Cullen v. United States

• Decision Date: 20 October 1924
• Docket Number: No. 4284.,4284.
• Citation: 2 F.2d 524
• Parties: CULLEN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

2 F.2d 524 (1924)

CULLEN et al. v. UNITED STATES.^*

No. 4284.

Circuit Court of Appeals, Ninth Circuit.

October 20, 1924.

Alfred L. Bartlett, Thos. P. White, Leo M. Rosecrans, and Otto J. Emme, all of Los Angeles, Cal., for plaintiff in error King.

Schenck & Kittrelle and J. M. Bowen, both of Los Angeles, Cal., for plaintiffs in error Cullen and Dennison.

David V. Cahill and Charles L. Nichols, Sp. Asst. Attys. Gen., for the United States.

Before GILBERT, ROSS, and RUDKIN, Circuit Judges.

GILBERT, Circuit Judge.

The plaintiffs in error were convicted under an indictment which charged them with using the mails in a scheme to defraud, in violation of section 215 of the Penal Code (Comp. St. § 10385). It is contended that it was error to deny their motions for instructed verdicts of acquittal.

So far as the defendants Cullen and Dennison are concerned, the evidence was amply sufficient to justify the submission of the case to the jury. They purchased at $3.25 per acre 1,120 acres of land, which they had never seen, and they organized a corporation, known as Great Angelus Oil & Land Corporation, with a capital of $250,000. They had no other assets than the land. They divided it into 4,480 tracts, of one-quarter of an acre each, which they denominated "drill sites," and they offered the drill sites for sale as oil lands at prices ranging from $25 to $100 each. They received from purchasers thereof $147,056.96, out of which they paid to themselves as salaries $61,000. The land was hilly, and was without water, and was covered with a sparse growth of desert brush. The defendants falsely represented it to be oil land; that it was land where "the geologists claimed the widest long channel of oil in California was to be found"; whereas, the facts were that no indication of oil was ever found on the land, and the nearest producing oil well was 47 miles distant therefrom. The defendants, to carry out their representations, drilled on the land a hole 400 feet deep, and falsely represented that they were down 1,300 feet, and expected oil at 1,600 feet. They also falsely represented the land to be good agricultural land, and said it was good for raising "most anything"; that it was "especially good for peaches or fruit of any kind."

As to the defendant King the proof was that he was not a member of the corporation, nor a party to the original scheme, but was engaged as a salesman to sell lots on commission. He was found guilty on the fifth count. He earnestly contends that there was absence of testimony as to his connection with the scheme sufficient to justify the submission of the charge against him to the jury. There was evidence, however, tending to show that King practiced deception in effecting sales of the land. He exhibited a fictitious check for $16,000, which, he said, represented a profit made by a purchaser. As to the land, he represented that it was a "wonderful proposition"; that it was "good for raising anything that any land in California was good for raising things on." In the letter, which is referred to in the fifth count, he wrote to a purchaser: "Now, things are all excitement up by our well; so protect yourself and make payments,...