Fall v. United States

• Decision Date: 28 November 1913
• Citation: 209 F. 547
• Parties: FALL v. UNITED STATES (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

209 F. 547

FALL v. UNITED STATES (two cases).

United States Court of Appeals, Eighth Circuit.

November 28, 1913

Chambers Kellar, of Lead, S.D. (James G. Stanley, of Lead, S.D., and Williams & Sweet, of Rapid City, S.D., on the brief), for plaintiffs in error.

Charles C. Houpt, U.S. Atty., of St. Paul, Minn.

Before HOOK and SMITH, Circuit Judges, and AMIDON, District Judge.

SMITH Circuit Judge.

John E Fall, David A. Fall, and Francis R. K. Hewlett were tried jointly on an indictment against them and another for conspiracy under Penal Code, Sec. 37, to defraud the state of South Dakota under its statutes relating to bounty. Political Code of South Dakota, Secs. 3113 to 3116 and 3121, as amended by Laws 1905, c. 177, and for using the United States mails in connection therewith in violation of section 215 of the Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1130 (U.S Comp. St. Supp. 1911, p. 1653)). They were convicted, and John E. Fall and David A. Fall brought the case here on error. They sued out separate writs, but as both writs have been submitted upon the same record in the District Court it is agreed that the cases be disposed of together. Hereafter the United States will be treated as the plaintiff and the Messrs. Fall as the defendants.

In 1903 the state of South Dakota passed a law for a state bounty for the killing of wolves and other animals, known as sections 3113 to 3121 of the Political Code. On March 3, 1905 (Laws 1905, c. 177), it passed a substitute for sections 3113, 3114, 3115, and 3121. The statute made a permanent annual appropriation of not to exceed $10,000 not to be disbursed until 30 days after the end of the year. A bounty was to be paid for the killing of grown wolves of $5, for each mountain lion $3, and for each pup wolf, prairie wolf, or coyote, $2 provided the sum of $10,000 was sufficient to do so, if not, then the $10,000 was to be paid pro rata upon the claims existing. Any person desiring to claim bounty was required to present the skin to the board of county commissioners of the county in which the animal had been killed within 30 days of the killing or leave the same within that time with the county auditor and at the same time file his affidavit with the county auditor stating that the animal was killed in the county, by whom and when; that the skin and scalp produced were from the animal on the killing of which the bounty was asked; and that no allowance or bounty had been paid for the killing of such animal. The county commissioners were required to examine the skin and scalp and cut the skin from the lower jaw and burn it, and, if from the affidavit mentioned and the examination of the skin and scalp they found the animal was killed in that county, they should direct the county auditor, under the county seal, to issue to the claimant a certificate, in a form prescribed, to the Auditor of State, which certificate should be filed within 30 days after its receipt by the claimant.

The defendant John A. Fall was auditor of Pennington county, and David A. Fall, his twin brother, was his deputy.

It is quite clear that the statute contemplated that each skin should be presented and the evidence made by the individual who killed the animal, but a practice had grown up in Pennington county during the administration of Fall as county auditor, and possibly anterior thereto, for the one who killed the animal to sell the skin and claim for bounty to some dealer in hides. The hide company would then present the claim to the county auditor or his deputy with an affidavit usually purporting to be signed by the one who killed the animal and with an assignment of the claim for bounty to the hide company purporting also to be signed by the man who killed the animal; the auditor or deputy auditor would then certify that he had sworn to the affidavit before him and then certify the claim for bounty to the State Auditor. Some of the hide companies in question presented claims for more wolves and coyotes than had been killed by the persons alleged to be claimants. Their conduct seems to have been not only reprehensible but highly fraudulent, and Mr. Hewlett, who represented several of these companies, has, as we understand, been convicted and is now being punished.

A question has arisen as to whether the Falls signed the names of some of the supposed affiants to their affidavits.

W. A. Shurtleff of Parker, S.D., testified sufficiently to admit his testimony, as an expert in handwriting, that the signatures to many of the affidavits and assignments were in the handwriting of the Falls. The conduct of the Falls in certifying that men appeared and swore to affidavits before them that did not so appear is of course reprehensible, and if they in addition signed the names of supposed affiants their conduct is still more subject to condemnation, but it does not conclusively follow that they were guilty of the conspiracy to defraud the state of South Dakota and used the mails in connection therewith.

Complaint is first made that the indictment charges that the scheme and artifice was to defraud the state of South Dakota and divers persons to the grand jury unknown. It is contended that, as the claims filed that are undoubtedly correct exceeded the appropriation, the fraud was not upon the state of South Dakota but upon those other claimants, and the names of the defrauded claimants should have been given, if known, and it is further insisted that they must have been known. Appellants cite Durland v. United States, 161 U.S. 306, 16 Sup.Ct. 508, 40 L.Ed. 709; Coffin v. United States, 156 U.S. 432, 15 Sup.Ct. 394, 39 L.Ed. 481; Milby v. United States, 109 F. 638, 48 C.C.A. 574. We cannot agree that any of these cases even tend to sustain the defendant's contention.

If it is alleged in such a case that the parties were to the grand jury unknown, that is presumed in the first instance to be true. It is conceded a demurrer which was filed to the indictment could not raise this question, but it is claimed that their motion in arrest of judgment should have been sustained. There was substantially no evidence of who the righteous claimants were, and substantially no more appeared upon the trial in this regard than appeared in the indictment, but the fact, if it appeared before the close of the trial, who the wronged parties were would not show that the grand jury had such knowledge accessible when it returned the indictment.

In the very case of Coffin v. United States, 156 U.S. 432, on page 452, 15 Sup.Ct. 394, on page 402 (39 L.Ed. 481), the court quotes with approval from Commonwealth v. Sherman, 13 Allen (Mass.) 248, 250, to the effect that:

'It is always open to the defendant to move the judge before whom the trial is had to order the prosecuting attorney to give a more particular description, in the nature of a specification or bill of particulars, of the acts on which he intends to rely, and to suspend the trial until this can be done; and such an order will be made whenever it appears to be necessary to enable the defendant to meet the charge against him, or to avoid danger of injustice.

Commonwealth v. Giles, 1 Gray (Mass.) 469; The King v. Curwood, 3 Ad. & El. 815; Rosc. Crim. Ev. (6th Ed.) 178, 179, 420.'

But entirely aside from this question this court is of the opinion that under the circumstances of this case 'and divers persons to the grand jury unknown' may be wholly rejected as surplusage. If the state could have been compelled to pay out the money to some one else if not to the hide dealers in question, if it was fraudulently induced to pay it to the hide dealers the state was no less defrauded because it would have otherwise paid the money to some one else. If this fraud in fact existed, it was a fraud upon the state of South Dakota. Haas v. Henkel, 216 U.S. 462, 30 Sup.Ct. 249, 54 L.Ed. 569, 17 Ann.Cas. 1112.

The defendant John E. Fall on the stand was asked by the defendants' counsel...