Erbaugh v. United States

• Court: U.S. Court of Appeals — Eighth Circuit
• Citation: Erbaugh v. United States, 173 F. 433 (8th Cir. 1909)
• Decision Date: 01 November 1909
• Docket Number: 3,053.
• Parties: ERBAUGH v. UNITED STATES.

173 F. 433

ERBAUGH v. UNITED STATES.

No. 3,053.

United States Court of Appeals, Eighth Circuit.

November 1, 1909

Caesar A. Roberts and Henry J. O'Bryan, for plaintiff in error.

Ralph Hartzell, Asst. U.S. Atty., and Thomas Ward, Jr., U.S. Atty.

Before SANBORN and VAN DEVANTER, Circuit Judges, and WILLIAM H MUNGER, District Judge.

SANBORN Circuit Judge.

The complaint in this case is that the defendant below was convicted and sentenced for using the mails to defraud, in violation of section 5480 of the Revised Statutes (3 U.S Comp. St. 1901, p. 3696, Act June 8, 1872, c. 335, 17 Stat 323, as amended by Act March 2, 1889, c. 393, Sec. 1, 25 Stat. 873).

There are many specifications of error, but the most serious one is that the defendant's motion for arrest of judgment upon the ground that the indictment charged no offense was denied and he was sentenced for devising a fraudulent scheme to be effected by intending to open and opening a correspondence with himself by means of the post office establishment, when the only offense denounced by the statute is devising a fraudulent scheme to be effected, either by opening or intending to open correspondence with some other person to open communication with him. The statute, so far as material here, reads:

'If any person having devised or intending to devise any scheme or artifice to defraud, * * * to be effected by either opening or intending to open correspondence or communication with any person, whether resident within or outside the United States, by means of the post office establishment of the United States, or by inciting such other person or any person to open communication with the person so devising or intending, shall, in and for executing such scheme or artifice or attempting so to do,' mail any letter or receive any letter from the mail, he shall, upon conviction, be punishable by a fine or imprisonment, or both.

The gravamen of this offense is not the intended or perpetrated fraud, but the intended use of the post office establishment of the United States to perpetrate the fraud. The charge in the indictment was that the defendant had devised a scheme to defraud which he 'intended to effect by opening correspondence with himself under an assumed and fictitious name by means of the post office establishment of the United States,' and that he assumed a false name and caused letters to be written, to be signed by that name, to be sent to and received by himself through the post office establishment for the purpose of carrying out his scheme to defraud.

The act forbidden by the statute is not the deposit in or the receipt from the Post Office Department of the United States of a letter or circular for the purpose of executing a fraudulent scheme, as in section 215 of the Criminal Code (Act March 4, 1909, c. 321, Sec. 215, 35 Stat. 1130). It is the intent to effect the scheme to defraud by either opening or intending to open correspondence or communication with any person by means of the mails, or by inciting such other person or any person to open communication with the schemer.

The obvious and common meaning of opening or intending to open correspondence with a person imports distance between him who opens or intends to open it and his intended correspondent, which renders the use of the mails convenient or necessary, and that his correspondent is some other person than himself, for one cannot open communication with himself by means of the post office establishment by writing and sending letters to himself through the mails, because the communication with himself in such a case must necessarily be opened and intended to be opened when the letter is written and before it is mailed. The clause in this section of the statute, 'or by inciting such other person or any person to open communication with the persons so devising or intending,' clearly indicates that the person mentioned in the preceding clause, with whom the deviser opens or intends to open correspondence, is to be such 'other person' and not himself.

In 1894 in Stokes v. United States, 157 U.S. 187, 188, 15 Sup.Ct. 617, 618, 39 L.Ed. 667, the Supreme Court declared that there were three matters of fact which must be charged in the indictment and established by the evidence under this statute, and that the second of these was that the persons charged 'must have intended to effect this scheme by opening or intending to open correspondence with some other persons through the post office establishment, or by inciting such other persons to open communication with them,' and this proposition has been sustained without dissent by the opinions and the practice of the courts. United States v. Long (D.C.) 68 F. 348, 349; Milby v. United States, 109 F. 638, 640, 641, 48 C.C.A. 574; United States v. Post (D.C.) 113 F. 852, 853; Horman v. United States, 116 F. 350, 351, 53 C.C.A. 570; ...