executing such scheme or artifice or attempting so to do, place or cause to be placed, any letter, packet, writing, circular, pamphlet, or advertisement in any post-office branch post-office, or street or hotel letter-box of the United States, to be sent or delivered by the said post-office establishment or shall take or receive any such therefrom such person so misusing the post-office establishment shall, upon conviction, be punishable,' etc.

The proof in support of the indictment, so far as is material to the questions raised herein, showed that one Gates received at Troy, N.H., a letter in an envelope postmarked, 'New York, March 21, 1901,' containing a circular offering to enter into negotiations for the sale to Gates of counterfeit money, and requesting him, if he wished to co-operate with the sender in said negotiations, to telegraph to L. Raymond, West Chester Depot, West Chester, N.Y., which Gates did; that thereafter he received at said Troy a second circular, signed, 'B. Marvin,' further explaining the scheme, and inclosing a genuine $1 bill, which purported to be a sample of the sender's work; and that he (Gates) afterward sent other telegrams, following the instructions in said letter, to the effect that he would come to New York for the purpose of purchasing some of said counterfeit money.

Samuel B. Davis, a detective, testified that on May 18, 1901, he went to the Cosmopolitan Hotel, at New York, registered as L. E. Gates, and took a room; that as he was standing in the elevator he heard some one say in the telephone, 'Gates is here,' and shortly thereafter he was called to the telephone, and a person claiming to be B. Marvin arranged for a meeting with him at 73 Park Place. The rest of the evidence is as follows:

'I walked down as far as that corner, Park Place and West Broadway, and I was approached by a party. Q. Where were you when you were approached? A. Standing on this corner, or near the corner, on Park Place. A party came up to me and shook hands; said 'Good morning.' I said 'Good morning.' He said, ' Are you Gates?' I said, 'Yes.' I said, 'Are you Marvin?' and he said, 'Yes;' and I said, 'I am stock 68.' I see that party in the courtroom. He is the third gentleman at that table. I mean the defendant sitting here behind counsel. Q. What next? A. I asked him if he had his goods with him. He said, 'No,' and he commenced to laugh. I recognized the man as soon as I seen him. Q. You knew him? A. I knew him; yes, sir. Q. Go on. A. I asked him if he had the goods with him, and he said no; he didn't have them with him; he would have to go to New Jersey for them; and he commenced to laugh then, and I commenced to laugh, and he said-- turned around and said, 'I will see you later,' and says, 'I will meet you by and by;' and I says, 'No; I guess I will take you along now.' Q. Was anything said, whether you had your money with you? A. I told him that I had my money with me, and wanted to know if he had the goods with him. We had a conversation in regard to that, anyhow. I took him into custody immediately. Q. Anything said about Newark in that conversation? A. It was somewhere in New Jersey. The conversation was to go to New Jersey. I don't remember the town it was. Q. You don't remember whether it was Newark or not? A. To the best of my recollection, it is Newark, but I wouldn't swear to that, because it was some place in New Jersey he said he would go.'

The witness stated also on cross-examination that the accused recognized him, and further testified as follows:

'Q. And the recognition, so far as you know, was almost mutual, wasn't it? A. I cannot state whether it was mutual or not. I know that he recognized me afterwards, and that was the reason I arrested him. He wouldn't have anything more to do with me. I made the arrest right there. He did not offer to produce any green goods. Q. Did he say he was the party there to produce the green goods? A. No; not in so many words he didn't. Q. Did he say he had the green goods in Newark? A. Said he could go over there and get them. Get them for me. Q. After he recognized you? A. That was just before he walked away. I am positive of that. Absolutely positive.'

The only further material testimony was that of Anthony Comstock, that on or about the same dates he received through the post office at New York City similar circulars, with similar instructions, and certain telegrams, being the originals of the messages sent by said Gates.

All of the counts in the indictment, except the fourth count, charge the accused with said conspiracy to defraud certain persons 'by dealing and pretending to deal what is commonly called 'green articles' and 'spurious Treasury notes.' ' The fourth count charges said conspiracy 'by pretending to deal in what is commonly called 'green articles' and 'spurious Treasury notes,' and that it was the purpose and design of such conspirators to convert to their own use any and all money which might be obtained by them by and through the said conspiracy. ' If such count could be sustained on the evidence, it would be sufficient to support the general verdict of guilty on all the counts. Evans v. United States, 153 U.S. 584, 595, 14 Sup.Ct. 934, 38 L.Ed. 830; Claassen v. United States, 142 U.S. 140, 12 Sup.Ct. 169, 35 L.Ed. 966; Milby v. United States, 120 F. 1, 57 C.C.A. 21.

It is urged by counsel for the accused that there was no evidence to support said count. We are not satisfied that this contention is correct. That the second circular received by Gates contained a genuine $1 bill, which purported to be a sample of the sender's work, may be considered as inconsistent with the idea that the goods afterward to be delivered should be counterfeit because a comparison of the genuine note with the spurious ones might have disclosed to the supposed intending purchaser that they were not the same as the sample. And we think it was competent for the jury, provided they found the fact of a conspiracy to defraud, to find upon the evidence that it was such a conspiracy, intended to be effected by sending genuine notes under the pretense that they were what the party was dealing in, and that in fact he was not dealing in green articles or spurious Treasury notes at all. But without disposing of this question, we are brought to a consideration of the more serious objection raised to the other counts.

Counsel for the accused contends that each of said counts is fatally defective because the allegations of a conspiracy to defraud by 'dealing and pretending to deal' in what is called 'green articles' and 'spurious Treasury notes' are repugnant to each other, and impossible of proof in the same transaction. The true test of the sufficiency of an indictment is whether it contains every element of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet. Cochran and Sayre v. United States, 157 U.S. 286, 290, 15 Sup.Ct. 628, 39 L.Ed. 704. And when the statute enumerates several acts in the alternative, where all are punishable by the same penalty, they may all be charged conjunctively as one offense in one count, and such charges are not repugnant, either in themselves, or in the punishment therefor. State v. Flint, 62 Mo. 393; Wharton's Criminal Pleading & Practice, 762, 251, and cases cited. But where two inconsistent offenses, requiring different punishment, are introduced into one count, judgment may be arrested; and, where there is repugnancy between the material averments of an indictment in a single count, it will vitiate said count. 18 Encyclopedia of Pleading & Practice, p. 742; 10 Id.p. 536; Wharton's Criminal Pleading & Practice, Sec. 255. It is essential that the charge should...