Cochran v. United States, 8673

• Decision Date: 05 May 1930
• Docket Number: 8691.,8674,No. 8673,8678,8673
• Citation: 41 F.2d 193
• Parties: COCHRAN et al. v. UNITED STATES, and three other cases.
• Court: U.S. Court of Appeals — Eighth Circuit

41 F.2d 193 (1930)

COCHRAN et al. v. UNITED STATES, and three other cases.

Nos. 8673, 8674, 8678, 8691.

Circuit Court of Appeals, Eighth Circuit.

May 5, 1930.

COPYRIGHT MATERIAL OMITTED

T. D. Sheehan (John J. Keefe, of St. Paul, Minn., on the brief), for appellants Naegele, Rocheford, Tobias, Meyer, and Shiblin.

Arthur Schaub, of St. Paul, Minn., for appellant Kinderwater.

Charles N. Dohs, of St. Paul, Minn., for appellants Cochran and Ritter.

Einar Hoidale and Paul J. Thompson, both of Minneapolis, Minn. (John F. Dahl, of Los Angeles, Cal., and Thompson, Hessian & Fletcher, of Minneapolis, Minn., on the brief), for appellant Nelson.

Lafayette French, Jr., Sp. Asst. to Atty. Gen. (Lewis L. Drill, U. S. Atty., of St. Paul, Minn., on the brief), for the United States.

Before BOOTH and GARDNER, Circuit Judges, and OTIS, District Judge.

GARDNER, Circuit Judge.

Appellants, who are designated herein as defendants, were, with certain others, indicted on the 9th of November, 1927, in the District Court of the United States, for the District of Minnesota, for violations of sections 215 and 37 of the Criminal Code (18 USCA §§ 338 and 88), in an indictment containing twenty-three counts. They were charged with having devised a scheme to obtain money and property by false pretenses in connection with the sale of stocks, bonds, and notes of the Volkszeitung Printing & Publishing Company, the Hardstone Brick Company of Duluth, Inc., and the Hardstone Brick Company of Little Falls, Inc., and in carrying it out to have used the United States mails. The indictment occupies forty printed pages of the printed record. The twenty-third count charged a conspiracy of the same defendants under section 37 to violate section 215 of the Criminal Code (18 USCA §§ 88, 338), but prior to trial, on motion of the United States District Attorney, this conspiracy count was withdrawn, and the indictment as to that count was, on order of the court, dismissed.

The sufficiency of the indictment was challenged by demurrers, which were overruled. The defendant Andrew E. Nelson made a motion for separate trial, which was denied; the defendant Alfred C. Pollman entered a plea of guilty; the court directed a verdict of not guilty as to the defendant Magnus Martinson; and the jury returned verdicts of not guilty as to certain other defendants, but returned verdicts of guilty as to one or more counts of the indictment as to the remaining defendants, who are appellants herein. Motions for new trial were made by the convicted defendants, which were overruled, and appeals were thereupon perfected to this court from the judgments of conviction. The appeals have been taken in some instances in groups and in others individually, and with each petition for appeal was filed assignments of error. Later there was filed in this court on behalf of all appellants, an instrument designated as an "Amended Additional and Supplemental Assignments of Error." This document assigns 135 alleged errors, and as printed occupies 127 pages of the record, while the separate assignments occupy many pages in addition thereto. In a brief of 493 pages, filed on behalf of all appellants, there is embodied assignments of error occupying 37 pages, while separate briefs filed contain ten pages of additional assignments. It will, of course, be impossible separately to consider all of these assignments of error. The words of Judge Rogers of the Second circuit, in Fitter et al. v. United States (C. C. A.) 258 F. 567, 569, seem peculiarly fitting in the instant case. It is there said: "He alone has sued out a writ of error, and there are 62 assignments of error, which occupy 12 printed pages of the record. We think this a good occasion to call attention of counsel to what the Supreme Court has said on several occasions in reference to the practice of burdening the record with dragnet assignments of error. In Phillips & Colby Construction Co. v. Seymour, 91 U. S. 646, 23 L. Ed. 341, the assignments of error were 10 less than the number found in this case, and the court said: `The object of the rule requiring an assignment of errors is to enable the court and opposing counsel to see on what points the plaintiff's counsel intend to ask a reversal of the judgment, and to limit the discussion to those points. This practice of unlimited assignments is a perversion of the rule, defeating all its purposes, bewildering the counsel of the other side, and leaving the court to gather from a brief, often as prolix as the assignments of error, which of the latter are really relied on. We can only try to respond to such points made by counsel as seem to be material to the judgment which we must render.' In Central Vermont Ry. Co. v. White, 238 U. S. 507, 35 S. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252, the court recurred to the subject again, quoting from the earlier case which we have cited. The practice condemned is not conducive to the better administration of the law, and embarrasses, rather than promotes, the cause of justice."

1. The indictment, so far as it relates to a fraudulent scheme to obtain money by false pretenses, omitting formal parts, charged that the defendants "did devise a scheme and artifice for obtaining money and property by means of false and fraudulent pretenses, representations and promises, from a class of persons, some one of whom is named in each of the counts of this indictment from and including the twenty-second count thereof, as the addressee of a letter pertaining to said scheme and artifice, but which class was and is so numerous that all the persons composing it cannot as a practical matter be named herein, while at the same time said class may be and is described as being composed of persons mostly of German descent, then residing in said district and division and in other parts of the State of Minnesota, as well as in other states, mostly those adjacent or near to said State of Minnesota, who were respectively desirous of investing their money in shares of stock, in bonds and in promissory notes which had and would have value because of the good financial standing, prospects and ability of the business concerns issuing and putting such securities forth and because of the good earning capacity of such concerns and their ability and intention to pay from the earnings of said concerns dividends and interest upon said securities to the holders thereof, which said scheme and artifice is here described as being one for obtaining the money and property of said persons by solicitation of such persons, directly and through agents, and by means of divers newspaper advertisements, and divers letters, and inducing such persons by such means to open correspondence with said defendants through the postoffice establishment of the United States, and to send and pay their money and property respectively to said defendants, under the corporate names of the Volkszeitung Printing and Publishing Company, Hardstone Brick Company of Duluth, Incorporated, and Hardstone Brick Company of Little Falls, Incorporated, for purchasing and securing the capital stocks, bonds and promissory notes of those corporations for investment, and by making pretenses, representations and promises in connection with such solicitation and correspondence to the effect that such stocks, bonds and notes were and would be respectively good and safe investments because of the financial worth of said corporations respectively, because of their good management, business ability and prospects, and because of the ability and intention of said corporations respectively to pay dividends and interest to such investors; all of which said money and property said defendants, according to said scheme and artifice, upon so obtaining the same, would convert to their own use and benefit, and not to any use or benefit of any of said persons so sending and paying the same to them, the said defendants; and which said pretenses, representations and promises, when so made to said persons, as said defendants and each of them then well knew, would be false and fraudulent in this, that none of said corporations had property, credit or business, or prospective business, warranting their issuing or putting forth such securities; in this, that neither said corporations nor said defendants were or would be able to, or intend to, or would, pay any bona fide dividends or interest, to any of such persons so investing their money, or any dividends or interest from earnings of said corporations, on account of such investments or any of them; and in this, that, for these reasons, said stocks, bonds and notes would be practically worthless; whereby each of said persons so sending and paying their money and property to said defendants as aforesaid would, according to said scheme and artifice, lose and be defrauded of the same." The indictment then proceeds to allege that the defendants, for the purpose of executing the scheme, unlawfully and feloniously placed in the post office of the United States, to be sent and delivered by the Post Office Department of the United States, twenty-two certain letters set out in separate counts of the indictment. In all the subsequent counts, that portion of the first count, which describes the scheme and artifice, is incorporated by reference. It is claimed that the indictment does not set out with sufficient particularity the scheme and artifice which it is alleged defendants had devised, to advise them of the nature of the accusation against them. The use of the post office establishment in the execution of the alleged scheme to obtain money by false pretenses is the gist of the offense which the statute denounces, and not the scheme to defraud. Brady v. United States (C. C. A.) 24 F.(2d) 405, 59 A. L. R. 563; Barnard v. United States (C. C. A.) 16 F.(2d) 451. While the scheme or artifice must be sufficiently set forth so as to advise the defendants with the particulars thereof, yet the...