Colt v. United States

• Decision Date: 01 September 1911
• Docket Number: 3,508.
• Citation: 190 F. 305
• Parties: COLT v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

190 F. 305

COLT v. UNITED STATES. ^[1]

No. 3,508.

United States Court of Appeals, Eighth Circuit.

September 1, 1911

Hugh Gordon Miller (True Page Pierce, on the brief), for plaintiff in error.

Leslie J. Lyons, U.S. Atty., and Thaddeus B. Landon, Asst. U.S Atty., for the United States.

Before ADAMS and SMITH, Circuit Judges, and REED, District Judge.

REED District Judge.

The plaintiff in error, who will be called the defendant, was convicted of having used the United States mails in furtherance of a scheme to defraud, in violation of section 5480 of the Revised Statutes of the United States, as amended (U.S. Comp. St. 1901, p. 3696).

The third count of the indictment, upon which alone the defendant was convicted, charged the scheme as devised by him substantially as follows: That defendant should falsely pretend and represent that he was engaged in a general real estate brokerage and money lending business in New York City with offices there, and also in the Gibraltar Building in Kansas City, Mo., where he pretended to conduct such business under the names of G. Mortimer Gaugh, and W. W. Gaugh; that he had large sums of money of his own, and a large number of clients in New York City and other Eastern cities who had large sums of money to loan upon real estate security in the various cities and states of the United States; that defendant advertised in the daily papers throughout the United States offering to purchase mortgages, notes, bonds and other securities, to incite persons who might read such advertisements to open correspondence with him through the United States mails, and, upon receiving communication from such persons, he would correspond with them through the mails to induce, and attempt to induce them to pay large sums of money for an expert opinion and report of appraisers, designated by him, as to the condition and value of the securities offered for sale; that defendant was not engaged bona fide in the real estate brokerage or money-lending business as represented and pretended by him; that he did not have money of his own or of others to loan, or with which to purchase such securities; that his pretensions and representations were false, and that he did not intend to purchase any of such securities as might be offered in response to such advertisements; that his purpose in so scheming and advertising was to incite those who might read such advertisements to open correspondence with him through the mails, that he might in that way get into communication with them to induce or attempt to induce them to pay large sums of money for obtaining an appraisal and report of the property upon which the securities offered for sale were secured, which money, when received, he would fraudulently appropriate and convert to his own use, without rendering, and without intending to render, any equivalent therefor to the persons from whom the same should be so obtained; that having so devised such scheme, and in attempting to execute the same, he did on a date named unlawfully deposit in the post office at Kansas City, Mo., a certain letter to be sent and delivered by the post office establishment of the United States, addressed to a firm named, which said letter is set out in the indictment.

The principal errors assigned as having occurred upon the trial are that the court erred (1) in admitting over defendant's objections, certain testimony; (2) in its instructions to the jury; (3) in overruling a general demurrer at the close of all the evidence; and (4) refusing to grant a motion for new trial in which misconduct of the jury is alleged.

The testimony alleged to have been erroneously admitted is that which shows, or tends to show, that defendant in 1906 was conducting in the state of New York a business similar to that charged in the indictment, and that he was in the latter part of December, 1904, conducting a similar business in the name of William D. Clyde as general manager of the Investor's Brokerage Company of Indianapolis, Ind., and that in 1905 he was connected in some manner with the Imperial Trustee Company of Jersey City, N.J., which was conducting a somewhat similar business. The objection urged against the admission of this testimony is that it relates to collateral facts and tends to show the commission by defendant of crimes other than that charged in this indictment, that such transactions were too remote, and would operate to his prejudice. The testimony was admitted as bearing upon the intent or motive and good faith of the defendant in the various transactions, and its consideration by the jury was expressly limited by the trial court to such purpose only.

Evidence of other offenses committed by the accused having no connection with or relation to that for which he is upon trial is not, of course, ordinarily admissible. But, when the offense charged is one that involves the fraudulent intent or motive of the accused, it is permissible in criminal as well as in civil cases to introduce evidence of other acts and transactions of the party upon trial of a kindred nature to show his intent or motive in the particular act directly under investigation, even though it may show the commission of other offenses than that for which he is being tried. Indeed, in no other way, in many cases, could the fraudulent intent or motive of the accused be established, for the single act under investigation might not alone be decisive either way; but when that act is considered in connection with other transactions of a like or similar character occurring at or near the same time, which also involve the intent or motive of the party, the intent and motive in doing the act under investigation may thus be made to appear with almost conclusive certainty. Wood v. United States, 16 Pet. 342-359, 10 L.Ed. 987; Moore v. United States, 150 U.S. 57-60, 61, 14 Sup.Ct. 26, 37 L.Ed. 996; Williamson v. United States, 207 U.S. 425-451, 28 Sup.Ct. 163, 52 L.Ed. 278; Thomas v. United States, 156 F. 897-911, 84 C.C.A. 477, 17 L.R.A. (N.S.) 720; Bryan v. United States, 133 F. 495-500, 66 C.C.A. 369; Olson v. United States, 133 F. 849-854, 67 C.C.A. 21; Commonwealth v. Jackson, 132 Mass. 16; People v. Harris, 136 N.Y. 423, 33 N.E. 65-74.

In Thomas v. United States, above, this court, speaking by Judge Adams, said upon this question:

'Nothing is better settled in the law of evidence in any case involving fraudulent intent than that other acts and dealings of the accused of a kindred character to those charged in the case in hand and performed at or about the same time are admissible to illustrate and establish the intent or motive in the particular act directly in judgment.'

In Commonwealth v. Jackson, 132 Mass. 16, a case cited in behalf of the defendant, it is said:

'It is not in general competent to show a distinct crime committed by the defendant for the purpose of proving that he is guilty of the crime charged. But as in all crimes, except a few statutory offenses, a criminal intent is necessary to be proved, evidence which legitimately bears upon this may be put in, even if it be derived from circumstances which also show the commission of another offense.'

The transactions of the defendant in the name of the Investor's Brokerage Company and those in his own name in New York as testified by the witnesses were similar to those charged in the indictment. Those in connection with the Imperial Trustee Company were somewhat different. As to those, the testimony tended to show that defendant had advertised through the press that he or his clients had money to invest in mortgages or other securities, and upon receipt through the mails of offers of such securities prompted by such advertisements he would, through the mails, refer the persons so offering to the Imperial Trustee Company, which proposed to guarantee the stocks or securities upon a percentage basis, one-half of which the defendant was to receive if the deals were consummated. The transactions were upon the same general plan as the others, and those for which the defendant was on trial, and, if they occurred as testified by the witnesses, they involved a like fraudulent intent upon the part of the defendant in the use of the United States mails. These various...