Etheredge v. United States

• Decision Date: 11 April 1911
• Docket Number: 2,065.
• Citation: 186 F. 434
• Parties: ETHEREDGE v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

186 F. 434

ETHEREDGE v. UNITED STATES.

No. 2,065.

United States Court of Appeals, Fifth Circuit.

April 11, 1911

This is a writ of error sued out by John B. Etheredge to reverse his conviction under an indictment charging him with the violation of section 5480 of the Revised Statutes, as amended by the act of March 2, 1889 (U.S. Comp. St. 1901, p. 3696). The indictment contains four counts, differing from one another in that three of them aver a scheme to defraud Loftis Bros. & Co., a corporation, and the other, a scheme to defraud Loftis Bros. & Co., a partnership. Each of the counts sets forth a letter averred to have been mailed in execution of the scheme, three of them reciting the same letter, and the fourth a different letter. It is necessary to proper understanding of the case to set forth only one of the counts. The first count of the indictment reads as follows 'The grand jurors of the United States elected impaneled, sworn, and charged to inquire for the body of the said Northern division of the Northern district of Alabama upon their oaths present that on, to wit, the 27th day of April, A.D. 1908, at Town Creek, in the county of Lawrence state of Alabama, and in the division and district aforesaid, John B. Etheredge had then and there devised a scheme and artifice to defraud Loftis Brothers & Company, of Chicago, Illinois, a corporation, to be effected by opening correspondence and communication with the said Loftis Brothers and Company by means of the post office establishment of the United States, which scheme was in substance and effect following, to wit: That one Claude Le May would order of the said Loftis Brothers and Company a diamond ring of great value to be sent to the said Claude Le May, to be paid for in installments, with the intent then and there entertained by the said Claude Le May, and the said John B. Etheredge not to pay for said ring, but to convert the same to the use of the said Claude Le May and John B. Etheredge, without paying for the same, and that the use of the post office establishment was a part of said scheme and artifice to defraud and that the said John B. Etheredge in and for executing said scheme and artifice did on the 27th day of April, A.D. 1908, place and cause to be placed in the post office of the United States at Town Creek, Alabama, a letter with the intent and purpose that said letter should be sent and delivered by the said post office establishment to the said Loftis Brothers and Company, at Chicago, Illinois, which said letter was in substance as follows: 'Town Creek, Ala., 4/27/1908. Loftis Bros. & Co., Chicago, Ill.-- Gentlemen: Enclosed find check for $30.00, for which send me No. 8713 $200.00 diamond ring, size 7-1/2, by mail. I enclose reference from the house I work for. Yours truly, Claude Le May'-- contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States.'

The defendant demurred to the indictment and each count thereof on the following grounds: '(1) Said indictment charges the defendant, John B. Etheredge, with more than three separate and distinct offenses committed within the same six months. (2) Said indictment contains four separate counts, each of which charge the defendant with separate and distinct violations of section 5480 by mailing the four separate letters, all within the same six months. (3) Said indictment does not show that the defendant had devised a scheme and artifice to defraud Loftis Bros., of Chicago, by opening correspondence with the said Loftis Bros. by means of the post office establishment of the United States. (4) Said indictment does not show that the said defendant made to Loftis Bros. any false representation or pretense for the purpose of procuring said diamond ring. (5) Said indictment does not describe a scheme and artifice to defraud Loftis Bros. by means of opening correspondence and communication with them by means of the post office establishment of the United States, in this: That it does not show that the said John B. Etheredge as a part of said scheme intended to represent any false matters to said Loftis Bros., or that he intended to make them any false pretense, or token, for the purpose of procuring from them said diamond ring. (6) Said indictment does not show that the said John B. Etheredge, defendant, made any false representations to the said Loftis Bros. for the purpose of obtaining said diamond ring, or that he intended, as a part of said scheme, to make any such false pretense for the purpose of obtaining the same. (7) There is no charge in said indictment that the said defendant intended as a part of the scheme and artifice set forth therein to make any false representations to Loftis Bros. or any other person for the purpose of procuring said diamond ring, or that he as a matter of fact did make, either through correspondence or otherwise, any false representation for the purpose aforesaid. (8) Said indictment charges no offense under the laws of the United States.'

The demurrer was overruled, whereupon the defendant pleaded not guilty, a trial was had, the jury returning a verdict of guilty as to the first, third, and fourth counts of the indictment, and the defendant was thereupon sentenced to be confined in the penitentiary for 18 months and to pay a fine of $500.

Shelby S. Pleasants, for plaintiff in error.

O. D. Street, U.S. Atty.

Before PARDEE, Circuit Judge, and TOULMIN and JONES, District Judges.

JONES District Judge (after stating the facts as above).

This case is not controlled in any way by the Penal Code of 1910. The indictment is found on section 5480 of the Revised Statutes, as amended by the act of March 2, 1889, and charges that the offense was committed on the 27th day of April, 1908.

The provision of the statute regarding the number of counts which may be joined in the same indictment for separate offenses committed within the same six calendar months relates merely to the mode of procedure. The inclusion of more than three counts in the same indictment does not vitiate it as an entirety. Neither the reason nor the letter of the statute requires the court to hold that all good counts in such an indictment are rendered bad merely because the indictment contains counts in excess of the number which the statute permits to be joined in the same indictment. The indictment here contains four counts, three averring a scheme to defraud Loftis Bros., a corporation, and the fourth charging a scheme to defraud Loftis Bros. & Co. a partnership. Each of the counts sets out the same 'scheme or artifice' to obtain the same ring by the same persons and the posting of letters in execution of the same scheme. It is doubtful, to say the very least of it, whether more than three counts which differ from each other as here only in varying descriptions of the same offense fall within the reason of the rule forbidding the joinder of more than three distinct offenses in the same indictment. It is not perceived how the mere joinder of more than three offenses could so prejudice the defendant that he ought not to be tried on the indictment at all. If, however, that were made to appear, the court could quash the indictment. Ordinarily all the rights of the defendant will be amply safeguarded by directing the prosecution before entering upon the trial to nol. pros. all the counts in excess of three, or, if the court be of opinion that the several counts are merely varied descriptions of the same offense, it can allow the trial to proceed on the indictment until the prosecutor's evidence manifests an election as to the three counts upon which he will proceed, and then compel him to abandon the other counts. Pointer v. U.S., 151 U.S. 396-493, 14 Sup.Ct. 410, 38 L.Ed. 208. The defendant did not ask the court below to take any of these steps. He demanded in effect that the prosecution of all the charges contained in the indictment be discontinued merely because the indictment joined more than three separate offenses within the same six calendar months. The demurrer to the indictment on that ground was properly overruled.

The remaining grounds of demurrer resolve themselves into the objection that the indictment does not disclose any 'scheme or artifice to defraud' within the meaning of the postal laws, and, waiving that, that the indictment does not set forth the facts relating to the offense with sufficient definiteness to fairly apprise the defendant of the nature of the offense preferred against him.

It has been settled by repeated decisions that a good indictment under this statute must allege not only that the defendant had devised a 'scheme or artifice to defraud,' but it must also set out clearly what the artifice was wherein the fraud consisted, and how it was to be accomplished, and that charging the offense in the language of the statute alone is not sufficient. United States v. Hess, 124 U.S. 486, 8 Sup.Ct. 571, 31 L.Ed. 516; Stokes v. United States, 157 U.S. 187, 15 Sup.Ct. 617, 39 L.Ed. 667. Nothing in a criminal case can be charged by implication, but every fact must be clearly alleged. Carll's Case, 105 U.S. 611, 26 L.Ed. 1135; United States v. Post, 113 F. 852. The indictment must show clearly that the person charged has devised or intended to devise a 'scheme or artifice to defraud'; that he intended to effect it by opening or intending to open correspondence with some other person through the post office establishment, or by inciting some other person to open communication with him; and that in executing the scheme charged in the indictment the accused has either deposited a letter or packet in the post office or has taken or received one therefrom. As said in Miller v. United States, 133 F. 341, 66 C.C.A. 403:

'When one

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