Salinger v. United States
| Decision Date | 23 November 1926 |
| Docket Number | No. 238,238 |
| Citation | 47 S.Ct. 173,71 L.Ed. 398,272 U.S. 542 |
| Parties | SALINGER v. UNITED STATES |
| Court | U.S. Supreme Court |
Messrs. Benjamin I, Salinger, of Sious City, Iowa, Arthur F. Mullen, of Omaha, Neb., and Robert Healy, of Ft. Dodge, Iowa, for plaintiff in error.
The Attorney General and Mr. Alfred A. Wheat, of Washington, D. C., for the United
Messrs. Benjamin I. Salinger, of Sioux
[Argument of Counsel from page 543 intentionally omitted] Mr. Justice VAN DEVANTER delivered the opinion of the Court.
By this direct writ of error we are asked to review a judgment of conviction in the federal district court for South Dakota for a violation of section 215 of the Criminal Code (Comp. St. § 10385), which makes it a criminal offense to use the mail for the purpose of executing a scheme to defraud. The writ was sued out on the assumption that the case is one involving the construction and application of certain provisions of the Constitution relating to accusations and prosecutions for criminal offenses. If the assumption was right, the writ was properly allowed under section 238 of the Judicial Code (Comp. St. § 1215), as existing at that time (November 29, 1924); otherwise, the review should have been sought in the Circuit Court of Appeals.
The statutes which define and distribute federal appellate jurisdiction and make the existence of a constitutional question the test of the right to a review, as also of the court in which the review may be had, always have been construed as referring to a question having sufficient substance to deserve serious consideration, and not one which is so devoid of merit as to be fanciful or frivolous, or which is not open to discussion because settled by prior decisions. Goodrich v. Ferris, 214 U. S. 71, 79, 81, 28 S. Ct. 580, 53 L. Ed. 914; Brolan v. United States, 236 U. S. 216, 35 S. Ct. 285, 59 L. Ed. 544; Sugarman v. United States, 249 U. S. 182, 39 S. Ct. 191, 63 L. Ed. 550. Under a different construction the restrictions and distributing provisions in the statutes would have little purpose; for constitutional questions of no substance readily could be devised and presented as mere pretexts for obtaining a review on other questions. United Surety Co. v. American Fruit Co., 238 U. S. 140, 142, 35 S. Ct. 828, 59 L. Ed. 1238. This case, being criminal, belongs to a class in which the review ordinarily is to be had in the Circuit Court of Appeals. Judicial Code, § 128 (Comp. St. § 1120). Therefore it becomes material to inquire whether the constitutional questions said to be involved are adequate to bring the case within the exceptional provision in section 238 for a review by this court on direct writ of error.
The grounds advanced for invoking such a review are:
1. The conviction in the district of South Dakota was in violation of the provision in the Sixth Amendment to the Constitution entitling an accused to a trial in the state and district wherein the crime was committed, because (a) the indictment definitely charged the crime as committed in the Northern district of Iowa; (b) if the indictment did not so charge, it was uncertain in that it did not show whether the place of the crime was in one district or in the other; and (c) there was no evidence that the place was in the district of South Dakota.
2. The charging part of the indictment was so indefinite and ambiguous that the accused was not informed of the nature of the accusation as required by the same amendment.
3. On the trial hearsay evidence was admitted over the accused's objection that its admission would be in derogation of his right under that amendment to be confronted with the witnesses against him.
4. Contrary to the Fifth Amendment, the accused was held to answer for an infamous crime otherwise than on an indictment by a grand jury, in that on the trial the court, being of opinion that part of what was charged in the indictment had no support in the evidence, withdrew that part from the jury and left them free to convict on what remained without a resubmission to a grand jury.
When these contentions are stated, without more, some of them appear to present serious constitutional ques- tions; but it is quite otherwise when they are examined in connection with pertinent portions of the record and in the light of prior decisions.
The indictment contained several counts. All related to the same scheme to defraud, but each charged a distinct use of the mail for the purpose of executing the scheme. There were three defendants. Two were acquitted on all counts. Salinger, the other defendant, was convicted on the seventh count and acquitted on the others. His conviction on that count is what we are asked to review, the assignments of error being unusual in number and directed against almost everything done in the case.
The offense charged in that count was that the defendants devised a described scheme to defraud and, for the purpose of executing it, knowingly caused a letter to be delivered by the mail, according to the direction thereon, at Viborg, in the district of South Dakota, the letter and the direction being set forth. Then, by way of explaining how the delivery was brought about the count further charged that the defendants had caused the letter to be placed in the post office of Sioux City, Iowa, for delivery through the mail at Viborg, S. D., according to the address thereon.
It is very plain that the offense charged was causing the letter to be delivered by mail in South Dakota in furtherance of the scheme, and that the proper place of trial was in the district of South Dakota, where the delivery was effected as intended. We so held in a proceeding where Salinger was resisting removal to that district for trial on this indictment. Salinger v. Loisel, 265 U. S. 224, 44 S. Ct. 519, 68 L. Ed. 989. The question hardly was debatable then, and certainly has not been an open one since. The assertion that there was no evidence of the commission of the offense in that district...
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