Chambers v. United States

• Decision Date: 30 October 1916
• Docket Number: 4600.,4599
• Citation: 237 F. 513
• Parties: CHAMBERS v. UNITED STATES. RUSSELL v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

237 F. 513

CHAMBERS v. UNITED STATES.

RUSSELL v. SAME.

Nos. 4599, 4600.

United States Court of Appeals, Eighth Circuit.

October 30, 1916

[Copyrighted Material Omitted]

R. R Brewster, of Kansas City, Mo. (Paul R. Stinson, Brewster Kelly, Brewster & Buchholz, and E. H. Busiek, all of Kansas City, Mo., on the brief), for plaintiffs in error.

S. R. Rush, Sp. Asst. Atty. Gen. (Francis M. Wilson, U.S. Atty., and William G. Lynch, Asst. U.S. Atty., both of Kansas City, Mo., on the brief), for the United States.

Before SANBORN and CARLAND, Circuit Judges, and TRIEBER, District judge.

SANBORN Circuit Judge.

Edward C. Chambers and Ernest L. Russell were indicted for devising a scheme to defraud, intending to execute it by means of correspondence through the post office department of the United States, and for executing that scheme by means of such correspondence through that department. They were tried, convicted, and sentenced, and these writs of error were sued out to challenge the legality of the proceedings at the trial.

The scheme alleged was to sell small tracts of land of from 10 to 80 acres each, which were under water and incapable of cultivation, to each of many intending occupiers and cultivators, for $65 an acre, in installments of $1 an acre per month, by means of false representations as to the character, fertility, and value of the land, and as to its availability for profitable farming operations, and for occupation by comfortable homes. The scheme was devised and executed between January 8, 1909, and July, 1913. In December, 1910, Chambers made a contract to buy of the state of Florida on the installment plan 50,000 acres of land for the price of $15 an acre. He, his agent Russell, and his other agents, proceeded by representations and statements to sell this land to purchasers for $65 an acre, payable in installments of $1 an acre a month. The land he bought and sold was situated in the Everglades of Florida southeast of Lake Okeechobee, between that lake and the ocean. The distance from the lake to the ocean through or around these lands is about 50 or 60 miles. The land from time immemorial has been, and with the exception of comparatively small tracts, contiguous to or within half a mile or a mile of one of the canals that have been dug by the state since 1908, still is, under water to a depth of from three inches to several feet, so that very much of the larger part of the tracts sold to purchasers has always been, and still is, incapable of occupation and use for farming purposes. The lake is a few feet higher than the ocean, the land slopes from the lake to the ocean, with a fall of from two to three inches to the mile, and the water upon it is inclosed by a rock rim, which reaches around it near the shore. Its access to the ocean is through a few gaps existing or made in this rim. Lake Okeechobee receives water from a watershed to the north and west of it 7 1/2 times its area, and one of the engineers testified that it was the largest fresh-water lake wholly within the United States. In this region the annual rainfall is very large, from 20 to 80 inches, and the water from the watershed north and west of the lake overflows it, spreads over the land to the glades southeast of it, where Chambers' 50,000 acres are, and generally keeps it under water. In addition to the water from the watershed northwest of the lake, there is a very large precipitation upon the land itself.

Two or three years before Chambers made his contract of purchase the Florida Fruit Lands Company and the state of Florida conceived a scheme and entered upon the execution of it for the state to sell some of this land and to expend the proceeds of the sale in draining it. Accordingly the state sold 184,000 acres to the Fruit Lands Company for $2 an acre, made a contract with a construction company to dig four ditches about 6 miles apart through this 184,000 acres and through or near Chambers' land from the ocean to or toward Lake Okeechobee, a distance of 50 or 60 miles. Chambers was one of the agents of the Fruit Lands Company to sell its land. The land of the Fruit Lands Company was successfully sold by the end of the year 1910. In December, 1910, Chambers purchased his 50,000 acres and paid $50,000 in cash, his first installment of the purchase price. At that time the construction company had commenced at the ocean and was digging the ditches northwesterly towards the lake and Chambers' land under a contract to complete them by July, 1913. Chambers and his agents, in their endeavors to sell the land to residents in the country surrounding Kansas City, where his general office was located, made many persuasive representations, such as that the reclamation of the Everglades was assured, that oranges, grape fruit, lemons, limes, avocadoes, pawpaws, persimmons, mulberries, figs, guavas, beans, cabbages, tomatoes celery eggplant, bananas, the plantain, sugar cane, cotton, tobacco, rice coffee, hemp, flax, Indian corn, barley, hops, buckwheat, cassava, pineapples, strawberries, watermelons, cantaloupes, peaches, pears, citrons, squash, okra, peas, cucumbers, cauliflower, lettuce, onions, sweet and white potatoes, and peanuts could be raised on Chambers' land when it was drained, and that it would be drained and ready for cultivation and occupation by October, 1912, or October, 1913; that the soil was black muck; that it was the richest soil in the United States, being worth over $6 a ton as a fertilizer; that no fertilizer was required to raise good crops upon it; that parties cultivating such soil cleared $300 to $800 an acre growing garden truck, while their grape fruit and orange groves were coming into bearing; that on December 26, 1912, Chambers' company had enough farmers on his land to demonstrate to the people of the United States what could be done on Everglade land. There was substantial evidence that these representations and others were made, and that these were false; but the testimony was conflicting, and there was substantial evidence that some of these representations were true. Each of the defendants testified that he believed them to be true when they were made, and that he never had any intention or purpose to deceive or mislead the purchasers, and the defendants produced persuasive evidence in support of their testimony. At the close of all the evidence each of the defendants requested the court to instruct the jury to return a verdict in his favor, and the refusal of the court to give this instruction is the first alleged error urged upon our consideration.

It is not claimed that there was not substantial evidence that the alleged representations which have been recited were made, and that they were false, although it is insisted that the weight of the evidence was that they were true, so that it is practically conceded that the question whether or not these representations were made by means of the mails to their purchasers by the defendants, and whether or not they were true, were questions for the jury, and not for the court, and these questions are here dismissed.

But counsel for the defendants invoke the established rule that, where all the substantial evidence is as consistent with innocence as with guilt, it is the duty of the appellate court to reverse a judgment of conviction (Harrison v. United States, 119 C.C.A. 78, 200 F. 662; Isbell v. United States, 142 C.C.A. 312, 317, 227 F. 788, 793), and they insist that there was no substantial evidence of any facts inconsistent with the innocence of the defendants of knowledge of the falsity of any of their material representations, or with their innocence of any intention to deceive or defraud the purchasers from them.

'The rule is that, where all the substantial evidence was as consistent with innocence as with guilt, it is the duty of the appellate court to reverse the judgment against the defendant-- not where there was a preponderance of the substantial evidence, or witnesses of the greater credibility in favor of his innocence, but where there was no substantial evidence, no substantial testimony nor credible witness whatever, of any facts inconsistent with the innocence of the accused. This is the only question the court is required or permitted to determine under this rule, and where there was any substantial evidence inconsistent with the innocence of the accused, although it may have been contradicted, * * * the weight of the evidence, the credibility of the witnesses, and the guilt or innocence of the defendant are left to the determination of the jury. ' Isbell v. United States, 142 C.C.A. 312, 317, 227 F. 788, 793.

The question here, therefore, is whether or not there was any substantial evidence in this case of facts which were more consistent with the intention of the defendants to deceive and defraud the purchasers than with their innocence of that intention. There is a vast mass-- there are two large printed volumes-- of evidence. There is neither time nor space to recite or review it. A perusal of it renders it certain that the defendants, and all who knew the land they sold, must have known that it was and would be worthless for farming or habitation unless it was thoroughly drained. The defendants knew that the canals under contract would be about six miles apart. There was substantial evidence, the testimony of one of the board that sold the land to Chambers, that at the time of the sale to him there was a conversation between the members of the board and Chambers, the effect of which was that the canals which the state was digging would be sufficient to drain the lands so far as the main arteries were concerned, but that the owners of the land would have to dig the subditches or laterals; that the state did not contemplate...