Gardner v. United States

• Decision Date: 05 February 1916
• Docket Number: 4219,4220.
• Citation: 230 F. 575
• Parties: GARDNER v. UNITED STATES. COUDREY v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

230 F. 575

GARDNER v. UNITED STATES.

COUDREY v. SAME.

Nos. 4219, 4220.

United States Court of Appeals, Eighth Circuit.

February 5, 1916

P. H Cullen, of St. Louis, Mo. (Thomas T. Fauntleroy and C. M Hay, both of St. Louis, Mo., and J. C. Pratt, of Winder, Ga on the brief), for plaintiff in error Gardner.

Walter B. Douglas, of St. Louis, Mo., for plaintiff in error Coudrey.

Arthur L. Oliver, U.S. Atty., and Vance J. Higgs, Asst. U.S. Atty both of St. Louis, Mo. (W. H. Woodward, Asst. U.S. Atty., of St. Louis, Mo., on the brief), for defendant in error.

Before ADAMS and CARLAND, Circuit Judges, and TRIEBER, District Judge.

CARLAND Circuit Judge.

Gardner and Coudrey were jointly indicted and convicted of a violation of section 5480, R.S.U.S., as amended by the act of March 2, 1889. They sued out separate writs of error to review the judgment of conviction, and the same have been consolidated for the purpose of hearing and decision. Taking up the case of Gardner, No. 4219, we find the following alleged errors properly assigned:

(1) 'The court erred in refusing to sustain the defendant's demurrer to the evidence at the close of the whole case as to the first, second, third, fourth, fifth, sixth, and seventh counts of the indictment.'

(2) 'The court erred in overruling the defendant's motion in arrest of judgment.'

We pass for future disposition assignment of error No. 1, and dispose of assignment No. 2 by saying that this defendant in his motion in arrest presented no grounds for arresting the judgment.

Coming to the case of Coudrey, No. 4220, we find the following alleged errors properly assigned:

(1) 'The court erred in refusing to sustain the defendant's demurrer to the evidence at the close of the whole case, as to the first, second, third, fourth, fifth, sixth, and seventh counts of the indictment.'

(2) 'The court erred in overruling its motion in arrest of judgment.'

The court erred in refusing to charge the jury as follows:

(3) 'The court instructs the jury that the offense charged against the defendants contains three elements: First, the devising or intending to devise a scheme or artifice to defraud; second, such scheme or artifice to defraud to be effected by opening or intending to open correspondence, by means of the postal service of the United States, with any person or persons, or by inciting the other person to open communication with the person so devising or intending; and, third, for the purpose of executing or carrying into effect such scheme, actually placing a letter in the mails.'

Passing assignment No. 1 and coming to assignment No. 2, we find that this assignment directly raises the sufficiency of the indictment, as the principal ground upon which Coudrey moved in arrest was that the indictment or any of its counts did not state facts sufficient to constitute an offense under the laws of the United States.

It is first objected that counts 1 and 2 of the indictment are fatally defective for want of an averment that the defendants mailed the letters set forth in the indictment for the purpose of executing the alleged scheme. We cannot understand this objection, for both counts charge in reference to the mailing of the letters that they were mailed or placed in the post office 'in and for the purpose, and with the intention on their part of executing and effecting the said scheme and artifice and attempting so to do. ' It is next urged that each count of the indictment is fatally defective for want of a specification distinctly setting forth the artifice and fraud, for want of an averment of intent, and because the indictment is vague, uncertain, and blends several distinct schemes in one count and attempts to charge that several different classes of persons were victimized by separate, distinct, and widely varying schemes.

The indictment after alleging that the defendants did fraudulently, knowingly, and unlawfully devise a certain scheme and artifice to defraud certain persons and classes of persons, therein mentioned and described, and the public in general, and for obtaining money and property by means of false and fraudulent pretenses, representations and promises from said persons, and said class of persons, and the public in general residing in the United States, and thereby defrauding said persons of the same, and thereby converting the same to their own use and benefit, proceeds with great detail to set forth the character of the scheme, and then falsifies these averments by proper allegations. The character of the scheme and the averments of falsification cannot be set forth within the limits of this opinion, but it may be said generally that the scheme was that Gardner and Coudrey should fraudulently procure the organization of two companies, as corporations, under the laws of the state of Missouri, for the purpose of using the same as a cloak to cover and fraudulently obtain money and property from the persons named in the indictment and others by the means and in the way particularly and at length set forth in the indictment, and for the purposes therein stated.

It is the established rule in this court that while particulars of the scheme are matters of substance and must be described with certainty sufficient to show its existence and character and to fairly acquaint the accused with the particular fraudulent scheme charged against them, the scheme itself need not be pleaded with all the certainty as to time, place and circumstance requisite in charging the gist of the offense, the mailing of the letter or other article in execution or attempted execution of the same. Colburn v United States, 223 F. 590, 139 C.C.A. 136; Gould et al. v. United States, 209 F. 730, 126 C.C.A. 454; Brooks v. United States, 146 F. 223, 76 C.C.A. 581; Lemon v. United States, 164 F. 953, 90 C.C.A. 617; Horn v. United States, 182 F. 721, 105 C.C.A. 163. Tested by the above rule we think the indictment is sufficient, especially when attacked only by...