Barnard v. United States
| Decision Date | 20 December 1926 |
| Docket Number | No. 4723.,4723. |
| Citation | 16 F.2d 451 |
| Parties | BARNARD et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
William Ellis Lady, J. A. Anderson, and W. H. Anderson, all of Los Angeles, Cal., for plaintiff in error Barnard.
James V. Brewer, of Los Angeles, Cal., for plaintiffs in error Dunn and Tune.
John W. Preston and Annette Abbott Adams, both of San Francisco, Cal., for plaintiff in error Dennison.
Samuel W. McNabb, U. S. Atty., and J. Edwin Simpson, Asst. U. S. Atty., both of Los Angeles, Cal.
Before GILBERT and RUDKIN, Circuit Judges, and JAMES, District Judge.
This is a writ of error to review a judgment of conviction under section 215 of the federal Penal Code (Comp. St. § 10385). The indictment charged that the plaintiffs in error had devised and intended to devise a scheme and artifice to defraud certain named persons and a large number of others, including the public generally, whose names, because of their great number and for want of information on the part of the grand jurors, were not given, and to obtain money and property by false and fraudulent pretenses, representations, and promises. It was then charged that it was a part of said scheme and artifice that certain or all of the plaintiffs in error should do certain things, or should make certain false and fraudulent representations, or that certain things should be done. The scheme and artifice to defraud was set forth in the first count of the indictment, and was made a part of the remaining eight counts by reference only. Each count charged the mailing of a letter for the purpose of executing the scheme and artifice in the usual form.
The indictment was returned on March 21, 1924; the plaintiffs in error were arraigned on April 21, 1924; the plaintiff in error Tune pleaded not guilty on April 25, 1924; the plaintiffs in error Barnard and Dunn entered like pleas on May 5, 1924; and the plaintiff in error Dennison on June 2, 1924. The cause was set for trial on September 22, 1925. At or before the commencement of the trial, but on the date set for the trial, Dunn and Tune made separate demands for a bill of particulars. The demand of the former asked for specific information in 70 different respects, and the demand of the latter in 68 different respects. These demands were denied. A motion to dismiss, interposed at the commencement of the trial, was likewise denied, as was a motion in arrest of judgment, interposed after verdict. Upon the trial, some of the plaintiffs in error contend that the letter set forth in the first count of the indictment was stricken therefrom, while others contend that the first count was dismissed.
Aside from the voluminous demands for bills of particulars, separate briefs have been filed by three of the plaintiffs in error, aggregating more than 500 pages and assigning upwards of 180 errors. Many of these assignments are, of course, based upon the same ruling, but the difficulty and impracticability of considering each assignment separately becomes at once apparent. We will therefore consider such assignments only as appear to have some show of merit.
One of the plaintiffs in error challenges the sufficiency of the indictment because of the use of the word "should" in describing the scheme and artifice to defraud, claiming that the indictment contains no averment that the plaintiffs in error did any of the things which it is averred they should do. But in this class of cases the fraud usually consists in the making of false promises, which the parties never carried out and never intended to carry out. In fact, in most cases, if the parties actually did what they falsely promised to do, or represented that they would do, no crime would or could result. The very essence of the crime consists in the making of false promises which the parties never intended to perform, or false representations which they never intended to make good; and, while the language of the indictment in this case may be inapt and open to criticism, we think it sufficiently appears therefrom that the plaintiffs in error conspired or agreed together to falsely represent that they would do certain things, which they never did and never intended to do, and that by means of these false representations, pretenses, and promises they obtained money and property. Such conduct on their part constituted a scheme and artifice to defraud, within the meaning of the statute. United States v. King (D. C.) 229 F. 275; Miller v. United States (C. C. A.) 4 F.(2d) 228.
Again, it is contended that the indictment is vague and duplicitous, and that the court erred in denying the demands for bills of particulars. The first objection cannot...
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