Gammon v. United States

• Decision Date: 19 April 1926
• Docket Number: No. 7066.,7066.
• Citation: 12 F.2d 226
• Parties: GAMMON v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

12 F.2d 226 (1926)

GAMMON v. UNITED STATES.

No. 7066.

Circuit Court of Appeals, Eighth Circuit.

April 19, 1926.

C. L. Byers, of Des Moines, Iowa, for plaintiff in error.

Frank F. Wilson, Asst. U. S. Atty., of Mt. Ayr, Iowa (Ross R. Mowry, U. S. Atty., of Newton, Iowa, and Ray C. Fountain, Asst. U. S. Atty., of Des Moines, Iowa, on the brief), for the United States.

Before SANBORN, Circuit Judge, and MUNGER and JOHNSON, District Judges.

WALTER H. SANBORN, Circuit Judge.

The defendant, Dallas Gammon, was indicted, tried and convicted for using the mails in violation of section 10385, U. S. Compiled Statutes, to defraud eight persons, one of whom only was named in each count of the indictment, by sending to each of them through the mails a written or printed communication in the course of executing a scheme or plan to defraud them, which he had previously devised.

The alleged scheme was by false, written or printed representations that his copartnership, Gammon & Son, had available described, valuable, Polled Hereford cattle, which they would send to buyers for specified prices, to induce them to order these cattle by mail and send the purchase prices of them to his firm and then not to ship the cattle so ordered and paid for within a reasonable time or at any time and to refuse to refund the moneys thus obtained or to satisfy in any manner those who had thus purchased cattle of him by mail. At the trial these facts were established.

Warren Gammon, the father of the defendant, Dallas Gammon, and B. O. Gammon, the latter's brother, as early as 1908 were partners under the name of Gammon & Son, or Warren Gammon & Son, in the business of buying and selling Polled Hereford cattle. They conducted this business in this way: By inquiries through the mails and by travel they ascertained from owners what cattle of this breed they had for sale and their prices, by travel and by circulars sent through the mails they informed prospective buyers that these cattle were available to Gammon & Son, and offered to sell them and ship them to the purchasers upon receipt of the prices specified in the circulars. Upon receipt of orders for them and the purchase prices, they either purchased the cattle ordered, and shipped them as directed, or shipped those ordered from a herd they owned. They conducted this business in this way from 1908 to 1918 when B. O. Gammon retired from the firm and became secretary of the Polled Breeders' Association, and on January 1, 1919, the defendant, Dallas Gammon, became a partner of his father, Warren Gammon. From 1908, when he was 18 years of age, to 1912 he had worked taking care of and shipping the cattle for this firm. He then left their employment and returned to it in 1917. On January 1, 1919, on the retirement of his brother from the firm, he became the junior partner therein. His father, Warren Gammon, always had entire charge of the financial affairs of the firm until he became very ill in March, 1923, and he died in October, 1923. Dallas Gammon knew nothing about the financial condition of the firm prior to June, 1923, and did not learn its actual condition until August, 1923. His duties always had been and were to buy, sell and ship the cattle and do the outside work. During his membership in the firm his father and he deposited all the moneys they received from the business and their personal receipts in the firm account with the bank and paid for the cattle they bought, their expenses and operation of their business and their own living expenses out of that account.

When this case was tried in December, 1924, all orders for cattle received by them prior to January 1, 1922, had been filled. They had always conducted and were conducting their business in the same way, had sent out the same character of circulars, inquiries and advertising matter from 1920 to the close of their business in September, 1924. During the years 1918, 1919, 1920 and 1921 the firm sustained heavy losses, the prices and market values of Polled Hereford cattle slumped. The firm made a purchase of cattle from New Mexico for $10,500 that on arrival proved diseased and so poor that the purchase price paid was lost. Dallas Gammon first learned the true financial condition of his firm in August, 1923, when he and his brother, during the severe illness of their father, checked up the books and orders and found that the unfilled orders for which the firm had received the money amounted to $17,000. The defendant testified that he was confused and excited; that his father was very ill and died on October 24, 1923; that he saw that he could not pay his debts if he ceased to conduct the business; that after much anxiety and...