Austin v. United States

• Citation: 4 F.2d 774
• Decision Date: 30 March 1925
• Docket Number: No. 4450.,4450.
• Parties: AUSTIN v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

4 F.2d 774 (1925)

AUSTIN v. UNITED STATES.^*

No. 4450.

Circuit Court of Appeals, Ninth Circuit.

March 30, 1925.

William M. Morse, Jr., of Los Angeles, Cal. (Christy J. Nelson, of Los Angeles, Cal., of counsel), for plaintiff in error.

Samuel W. McNabb, U. S. Atty., and J. Edwin Simpson, Asst. U. S. Atty., both of Los Angeles, Cal.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

RUDKIN, Circuit Judge.

Commencing in the latter part of June, 1922, and for about two months thereafter, desk room was rented in an office in the city of Los Angeles, and a business conducted therein under the name of American Circulation Company, or Standard American Circulation Company. Letters were sent through the mails, from this office, or at least under the name of the Circulation Company, to numerous banks in small towns and cities in California and Oregon. The letters stated that the Circulation Company was sending one of its representatives to the city in which the bank was located to call on the business and professional men to take subscriptions for some of its publications; that subscriptions were taken in the form of a note ranging from $20 to $30, due six months from date; that the Circulation Company would allow the bank 10 per cent. for discounting and collecting these notes; that the notes would be discounted with full recourse, and, in the event that they were not paid at maturity, the same would be paid by the Circulation Company. Each letter inclosed a stamped envelope for reply, and was signed, "American Circulation Company, B. C. Bowers, Manager." If the bank to which this circular letter was directed indicated a willingness to discount the notes, the plaintiff in error, soon thereafter, visited the town or city in which the bank was located and took subscriptions for magazines in the form of notes ranging from $20 to $30, as suggested.

Whether the plaintiff in error represented that the instruments thus taken were subscriptions or promissory notes is not deemed material. After obtaining the notes, the plaintiff in error presented them to the bank and discounted them, pursuant to the terms agreed upon. No magazines were ever delivered, and it is now conceded that the entire scheme was a fraudulent one. An indictment was thereafter returned against the plaintiff in error, under section 215 of the Penal Code (Comp. St. § 10385), charging the devising of a scheme and artifice to defraud, and to obtain money and property by false and fraudulent pretenses, representations, and promises, and placing letters in the post office to execute the scheme or artifice. The present writ of error was sued out to review a judgment of conviction.

The testimony on the part of the government tended to show that no persons, other than the plaintiff in error and his wife, were at any time seen in or about the office; that mail addressed to the Circulation Company was delivered at the office to either the plaintiff in error or his wife, or was left there in their absence; that the plaintiff in error ordered the stationery and letter heads; that the multigraphed letters sent to the several banks were ordered by him, and delivery made at his home, to his wife, at his request; that the wife paid for the work by two checks, that were received in evidence; that all subscriptions were taken by the plaintiff in error, and all notes discounted by him; in short, that he and his wife were the only parties in any way connected with the Circulation Company, or the business transacted in its name.

The testimony of the plaintiff in error in his own behalf on direct examination was very brief. He testified that the desk room in the office was rented by Bowers, in his presence;...