Betts v. United States

• Decision Date: 25 August 1904
• Docket Number: 512.
• Citation: 132 F. 228
• Parties: BETTS v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

132 F. 228

BETTS v. UNITED STATES.

No. 512.

United States Court of Appeals, First Circuit.

August 25, 1904

Charles W. Bartlett and Harvey H. Pratt, for plaintiff in error.

Henry P. Moulton, U.S. Atty., and William H. Lewis, Asst. U.S Atty.

Before HOLMES, Circuit Justice, PUTNAM, Circuit Judge, and ALDRICH District Judge.

PUTNAM Circuit Judge.

Nine indictments were returned in the Circuit Court for the District of Massachusetts at the September term, 1901 against the plaintiff in error and one Fisher, under section 5480 of the Revised Statutes, as amended by Act March 2 1889, c. 393, Sec. 1, 25 Stat. 873 (U.S. Comp. St. 1901, p. 3696), which indictments were remitted to the District Court for the same district, and proceeded on to judgment. One indictment appears at large in the record before us. It contains three counts. We also understand that each of the other indictments contains three counts, and that all the offenses charged in all were within the same six calendar months. The indictments and all the counts relate to the same 'scheme and artifice to defraud,' and the only different between the several counts in the several indictments is that each shows a separate mailing. The statute provides that on conviction, punishment shall be imposed 'by a fine of not more than five hundred dollars and by imprisonment for not more than eighteen months, or by both such punishments, at the discretion of the court. ' It also provides as follows:

'The indictment, information, or complaint, may severally charge offences to the number of three when committed within the same six calendar months; but the court thereupon shall give a single sentence, and shall proportion the punishment especially to the degree in which the abuse of the post-office establishment enters as an instrument into such fraudulent scheme and device.'

Section 921 of the Revised States (U.S. Comp. St. 1901, p. 686), provides:

'When causes of a like nature or relative to the same question are pending before a court of the United States, or of any territory, the court may make such orders and rules concerning the proceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so.'

Section 819 of the Revised Statutes (U.S. Comp. St. 1901, p. 629), after providing for challenges in cases of treason, other capital offenses, and other felonies, proceeds:

'And in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges; and in all cases where there are several defendants or several plaintiffs, the parties on each side shall be deemed a single party for the purposes of all challenges under this section.'

The record discloses the following:

'The defendants were severally ordered to proceed to, and were placed upon, trial on said nine indictments, and subsequently separate verdicts of guilty on each indictment were rendered against the defendants Betts.'

And again:

'By order of the court, the said nine indictments were tried together and at the same time, and upon each of said nine indictments separate verdicts were rendered.' No objection was made to these orders. They are assumed to have been entered pursuant to that portion of section 921 of the Revised Statutes which authorizes orders for avoiding unnecessary costs or delay. Plainly, the indictments were not consolidated, because the record shows that there were separate verdicts and cumulative sentences, so that each proceeding retained its identity. The entire effect of the order was only that the various indictments were tried together by the same jury.

During the progress of the trial Fisher pleaded guilty. The record also contains the following:

'In the impaneling of the jury the defendant Betts challenged Jurymen Goodnough, Hall, and Sears. Before Juryman Tobey was sworn, he challenged him, claiming that he had a right to twenty-seven arbitrary challenges. The government objected. The challenge was disallowed, and the defendant Betts duly excepted.'

The nature of the fraudulent scheme alleged against Betts and Fisher, and the substance of the case in reference thereto, are shown sufficiently by the following extract from indictment 1:

'The jurors for the United States of America, within and for the district of Massachusetts, upon their oath, present that before and at the time of the commission of the offence hereinafter charged, John M. Fisher and Frederick E. Betts did intend to devise and did devise a scheme and artifice to defraud, which scheme and artifice to defraud was as follows, that is to say, that they should falsely pretend and represent to divers persons with whom they should communicate that they, said Fisher and Betts, were engaged in carrying on a regular banking and brokerage business at Boston in the District of Massachusetts, and that they should be published advertisements and by communications through the United States mails falsely pretend and represent to the public and to persons to whom they should send circulars and letters that they, said Fisher and Betts, were engaged with a large New York firm in the business of manipulating stocks, that is to say, in the business of buying stocks and using means to enhance the prices and market value of stocks so bought, and when said stocks should have reached a higher price so that a profit over the purchase price could be had, selling said stocks for the benefit of persons who should entrust them, said Fisher and Betts, with money to pay a part or the whole of the purchase price thereof; that for the purpose of buying and selling stocks and manipulating them as aforesaid, a pool or special deal would be formed to buy and sell a certain stock listed on the New York Exchange to the purchase of which said listed stock by means of said pool or special deal the persons to whom the circulars and letters aforesaid should be sent would be asked and urged by them, said Fisher and Betts, to contribute money, and for the purpose of effecting the purchase of said listed stock, to pay over money to them, the said Fisher and Betts; whereas in truth and in fact they, said Fisher and Betts, were not engaged in carrying on a regular banking and brokerage business at said Boston or elsewhere; and whereas in truth and in fact they, said Fisher and Betts, were not engaged with any New York firm in the business of manipulating stocks, and that they, the said Fisher and Betts, did not intend to be in any way connected with any pool or special deal to be formed to buy and sell any stock listed on the New York Exchange, and no such pool or special deal had been formed or would be formed; all of which they, the said Fisher and Betts, at all the times aforesaid well knew; with the view and intent of them, said Fisher and Betts, to obtain and get into their hands and possession money and property of such persons as might entrust money and property to them for the purchase of stocks by means of a pool or special deal as aforesaid, and to convert the same to their, said Fisher and Betts', own use and benefit, without purchasing any stocks whatever and to cheat and defraud such persons as might entrust money and property to them, said Fisher and Betts, for the purchase of stocks out of the money so entrusted.' Although there were nine indictments and nine judgments, we have here only one writ of error. No question has been made on that score, and we refer to it only in order that we may not be assumed to acquiesce in this method of procedure. Betts filed a motion to quash, containing a large number of specifications, which was overruled, and on which overruling a bill of exceptions was allowed. The law is settled that, with exceptional cases, where the federal courts have conformed themselves to the ancient local practice, error does not lie to the overruling of such a motion. United States v. Gooding, 12 Wheat. 460, 478, 6 L.Ed. 693, and many subsequent decisions of the Supreme Court. We, however, pass that by, because the objections made to the indictments on the motion to quash are mainly of that class which, if valid, would not be cured by verdict, and therefore may be assigned for error independently of any demurrer or motion in arrest of judgment.

The number of errors formally assigned in this record is 37, but, in view of the fact that some of the errors thus assigned cover numerous distinct propositions, a proper enumeration would be 58. Following these through into the brief for the plaintiff in error, we find a number discussed in the following manner:

'The court should have given apt instructions concerning the requests stated in the twenty-first, twenty-second, twenty-third, and twenty-fourth assignments of error. It appeared in evidence (record, page 16) that some of the witnesses called by the government knew that they were speculating in the stock market. Other witnesses called by the defendant (record, pages 68 and 69) distinctly stated that they bought and sold stocks upon margin. There was such evidence in the case that the jury might well have found concerning some of the counts in the indictments that the defendant was not guilty, had the trial court given the substance of these requests.'

This is all that is said about these four alleged errors. It is apparent that this throws upon the court the burden of searching out the law and the record, and of putting together the several portions of the latter for the purpose of sifting out the propositions on which the plaintiff in error relies whatever they may be. This is a burden which the court will not assume. An example of another class which may also be passed by us is found in the...