Brady v. United States

• Decision Date: 03 January 1928
• Docket Number: No. 7788.,7788.
• Citation: 24 F.2d 397
• Parties: BRADY et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

24 F.2d 397 (1928)

BRADY et al. v. UNITED STATES.^*

No. 7788.

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, hereinafter called defendants, were charged by indictment containing three counts with violations of section 215 of the Penal Code, USCA tit. 18, § 338. They were found guilty on each of the three counts and sentenced to serve five years in the United States Penitentiary on each count, the sentences to run concurrently.

Section 215, in part reads as follows:

"Whoever, having devised or intending to devise any scheme or artifice to defraud, * * * shall, for the purpose of executing such scheme or artifice * * * place, or cause to be placed, any letter * * * in any post office, * * * or authorized depository for mail matter, to be sent or delivered, * * * or shall take or receive any such therefrom, * * * or knowingly cause to be delivered by mail according to the direction thereon, * * * any such letter, * * * shall be fined not more than one thousand dollars, or imprisoned not more than five years, or both."

The assignments of error are all directed to the sufficiency of the indictment. Since the second and third counts of the indictment are substantially like the first, in discussing the questions raised, we shall refer only to the first count of the indictment.

In their brief, counsel for defendants assign three principal reasons why count 1 of the indictment is insufficient, namely:

(1) "Because it charges a scheme to obtain money by false pretenses, and the specification does not sufficiently charge the elements of such a scheme."

(2) "Because it alleges the defendants deposited or caused to be deposited the letters in question."

(3) Because "it alleges that the pretenses were to be made to the Bank of Inman, but that the persons who were to be defrauded and whose money was to be obtained were (not the bank, but) its officers, directors, stockholders, and depositors."

Count 1 charged that the defendants, and certain other named persons not parties to this writ of error, did "devise and intend to devise a scheme and artifice to defraud A. Bartels, the Bank of Inman," and "the officers, directors, stockholders, and depositors of the Bank of Inman, * * * by obtaining money and property by means of false and fraudulent representations, pretenses and promises." It further alleged that the scheme and device was as follows: That defendants, in order to induce the Bank of Inman to purchase from the defendants two promissory notes for $3,000 each, one signed by R. M. Stout, and the other purporting to be signed by L. A. Daughty, and to induce such bank to pay certain moneys and advance certain credits to the defendants on such notes, would represent to A. Bartels, cashier of the Bank of Inman, that said notes were legal, valid, subsisting obligations of the individuals whose names were signed to such notes, and that such notes were worth their face value and would be paid in full when due by the makers thereof, and would agree that defendants would deposit with said notes in the Bank of Inman as collateral security thereto certificates of deposit of the Vernon State Bank of Vernon, Kan., each for the sum of $3,000, and would represent to such cashier that such certificates of deposit were bona fide certificates of deposit of the Vernon State Bank. It further alleged that said notes were entirely worthless, and of no value, for the reason that the one purporting to be signed by L. A. Daughty as maker was a forgery and was signed with the name L. A. Daughty by defendant James E. Brady without any authority so to do, and for the reason that R. M. Stout was financially irresponsible and would be unable to pay the note signed by him at the time the same became due, and that the certificates of deposit were not bona fide certificates of deposit issued in due course by the Vernon State Bank, but had been prepared and issued by the defendant Arthur J. Baxter without authority of such bank and without such bank receiving anything of value for the issuance thereof. It further alleged the consummation of the scheme by the false and fraudulent pretenses and means above stated, and that the Bank of Inman paid out of its assets for said notes the sum of $5,920. It further alleged that the defendants at all times knew that the representations, pretenses, and promises to be made and which were in fact made were false and fraudulent, and that they intended thereby to defraud the Bank of Inman, its officers, directors, stockholders, and depositors out of money and property.

While the formation of a scheme or artifice to defraud is an essential element of the offense defined in section 215, supra, the gist of the offense is the use of the mails for the purpose of executing or attempting to execute such scheme, and it is therefore sufficient to charge the scheme with such particularity as will enable the accused to know what is intended and to apprise him of what he will be required to meet on the trial. Horn v. U. S. (C. C. A. 8) 182 F. 721, 727; Brooks v. U. S. (C. C. A. 8) 146 F. 223, 227; Redmond v. U. S. (C. C. A. 1) 8 F.(2d) 24, 28; Foster v. U. S. (C. C. A. 6) 178 F. 165, 171. The scheme need not be pleaded with all the certainty as to time, place, and circumstance required in charging the gist of the offense. Savage v. U. S. (C. C. A. 8) 270 F. 14, 18; Gardner v. U. S. (C. C. A. 8) 230 F. 575, 578; McClendon v. U. S. (C. C. A. 8) 229 F. 523, 525; Brooks v. U. S., supra; Chew v. U. S. (C. C. A. 8) 9 F.(2d) 348, 351; Mathews v. U. S....