Charles v. United States

• Decision Date: 04 February 1914
• Docket Number: 1200.
• Parties: CHARLES v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

213 F. 707

CHARLES v. UNITED STATES.

No. 1200.

United States Court of Appeals, Fourth Circuit.

February 4, 1914

[Copyrighted Material Omitted]

This is a criminal action tried in the United States District Court for the District of South Carolina. Two indictments were found against the plaintiff in error, hereinafter referred to as 'defendant,' charging him with using the United States mails for the purpose of fraud in violation of section 215 of the Criminal Code of the United States. Two cases were tried together at the same term the indictments were found and resulted in a verdict of guilty in each. For convenience we will refer to them as Nos. 26 and 27; these being the respective numbers given them on the docket in the lower court.

The indictment No. 26 charged six separate and distinct offenses in separate counts, but the grand jury found no bill on the fifth count. The scheme alleged in each count was, in substance, that the plaintiff in error, using letter paper with the letter head, 'City Social Club, L. M. Charles Proprietor,' wrote and mailed an order for a shipment of whisky to be sent to him or the City Social Club, and accompanied the order with his personal check, and thereby represented that he had sufficient funds in the bank to meet the check, when as a matter of fact he had no funds in the bank, intending thereby to induce the shipper to ship the whisky, so that the plaintiff in error could obtain possession of it and convert it to his own use and thereby defraud the shipper.

In case No. 27 the scheme to defraud alleged is that the defendant ordered 22 drums of liquor from E. B. Gibson of Chattanooga Tenn., to be shipped to Walter Miller at Pride, S.C. (a small railroad station near Union, S.C., at which latter place defendant lived and carried on his business). The whisky was to be shipped in four lots with one bill of lading for each lot. Two were for 10 drums each and the other two for one drum each.

The defendant requested that each bill of lading be attached to a separate draft on him and sent to the Citizens' National Bank of Union, S.C., for collection. Drafts amounting to $284 were attached to the two bills of lading for 10 drums each, and the draft attached to one of the bills of lading for one drum was for $26.50, and the other was for $28.50. Defendant paid the two drafts for $26.50 and $28.50, respectively, thereby obtaining possession of the bills of lading attached thereto.

That the bills of lading attached to the drafts paid contained the number of drums as set out only in figures, to wit, '1'; the weight was only given in figures, to wit, '200'; that defendant obtained these bills of lading and changed them by placing a cipher after the figure '1' so as to make the number '10' and a cipher after the figure '200' so as to make the weight '2,000' pounds; that by this scheme defendant obtained delivery of one of the 10-drum shipments on one of the bills of lading; that, upon refusal of the railroad to deliver the other shipment owing to the appearance of the bill of lading, defendant in furtherance of the scheme to defraud mailed the same to Gibson with the request that a new bill of lading be sent him; that a duplicate bill of lading calling for one drum of liquor was sent to him by mail; that upon receipt of this bill of lading it was changed so as to call for 10 drums and the defendant thereby obtained delivery of the other 10 drums.

This scheme was charged in all three counts of the indictment; the first count being that for the purpose of carrying out the scheme defendant mailed a letter to Gibson inquiring for prices, the second being that he mailed a letter with the torn bill of lading, and third that he received a letter from Gibson relative to the four shipments and drafts.

The jury returned a verdict of guilty in each case.

Defendant was sentenced to imprisonment in the penitentiary for one year and to pay a fine of $500, the sentences to be concurrent, and from which judgment the case now comes here on writ of error.

W. C. Cothran, of Greenville, S.C. (Cothran, Dean & Cothran, of Greenville, S.C., on the brief), for plaintiff in error.

Arthur R. Young, Asst. U.S. Atty., of Charleston, S.C. (Ernest F. Cochran, U.S. Atty., of Anderson, S.C., on the brief), for the United States.

Before PRITCHARD and WOODS, Circuit Judges, and ROSE, District Judge.

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

The defendant is indicted under section 215 of the Code, the material part of which, as respects this controversy, is in the following language:

'Whoever, having devised or intended to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, * * * shall, for the purpose of executing such scheme or artifice or attempting so to do, place, or cause to be placed, any letter, * * * in any post office, * * * of the United States, or shall take or receive any such therefrom, * * * shall be fined not more than $1,000, or imprisoned not more than five years or both.'

The first enactment relating to this particular subject is to be found in 5480 of the Revised Statutes (U.S. Comp. St. 1901, p. 3696). This act was amended in 1889, at which time the subject of dealing in counterfeit and spurious money and other articles was included. In 1909 Congress enacted the Criminal Code at which time the scope of the act was still further enlarged, thereby showing that it is the intention of Congress to reach any and all classes of individuals who may form the intention of using the mails for fraudulent purposes.

It was undoubtedly the purpose of Congress in the enactment of this law to prevent the use of the mails by one for the purpose of carrying out any plan or scheme to defraud another.

The assignments of error relate solely to the refusal to grant the instructions offered by the defendant, and to the charge of the learned judge who tried the case below, there being no motion to quash or demurrer filed to either indictments, nor were there any assignments of error based upon exceptions to evidence offered in the court below.

We will consider the first four assignments together; the first being as follows:

'That the court erred in refusing to instruct the jury that such a scheme or device must have been plausible and reasonably adapted to justify a person of ordinary comprehension and prudence by presenting to them the allurements of a specious and glittering promise.'

By the second it is insisted that, notwithstanding the defendant may have conceived and intended to carry out an ingenious artifice or scheme, yet if his correspondence with the parties only disclosed ordinary business propositions, not calculated to deceive the unwary, he could not be convicted under this section.

The third is to the effect that the sending of a check with an order at a time when he knew that the same would not be honored is not the kind of artifice or scheme contemplated by the statute.

Fourth. 'That the court erred in charging the jury that the proof of the scheme or artifice referred to in the statute would be supplied if the jury believed from the evidence that in the beginning the defendant intended to defraud and used the mails in effectuating that intention.'

In other words, it is contended as respects these assignments that, in order to render the defendant liable under the statute, it is necessary that there must appear more than an intention to defraud and to the use of the mails for such purpose; that the artifice or device must be of such character as to constitute a false representation-- that is, such a scheme involving allurements of a specious and glittering promise. In other words, the defendant contends that a simple, ordinary false representation would not subject one to indictment under this section.

The evidence relative to this indictment tended to show that the plaintiff in error sent the various orders and checks as alleged in the first, second, third, fourth, and sixth counts; that the whisky was shipped on the faith of the checks and delivered to him; that the checks were presented and dishonored because he had no funds in the bank; and that he never made any effort to pay for the whisky or explain the transaction. All of these transactions were in close proximity in point of time. Evidence of several similar transactions occurring about the same time was introduced to show intent. There was evidence also which tended to show that there was no such organization as the City Social Club.

In the case of United States v. Loring (D.C.) 91 F. 881, Blodgett, District Judge, said:

'The object of the law was to prevent persons having fraudulent designs on others from using the post office as a means of effecting such fraud. It need not, in my opinion, be a fraud either at common law or by statute. It is enough if it was a scheme or purpose to defraud any persons of their money.'

In the case of Wilson v. United States, 190 F. 427, 111 C.C.A. 231, the Circuit Court of Appeals for the Second Circuit held that: 'The purpose of the statute was broad enough to prevent the use of the mails to despoil the public, either by means of plain falsehoods, or by the most 'glittering, alluring and complicated contrivance."

In the case of Evans v. U.S., 153 U.S. 584, 14 Sup.Ct. 934, 38 L.Ed. 830, the defendant was charged with unlawfully procuring the surrender and delivery to himself of the funds of a national bank of which he was a director, and also there was a count of fraudulently aiding in procuring the discount of unsecured paper for the bank. That case is somewhat analogous to the case at bar. Justice Brown, who, among other things, said:

'While the

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