Dyar v. United States

• Decision Date: 04 April 1911
• Docket Number: 2,100.
• Citation: 186 F. 614
• Parties: DYAR et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

186 F. 614

DYAR et al. v. UNITED STATES.

No. 2,100.

United States Court of Appeals, Fifth Circuit.

April 4, 1911

Benj. Rice Forman, Chandler C. Luzenberg, and W. Knox Haynes, for plaintiffs in error.

W. J Waguespack and Charlton R. Beattie, for the United States.

Before McCORMICK and SHELBY, Circuit Judges, and NEWMAN, District judge.

NEWMAN District Judge.

Plaintiffs in error, Alexander S. Dyar and W. H. Hale, were convicted in the Circuit Court of the United States for the Eastern District of Louisiana under an indictment for violation of section 5480, Revised Statutes of the United States, as amended by the act of March 2, 1889 (25 Stat. 273, c. 393 (U.S. Comp. St. 1901, p. 3696)), although the second count in the indictment charged a conspiracy between Dyar and Hale to commit the offense named in section 5480.

The first indictment, No. 2,576, charged that A. S. Dyar and W H. Hale did knowingly, willfully, unlawfully, and feloniously devise a scheme and artifice to defraud; that is to say, by divers false pretenses and representations to obtain and acquire for themselves of and from one Simon Vercher, of Bayou Current, state of Louisiana, and from each of various other persons to the grand jurors unknown, a large sum of money, to wit, $100, and to convert and appropriate said sums of money to the use and benefit of themselves, without giving or rendering an equivalent therefor, the said scheme and artifice to defraud to be effected by inducing and enticing said Simon Vercher and the various other persons to the grand jurors unknown to open communication by means of the post office establishment of the United States with them the said Dyar and Hale, and by opening communication by means of the post office establishment of the United States with the said Simon Vercher and the said various other persons to the grand jurors unknown which said use and misuse of the post office establishment of the United States was then and there part of the said scheme and artifice to defraud by falsely pretending in and through certain advertisements, letters, and circulars sent and to be sent through and by the mails of the United States that they, the said Dyar and Hale, were physicians of eminence, and skilled specialists in the treatment of various diseases, and were able to effect a complete cure of certain diseases commonly known and supposed to be incurable, and that the said Hale was one of the greatest living specialists in nervous, chronic, and special diseases; that he was of London, England, and a noted expert in genito-urinary diseases, and would only consent to grant a consultation to the said Simon Vercher, and the various other persons to the grand jurors unknown, by reason of his personal friendship for the said Dyar, and that a visit to said Dyar and Hale and a consultation with the said Hale would be of great benefit to the said Simon Vercher, and the various other persons to the grand jurors unknown, and that the said Hale would give the said Simon Vercher and others a consultation and all necessary advice, free of charge, whereas, in truth and in fact, the said Dyar and Hale well knew they were neither of them physicians of eminence nor skilled specialists in the treatment of various diseases; they were not able to effect a complete cure of certain diseases commonly known and supposed to be incurable, and that said Hale was not of London, England, and on a visit to the United States; he was not a noted expert in genito-urinary diseases; was not regarded as one of the greatest living specialists in nervous, chronic, and special diseases, and had not consented to grant a consultation to the said Simon Vercher and the others because of his personal friendship for the said Dyar, and did not intend to, and would not, give a consultation and all necessary advice to the said Simon Vercher and others free of charge, but, on the contrary, by means of said false and fraudulent pretenses and representations the said Dyar and Hale did knowingly, willfully, unlawfully, and feloniously intend to obtain the aforesaid sums of money, to wit, $100 each from the said Simon Vercher and the other persons to the grand jurors unknown, and to knowingly, willfully, unlawfully, and feloniously convert the same to their own use and benefit.

It is further charged that the said Dyar and Hale did deposit in the post office establishment of the United States, in the post office at New Orleans, state of Louisiana, a certain envelope, duly stamped and sealed, and addressed to Simon Vercher, Atchafalaya, La., which said envelope was intended to be, and was, delivered to the said Simon Vercher, at Atchafalaya, state of Louisiana, and contained a certain letter which was set out as follows: '(Photograph of Dr. A. S. Dyar, marked 'Dr. A. S. Dyar, Principal of the Staff of Physicians and Surgeons of A. S. Dyar.')

'Dr. A. S. Dyar.

'Physician, Surgeon and Specialist.

'Office and Laboratory, No. 619 Canal Street.

'(Corner Exchange Place.)

'Office Hours: Daily and Sunday from 9 A.M. to 8 P.M.

'Private Office: No. 110 Exchange Place.

'New Orleans, February 27th, 1908.

'Mr. Simon Vercher, Atchafalaya, La.-- Dear Sir: I hope that you will pardon this letter, but when you have read it I know you will. It is natural that I feel a deep interest in those consulting me regarding their physical condition and especially in those I have treated and also in those I am still treating. I feel that you know that I have been perfectly sincere and honest in everything I have done and said, that I have always studied your case carefully, and earnestly endeavored to deserve your confidence and friendship--in other words I have tried to act out the Golden Rule.

'The fear that I have not cured you has been causing me some worry. Meeting Professor W. H. Hale, M.D., of London, England, the noted expert in genito-urinary diseases, who is just now on a visit to the United States, and with whom some years ago I had a very close acquaintance, I took the liberty of consulting this noted gentleman about your case. He gave me much light and assured me that there was a safe and permanent cure for your trouble.

'So delighted was I, that I have, after much persuasion, secured Professor Hale's promise to spend next Thursday, Friday, Saturday and Sunday, March 5th, 6th, 7th and 8th, with me, on which occasion he will meet you, give you a consultation and whatever advice is necessary, for which there will be no charge whatever to you.

'When you stop to think that, as a rule, Professor Hale charges from $100 to $1000 for consultation alone, you can possibly understand what it means to you to get the benefit of his valuable services without any charge whatever, and because of his personal friendship for me he has consented to see a limited number of my patients, of whom you are one.

'Professor Hale is regarded as one of the greatest living specialists in nervous, chronic and special diseases. I therefore ask you to call at my office on either of the days mentioned; namely, Thursday, Friday, Saturday or Sunday, March 5th, 6th, 7th and 8th, at any hour that suits your convenience between 9 a.m. and 8 p.m., as the doctor will be with me each day during those hours.

'I can hardly express to you the pleasure and satisfaction I experience in having Professor Hale visit me, and I hope that you will avail yourself of my efforts in your behalf.

'Yours in the Cause of Health,

A. D. Dyar, M.D.'

Later, on the 25th day of May, 1910, another indictment was obtained against Dyar and Hale, the first count in which set out that Dyar and Hale devised a scheme to defraud one Joseph C. Burke and various other persons to the grand jurors unknown, and then set out at some length what substantially was a scheme to write to Burke and others that Dyar regretted that he had been unable to effect a cure in their cases before, but that he had interested Professor W. H. Hale, a noted specialist in nervous, chronic, and special diseases, of London, England, and that Hale was a noted expert in genito-urinary diseases, and was just then on a visit to the United States, and him Dyar had consulted about the cases of Burke and others to the grand jurors unknown, and after much persuasion had induced Hale to give a consultation, free of charge, to Burke and the other persons, and Hale had consented to see a limited number of his, Dyar's patients, that Hale usually charged for such services from $100 to $1,000, and that the said Dyar and Hale did unlawfully and feloniously intend to obtain from the said Burke and various other persons to the grand jurors unknown the sum of $300 each, and to knowingly, willfully, unlawfully, and feloniously convert the same to their own use, without then and there intending to render therefor either to the said Burke or any of the various other persons to the grand jurors unknown advice, service, or other consideration of the kind, character, quality, and value that the false and fraudulent pretenses, representations, and inducements were calculated and intended by Dyar and Hale to lead the said Burke and others to believe that they would receive; that is the services, and the cure resulting therefrom, of truly eminent physicians and specialists.

Copy of letter written by Dyar to Burke is set out in the indictment. It is then charged that with a view to executing and in the execution of the scheme and artifice to defraud, through and by means of the post office establishment of the United States, Dyar and Hale did deposit and cause to be deposited in the post office of the United States at the city of New Orleans, state of Louisiana, a certain envelope, duly stamped and sealed, and addressed to Joseph C. Burke, and each of the various other persons to the...