Bowers v. United States

• Decision Date: 04 September 1917
• Docket Number: 2571.
• Citation: 244 F. 641
• Parties: BOWERS v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

244 F. 641

BOWERS v. UNITED STATES.

No. 2571.

United States Court of Appeals, Ninth Circuit.

September 4, 1917

Rehearing Denied October 8, 1917.

In an indictment containing three counts, Clarence P. Bowers and others were charged with a violation of section 215 of the Penal Code of 1910. Bowers was convicted under the second count, and asks review under writ of error. The indictment was filed January 10, 1913.

Stated in a brief way, the scheme charged to have been formed before February, 1910, was that the persons intended to be defrauded should be communicated with by mail by Bowers and the others through the medium of a pretended corporation, the C. P Bowers & Co., and certain letters. papers, and advertising matter containing false and fraudulent representations, and statements concerning the corporation and its business, were to be sent to them by use of the mails. Bowers pretended to be the president, and other defendants were to be represented as the other officers of the corporation, but it is alleged that, in fact, the pretended corporation was not organized under the law of any state or of the United States, but C. P Bowers & Co. was the name of a fraudulent corporation, and the guise under which Bowers and his associate defendants carried on the scheme. Bowers and the others were to advertise to persons to be defrauded that C. P. Bowers & Co. owned 630 acres of land near Tampico, Mexico, and had 'a perfect warranty deed' to said land, and that the title thereto was 'free from any possible defects'; that part of the land was cleared and planted; that machinery had been bought to cultivate part of the land to bananas; that banana trees had been planted; that bananas would be planted also for the use of the corporation, and that 300 acres were to be sold to persons intended to be defrauded, for $200 per acre in cash or in installments; that immediately upon payment of the full purchase price of each acre, the C. P. Bowers & Co. would give the purchaser immediate possession and title, and would cultivate the land and plant banana trees, and that the purchaser would have certain quantities of bananas for each acre of ground; that the corporation would sell the bananas and, after deducting specific sums for services in marketing and for reimbursement, the balance of the sale price would be sent to the purchaser of the land; that the purchasers could pay a first installment of 12 1/2 per cent. of the purchase price at the rate of $200 per acre, and take 30 days within which to investigate the land, and if at the end of 30 days the purchaser did not wish to take the land the C. P. Bowers & Co. would return the purchase money. It is alleged that all these representations and publications were fraudulent, and part of the scheme to defraud, and were to induce persons, in reliance upon the advertisements and publications, to buy portions of the land pretended to be owned by C. P. Bowers &amp Co., and to pay Bowers and his associates and to the pretended corporation large sums of money, which sums Bowers and other defendants would wrongfully convert to their own use. It is alleged that when the scheme was devised Bowers knew that it was all fraudulent and that C. P. Bowers & Co. did not own the land described, and did not have a perfect or warranty deed to the 630 acres of land, and did not have any title to the land which was free from any possible defects, or any title; that Bowers and the other defendants never had title by perfect warranty deed or otherwise to 630 acres of land described, in Mexico or anywhere else in Mexico, in excess of 50 acres; that none of the land was cleared or planted; that no machinery for cultivation had been bought; that there had not been the number of banana shoots planted that were said to have been; that the defendants did not intend to clear and cultivate any land, or to give the purchaser the possession or title contemplated by the advertisements, and did not intend to pay any money over to the purchaser of the land, or to refund any installments to purchasers not desiring to take the land; that the land was not worth $200 per acre, or any other sum in excess of $10 per acre. It is charged that, in order to carry out the scheme as devised, they fraudulently mailed a letter dated February 19, 1910, to T. E. Hughston, at Pomona, Cal., in which Bowers wrote to him that he found it impossible to tell him exactly when he would have a deed for the seven acres of land which Hughston had bought.

Newton J. Skinner, Carl N. Skinner, Earl Rogers, and C. E. Williams, all of Los Angeles, Cal., for plaintiff in error.

Albert Schoonover, U.S. Atty., and J. Robert O'Connor and Clyde R. Moody, Asst. U.S. Attys., all of Los Angeles, Cal.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District judge.

HUNT Circuit Judge (after stating the facts as above).

Counsel for defendant has earnestly contended that the evidence was insufficient to sustain a verdict. One of the witnesses for the government testified to this effect: That he was a farmer and mechanic, and about 1909 he bought seven acres of this banana land from C. P. Bowers & Co.; that his transaction was with C. P. Bowers, to whom he paid $1,000 on the purchase; that there was $400 still due, and he sent an agent to Bowers to endeavor to buy only five acres, but failed to adjust the matter as desired, and thereafter paid the $400 still due to Bowers; that he dealt principally with Gillespie, an agent of Bowers; that he received certain circulars through the mail before he made the purchase and a contract, and that he discussed the contract with Bowers, to whom he paid the money in June or July, 1909. The contract is a receipt of a deposit to secure the described quantity of land in the 'C. P. Bowers & Co. Banana Plantation,' etc., subject to certain conditions. It is recited that, payment having been made, the property will be granted 'by good and sufficient deed of conveyance, the above-named lessee grantor furnishing unlimited certificate of title showing title to said property free and clear of incumbrance, within 10 days from date. ' The contract is signed 'C. P. Bowers, Pres.' To the contract was attached a 'rider,' wherein C. P. Bowers & Co. agree to plant the acreage described, within a month from date of the contract, to banana shoots, not less than 200 to the acre, and irrigate, maintain, and market the first year's crop without additional expense other than payment in full of the purchase price, and to continue marketing the crop at special rates. We quote from the testimony of the witness:

'Well, I paid him $400, and he acknowledged receipt of it, and then I says, ' This circular says that as soon as I make the last payment on it you will hand me the deed. I would like to have the deed.' ' Well,' he says, 'I can't do it just now.' ' Well,' I says, 'Why?' 'Well,' he says, 'it takes some time to get a deed made in Mexico.' ' Well,' I says, 'why did you print it in your circulars?' and he says, 'Oh, you ought to understand anything in a circular ain't law and you don't have to go by it. We have to go by things that we can.' ' Well,' I says, 'how long before you can get it?' ' Well,' he says, 'I don't know, it might take two or three months.' I says, 'I am going away; I have done made my arrangements to go back to Georgia, and I would like to know about the matter."

This witness further said that Bowers told him that Gillespie was his agent. On July 16, 1909, Bowers wrote to Hughston that he was entitled to 7 acres in the banana plantation, and said:

'Your deed for the same will be ordered up with the next allotment of these documents, and presented to you for your signature just as soon as practical.'

On December 17, 1909, Bowers wrote Hughston that he hoped to have the deed for the 7 acres soon, but he doubted whether he could give to Hughston a 'river frontage as originally planned,' unless he took up 10 acres, and would like to know if Hughston desired the additional 3 acres. On December 27, 1909, he wrote to Hughston that the deed for the 7 acres would be issued and forwarded for his signature 'just as soon as practical,' and added that it sometimes took as long as 9 or 10 months to have the documents issued recorded, etc., in that country. On February 19, 1910, Bowers wrote him that it was impossible for him to tell him exactly when he would have the deed for the 7 acres, that he was hurrying things, 'and rest assured that I will have it in your hands at the earliest possible moment. ' Mr. Hughston testified that he never received any deed, but about April, 1914, a month before the trial of the defendant was begun, he received a letter and deed for 7 acres and turned the papers over to the district attorney. Witness said the deed did not cover the land he bought, nor did it obligate Bowers to cultivate as required by the original contract made. On cross-examination he testified that there was a mistake about his having made a contract to buy 10 acres; that Gillespie put him down for 10 acres, but that he didn't want that much, and after a little squabble he adjusted the matter with Bowers by agreeing to take 7; that he called on Bowers about the delivery in the matter of the deed, and Bowers told him that he was having trouble about getting the deed from Mexico; that he never accepted the deed sent to him in April preceding the trial; that Gillespie told him C. P. Bowers & Co. was a joint-stock company. One of the circulars which the witness said he read set forth in elaborate terms that C. P. Bowers & Co. owned 630 acres in 'Tropical Mexico,' and would sell 10 acres on an easy installment plan, cultivate it, market the product, and remit the profit, less only a fair discount for acting as sales agents. The...