Brown v. United States
| Decision Date | 19 January 1906 |
| Docket Number | 2,206. |
| Citation | 143 F. 60 |
| Parties | BROWN et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
(Syllabus by the Court.)
Section 5480, Rev.St., as amended March 2, 1889, 25 Stat. 873, c. 393 (U.S. Comp. St. 1901, p. 3696), makes three matters of fact essential elements of the offense prescribed: (1) The accused must have devised or intended to devise a scheme or artifice to defraud. (2) He must have intended to effect the scheme or artifice by opening correspondence or communication with some person through the mail, or by inciting some person to open communication with him through the mail. (3) In and for executing the scheme or artifice, or attempting so to do, he must have either deposited a letter or other communication in the post office for transmission and delivery, or taken or received one therefrom.
The statute includes any scheme or artifice to defraud in effecting which it is designed to use the post office establishment as an instrument or channel of communication whether that be the sole or only part of the means to be employed in effecting it.
An indictment which states the essential elements of this offense, not merely in the general words of the statute, but with such reasonable particularity of act, intent, time place, and circumstances as will, in view of the presumed innocence of the accused, apprise him with reasonable certainty of the nature of the accusation, to the end that he may prepare his defense, as will enable him to plead his conviction or acquittal as a bar to a subsequent prosecution for the same offense, and as will enable the court to say that the facts stated are sufficient in law to support a conviction, satisfies the rules of criminal pleading; otherwise it is insufficient.
An indictment is not required to set forth matters of evidence, but only ultimate matters of fact.
Separate indictments against the same defendant may, in the discretion of the court and independently of any statute upon the subject, be tried together to avoid unnecessary delay and expense, in the interest of both the government and the accused, when the latter is not thereby confounded in his defense or otherwise prejudiced.
The provision of section 5480, Rev.St. (U.S.Comp.St. 1901, p. 3696), which limits the offenses which may be charged in a single indictment to the number of three and to such as may have been committed within the same six calendar months, does not prohibit a joint trial, as a matter of expedition and economy, of separate indictments charging in the aggregate more than three offenses covering a period of more than six months, where the defendant is accorded all the rights to which he would be entitled if the indictments were tried separately.
Edward P. Sanborn (Emmet H. Gamble and Clyde Taylor, on the brief), for plaintiffs in error.
A. S. Van Valkenburgh, U.S. Attorney.
Before VAN DEVANTER and HOOK, Circuit Judges, and LOCHREN, District judge.
Albert H. Brown, Joseph Ricker, Charles L. Ricker, and Thomas Evans otherwise called William Marvin, were jointly charged in three indictments with having deposited certain letters in the mail in the execution of a scheme or artifice to defraud. Each indictment originally contained three counts, each charging the mailing of a separate letter. Two counts, one in the first indictment and one in the second, were eliminated by a nolle prosequi, and may be disregarded. The second and third indictments related to the same scheme or artifice, and the first related to a scheme or artifice which differed from that described in the other two only in respect of some of its minor details. Both were alleged to have been designed to accomplish the same result and to have been devised on the same day. Each indictment was confined to charging offenses committed within the same six calendar months, but the three indictments, taken together, charged offenses covering a period of more than six months. Over the objections of the defendants, the three indictments were tried together. A separate verdict of guilty was returned on each of the seven counts and a single and separate sentence was given for the offenses charged in each indictment. The sufficiency of the indictments was questioned by demurrers addressed to each count, and by motions in arrest of judgment, which were overruled. No part of the evidence, or of the charge to the jury, and none of the rulings in the course of the trial have been preserved, and the only questions now sought to be presented are: Do the indictments sufficiently charge violations of the statute, and were they improperly tried together?
Section 5480 of the Revised Statutes, as amended March 2, 1889, c. 393, 25 Stat. 873 (U.S. Comp. St. 1901, p. 3696), so far as it is here material reads as follows:
Three matters of fact are thus made essential elements of the offense: (1) The person charged must have devised or intended to devise a scheme or artifice to defraud. (2) He must have intended to effect the scheme or artifice by opening correspondence or communication with some person through the mail, or by inciting some person to open communication with him through the mail. (3) In and for executing the scheme or artifice, or attempting so to do, he must have either deposited a letter or other communication in the post office for transmission and delivery, or taken or received one therefrom. If an indictment states these matters of fact, not merely in the general words of the statute, but with such reasonable particularity of act, intent, time, place, and circumstances as will, in view of the presumed innocence of the accused, apprise him, with reasonable certainty, of the nature of the accusation, to the end that he may prepare his defense, as will enable him to plead his conviction or acquittal as a bar to any subsequent prosecution for the same offense, and as will enable the court to say that the facts stated are sufficient in law to support a conviction, it satisfies the rules of criminal pleading; otherwise it is insufficient. United States v. Hess, 124 U.S. 483, 8 Sup.Ct. 571, 31 L.Ed. 516; Stokes v. United States, 157 U.S. 187, 15 Sup.Ct. 617, 39 L.Ed. 667; Miller v. United States, 66 C.C.A. 399, 133 F. 337. But it is to be borne in mind that what is required is reasonable, not absolute or impracticable, particularity of statement; else the rules of criminal pleading will be deflected from their true purpose, which is to secure the conviction of the guilty, as well as to shield the innocent. Evans v. United States, 153 U.S. 584, 590, 14 Sup.Ct. 934, 38 L.Ed. 830; Cochran v. United States, 157 U.S. 286, 290, 15 Sup.Ct. 628, 39 L.Ed. 704; Durland v. United States, 161 U.S. 306, 314, 315, 16 Sup.Ct. 508, 40 L.Ed. 709. It is also to be borne in mind that a defect in matter of substance is fatal, while a defect in matter of form only-- and this includes the manner of stating a fact-- which does not tend to the prejudice of the accused, is immaterial. Rev. St. Sec. 1025 (U.S.Comp.St. 1901, p. 720); Dunbar v. United States, 156 U.S. 185, 192, 15 Sup.Ct. 325, 39 L.Ed. 390; Rosen v. United States, 161 U.S. 29, 32, 16 Sup.Ct. 434, 40 L.Ed. 606; United States v. Clark (C.C.) 37 F. 106; United States v. Rhodes (C.C.) 30 F. 431, 434.
With these observations, we proceed to consider the sufficiency of the indictments. They are long, not entirely grammatical and seem to have been hastily prepared, but when each count is considered in its entirety, its allegations and meaning are made clear to the common understanding. Briefly stated, the charge is that the defendants 'had devised a scheme and artifice to defraud divers and sundry persons, to wit, the public generally, to be effected by opening and intending to open correspondence and communication with such persons by means of the post office establishment of the United States and by inciting such person to open communication with them * * * by means of the said post office establishment;' that the substance of the scheme and artifice was this: One of the defendants was to insert in divers and sundry newspapers advertisements notifying country merchants and the public generally that he had for trade at Kansas City, Mo., a desirable country stock of general merchandise 'and inviting correspondence' with a view to bringing about a trade of the same; that 'upon inquiries' from such persons 'as might read the advertisements' he 'was to enter into correspondence' with them 'by means of the post office establishment of the United...
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