Faulkner v. United States

Decision Date10 December 1907
Docket Number1,616.
Citation157 F. 840
PartiesFAULKNER v. UNITED STATES.
CourtU.S. Court of Appeals — Fifth Circuit

Sterling A. Wood (Fred S. Ferguson and Zell Gaston, on the brief), for plaintiff in error.

Oliver D. Street, U.S. Atty.

Before PARDEE and SHELBY, Circuit Judges, and BURNS, District Judge.

SHELBY Circuit Judge.

The plaintiff in error was tried on two indictments for violating Rev. St. U.S. Sec. 5480, as amended by Act March 2, 1889, c 393, Sec. 1, 25 Stat. 873 (U.S. Comp. St. 1901, p. 3696). This statute provides for the punishment of one 'who having devised a scheme or artifice to defraud,' to be effected by the use of the mails, posts a letter to carry out the scheme. The plaintiff in error was engaged in business in Birmingham under the name of the 'Birmingham Commission Company,' and the chief element in the alleged scheme to defraud was the issuance by him of a circular which it was alleged and proved he sent by mail to his customers and to those of whom he solicited business. The circular is as follows:

'Our Facilities.
'We are pleased to inform our patrons of our cold storage arrangements, which facilitates us in caring for perishable foods, both farm and sea products. We have a cold air storage capacity of about 120 lbs. fresh fish, 200 buckets oysters, 500 cases eggs, 50 bbls. poultry, 2,000 lbs. butter, 300 crates berries and vegetables.
'This storage is thoroughly illuminated, enabling us to display consignments. We find, under this refrigeration, that perishable commodities show up fresh and healthy, and naturally sell to better advantage.
'Our policy is prompt services, immediate reports, accurate accounts, and profitable results. Unless we can benefit our patrons, we can't expect their support. Our business is our capital. We appreciate it, and hope to represent your interest.
'Respectfully,

Birmingham Commission Co.'

A demurrer was filed to the indictment on the ground that there was no sufficient averment of a scheme to defraud. The demurrer was overruled, but we do not deem it necessary to consider the assignment of error based on that ruling. Conceding that the scheme is sufficiently charged, there must be proof of it before the plaintiff in error could be rightfully convicted. The evidence shows without conflict that Faulkner was in fact engaged in business as advertised by him. He had, in fact, a large business. There was uncontradicted...

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5 cases
  • Harrison v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 3 December 1912
    ...... . . On what. we think an exhaustive review of all the reported cases. arising under this statute, we do not find any one which. seems, on its face, to be of the class we have mentioned--. exaggerated claims of merits in articles of inherent. utility-- unless it is Faulkner v. U.S., 157 F. 840,. 85 C.C.A. 204, in which the Circuit Court of Appeals in the. Fifth Circuit reversed a conviction because based merely on. exaggerated advertising. The subject is also considered by. Judge Severens, then District Judge, who said, in U.S. v. Staples (D.C.) 45 F. 195, ......
  • Kaufmann v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 11 August 1922
    ...... that fact it was wholly inadmissible. The testimony in the. instant case was very different, was admitted for an entirely. different purpose, under different facts, and so that case is. inapplicable. . . He also. cited Faulkner v. United States, 157 F. 840, 85. C.C.A. 204, which holds that the failure of one, who makes. substantially true advertisements of his business, to make. settlement with some of his creditors, does not make it a. question to be submitted to the jury. The mere statement of. the proposition ......
  • United States v. Rabinowitz, 15138.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 22 January 1964
    ...removes this case from the ordinary run of mail fraud prosecutions. Harrison v. United States, 200 F. 662 (C.C.A.6); Faulkner v. United States, 157 F. 840 (C.C.A.5). Cf. United States v. Staples, 45 F. 195 (U.S.D.C.W.D.Mich). The article sold here was not a worthless stock. The defendants w......
  • Pelz v. United States, 227.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 4 January 1932
    ...statement is false or true, but whether the scheme as a whole is to defraud. McLendon v. U. S., 2 F.(2d) 660 (C. C. A. 6); Faulkner v. U. S., 157 F. 840 (C. C. A. 5). Criminality is established only when the false representation or pretense is the operating cause and basis of the conspiracy......
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