Brady v. United States

• Citation: 24 F.2d 405
• Decision Date: 03 January 1928
• Docket Number: No. 7787.,7787.
• Parties: BRADY v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

24 F.2d 405 (1928)

BRADY v. UNITED STATES.

No. 7787.

Circuit Court of Appeals, Eighth Circuit.

January 3, 1928.

Clyde Taylor, of Kansas City, Mo. (Ernest S. Ellis, of Kansas City, Mo., on the brief), for plaintiffs in error.

Alton H. Skinner, Asst. U. S. Atty., of Topeka, Kan. (Al. F. Williams, U. S. Atty., of Topeka, Kan., on the brief), for the United States.

Before WALTER H. SANBORN and BOOTH, Circuit Judges, and PHILLIPS, District Judge.

PHILLIPS, District Judge.

James E. Brady and Arthur J. Baxter, together with certain other persons, were charged by indictment with violations of sections 215 and 37 of the Penal Code (USCA tit. 18, §§ 338 and 88). The indictment contained sixty-six counts. The first sixty-five counts charged violations of section 215, and the sixty-sixth count charged a violation of section 37 of the Penal Code. Brady and Baxter were tried jointly. Brady was found guilty on counts 1 to 38, inclusive, counts 41 and 42, counts 44 to 52, inclusive, and counts 54 to 66, inclusive. Baxter was found guilty on counts 11 to 38, inclusive, counts 41 and 42, counts 44 to 52, inclusive, and counts 54 to 66, inclusive. Brady was sentenced to imprisonment in the penitentiary as follows: On the first count, five years; on the second count, five years, to begin at the expiration of the sentence of imprisonment imposed on the first count; on the third count, five years, to begin at the expiration of the sentence of imprisonment imposed on the second count; on the sixty-sixth count, two years, to begin at the expiration of the sentence of imprisonment imposed on the third count; and on the remaining counts, five years each, to run concurrently with the sentence of imprisonment imposed on the first count. Baxter was sentenced to imprisonment in the penitentiary as follows: On the eleventh count, five years; on the sixty-sixth count, two years, to begin at the expiration of the sentence of imprisonment imposed on the eleventh count; on each of the remaining counts, five years, to run concurrently with the sentence of imprisonment imposed on the eleventh count.

Count 1 of the indictment alleged that the defendants devised a scheme and artifice to defraud. It then set out the particulars of such scheme. It then alleged that the defendants, in the execution of such scheme, did deposit and cause to be deposited in the United States post office at Kansas City, Mo., a certain letter inclosed in a sealed envelope duly stamped, intending that such letter should be sent and delivered, and which such letter was, in fact, delivered through the post office establishment to the Vernon State Bank at Vernon, Kan. It then set up the letter and the return directions, stamp and address on the envelope. The address on the envelope was as follows: "Vernon State Bank, Vernon, Kansas."

Counts 2 to 65, inclusive, are substantially the same as the first count, except they allege the mailing and delivery of different letters.

The conspiracy count, after alleging the conspiracy, set up as overt acts the use of the mails in the execution of the scheme to defraud alleged in counts 1 to 65, inclusive.

Brady and Baxter filed a motion to quash the indictment, setting up, among other grounds, that there was no competent evidence before the grand jury of the offenses charged.

On the hearing of the motion to quash, counsel for defendants Brady and Baxter undertook to prove that there was no evidence whatever before the grand jury showing that the defendants used the mails in executing or attempting to execute the scheme to defraud. At the hearing, the following occurred:

"The Court: Well, the court has already ruled, but for the sake of the present record will repeat his ruling, that upon this inquiry the only matters concerning which the court will hear testimony, or the only allegations concerning which he will hear testimony, are that no testimony of any kind was offered to the grand jury, or that the only witnesses who testified before the grand jury were not in law competent witnesses.

* * * * * * *

"Mr. Krauthoff: We desire to note an exception to the ruling of the court and to inquire for our own guidance whether the court intimates that we cannot prove that there was no evidence as to some material link in the chain of evidence necessary to sustain the indictment.

"The Court: Yes; that is a very clear inquiry, and my answer will be equally clear. I think you cannot offer testimony to show that as to some particular link there was no testimony before the grand jury. That is my view of the law, and I think that view is shared by the better considered decisions of the appellate court.

"Mr. Krauthoff: You mean we would not be permitted to prove that there was no proof that the letters were mailed?

"The Court: I do mean that, Mr. Krauthoff.

"Mr. Krauthoff: Or there was no proof that they were signed by the parties against whom they were offered?

"The Court: When I answered your general question, I certainly answered your specific questions.

"Mr. Krauthoff: We note exceptions to the rulings of the court.

* * * * * * *

"Mr. Krauthoff: And now, to make our record clear, we offer to prove by the witness on the stand and by others we have here, that there was no evidence offered before the grand jury that the letters had been mailed, nor that they were written by any of the parties to the suit.

"The Court: You object to the offer, Mr. Skinner?

"Mr. Skinner: We object to the offer as not within the scope of the inquiry which is now being conducted, nor within the scope of the court to hear, and determine, and pass upon.

"The Court: The objection is sustained.

"Mr. Krauthoff: To which we except."

The gist of the offense under section 215, supra, upon which counts 1 to 65, inclusive, are based, is the use of the mails in executing or attempting to execute the scheme to defraud, and not the scheme itself. Mounday v. U. S. (C. C. A. 8) 225 F. 965, 968; Horn v. U. S. (C. C. A. 8) 182 F. 721, 727; Redmond v. U. S. (C. C. A. 1) 8 F.(2d) 24, 28; Olsen v. U. S. (C. C. A. 2) 287 F. 85, 89; U. S. v. Jones (C. C. N. Y.) 10 F. 469, 470.

In Mounday v. U. S., supra, the court said:

"It has been the uniform holding of the courts that the gist of the offense is the use of the post office in the execution of the scheme to defraud and not the scheme itself."

The crime of conspiracy as defined in section 37 of the Penal Code is made up of two elements: (1) The conspiracy; and (2) an act done by one or more of the parties to effect the object of the conspiracy. U. S. v. Rabinowich, 238 U. S. 78, 86, 35 S. Ct. 682, 59 L. Ed. 1211; Hyde v. U. S., 225 U. S. 347, 357-359, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614; Ryan v. U. S. (C. C. A. 7) 216 F. 13, 32, 33; 12 C. J. p. 550, § 14.

From the foregoing, it appears that the defendants were denied the right to show in support of their motion to quash that there was no evidence whatever before the grand jury of the acts and things which constituted the gist of the offenses charged in counts 1 to 65, inclusive, and of the overt acts charged in count 66.

The authorities are not in harmony on the question here presented. In 31 C. J. p. 808, § 385, it is...