Colburn v. United States

• Decision Date: 28 April 1915
• Docket Number: 4127.
• Citation: 223 F. 590
• Parties: COLBURN et al. v. UNITED STATES. [d]
• Court: U.S. Court of Appeals — Eighth Circuit

223 F. 590

COLBURN et al. v. UNITED STATES. ^[d]

No. 4127.

United States Court of Appeals, Eighth Circuit.

April 28, 1915

Chester H. Krum, of St. Louis, Mo., for plaintiffs in error.

Homer Hall, Asst. U.S. Atty., of St. Louis, Mo. (Arthur L. Oliver U.S. Atty., of St. Louis, Mo., on the brief), for the United States.

Before SANBORN, ADAMS, and SMITH, Circuit Judges.

ADAMS Circuit Judge.

Plaintiffs in error were convicted in the court below of devising a scheme to defraud and making use of the postal establishment of the United States in its execution. There were two indictments, containing in the aggregate 22 counts. One of them was based on section 5480 of the Revised Statutes, and the other on section 215 of the Penal Code (Act March 4 1909, c. 321, 35 Stat. 1130 (Comp. St. 1913, Sec. 10,385)) and these were consolidated for the purposes of a trial.

The scheme laid in each count of the indictments was that the defendants should secure in their own names or in the name of a corporation, the Washington & Choctaw Land Company organized by them and of which they were the chief executive officers, the ownership or control of large tracts of worthless land, and should then falsely pretend and represent to the public, by advertisements in newspapers, letters circulated by mail, and otherwise, that the land was without marshes, swamps, stumps, or brush that would interfere with successful cultivation; that it was rich and fertile and of rapidly increasing value, capable of producing a great variety and large quantities of grains, fruits, nuts, and vegetables; that it presented an attractive colonization scheme, was tributary to a railroad carrying freight and passengers throughout its extent, which would furnish free passage and transportation to all locators; that it was well adapted to home building; that townsites were platted here and there on the land, which were destined to develop rapidly into large and flourishing cities, and other like glittering representations. It is then alleged that all these pretensions and representations were so made with the hope and expectation that the credulous, to whom they or some of them might come, would be attracted by their allurements and induced to purchase tracts of land and pay the price asked for the same, and thus enable defendants to convert the money to be received to their own use without giving any substantial consideration therefor.

The indictments then falsified most of these representations, and alleged, among other things, that, instead of the land being rich, fertile, and productive, and of great or rapidly increasing value, readily producing large quantities of grains, fruits, nuts, and vegetables, as represented, it was sterile, unproductive, and valueless for raising grains, fruits, nuts, and vegetables, and that it was incapable of being made fertile, productive, or valuable, and was not worth to exceed $2 per acre. The indictments in each count thereof alleged that defendants, in executing their scheme, mailed a letter which was there set out in full.

The legal sufficiency of the indictments was not questioned by demurrer or otherwise, but on arraignment the defendants entered a plea of not guilty, and the trial on the issues of fact so joined proceeded; in its progress their counsel admitted the mailing of the several letters at the post offices and to the addressees alleged in the indictments to have been mailed in and for executing the alleged scheme to defraud. Many witnesses were produced on the part of the government, and many pamphlets, pictures, advertisements, letters, and other literature, proved to have been prepared or authorized by the defendants, were also shown in evidence, and the defendants on their part produced witnesses and other evidence. Without undertaking the laborious and useless task of analyzing this testimony, it is sufficient to say that that produced on behalf of the government, taken in the aggregate, tended to prove the devising by the defendants of the scheme to defraud as alleged in the several counts of the indictments, and the evidence produced by the defendants tended to disprove the same.

The cause was then submitted to the jury, and a verdict of guilty followed on each of the 8 counts of the first indictment and on each of the 14 counts of the second indictment, and the court sentenced each of the defendants on the first mentioned indictment, founded on section 5480 of the Revised Statutes, to pay a fine of $500 and to be imprisoned in the United States penitentiary at Leavenworth, Kan., for the period of 18 months, and on the second mentioned indictment, founded on section 215 of the Criminal Code, to pay a fine of $500 and be imprisoned in the United States penitentiary at Leavenworth, Kan., for a period of 5 years. A motion in arrest of judgment was then filed by defendants, assigning two reasons therefor: First, that the indictments did not state facts sufficient to constitute an offense; and, second, that they failed to sufficiently advise the defendants of the charge they were called upon to meet, and did not contain averments sufficient to enable them to intelligently prepare for a trial. This motion having been overruled, the defendants sued out this writ of error.

They assign and specify for error that the court erred in denying their motion in arrest of judgment, in denying their motion for an instructed verdict in their favor, in its charge to the jury, in refusing certain requests for instructions, and in its rulings on the introduction of evidence. It is argued that the indictments are bad for repugnancy, in that they contain two inconsistent allegations of substance, and for that reason fail to so advise defendants of the nature and cause of the accusation against them as to enable them to prepare their defense. It is said this repugnancy appears in the allegation that one of the steps in the defendants' scheme to defraud was to acquire a tract of worthless land, and in a later allegation that the land so to be acquired was worth at least $2 an acre.

In view of our former opinions in cases involving violation of section 5480, we may confidently summarize the law applicable to such cases as this as follows: (1) The gist of the offense denounced by the statutes involved in this case is the mailing of a letter or other mentioned article in the execution or attempted execution of a scheme to defraud. (2) The devising of a scheme is a necessary prerequisite or condition to the commission of the offense, but in itself constitutes no federal offense. (3) The mailing of the letter or other mentioned article, being the gist of the offense must therefore be pleaded in an indictment with great certainty as to time, place, and circumstance, so as thereby to advise the accused of the exact nature and cause of the accusation against him, in order that he may properly prepare his defense and be able to make use of a conviction or acquittal as a protection against a further prosecution for the same offense. substance, and must be described with certainty sufficient to show its existence and character, and to fairly acquaint the accused with the particular fraudulent scheme charged against them, the scheme itself need not be pleaded with all the certainty as to time, place, and circumstance requisite in charging the gist of the offense, the mailing of the letter or other article, in execution or attempted execution of the scheme. Brooks v. United States, 146 F. 223, 76 C.C.A. 581; Lemon v. United States, 164 F. 953, 90 C.C.A. 617; Horn v. United States, ...