Gould v. United States

• Decision Date: 03 December 1913
• Docket Number: 3925,3972.,3971,3970,3924,3926
• Parties: GOULD et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

209 F. 730

GOULD et al. v. UNITED STATES.

Nos. 3924, 3925, 3926, 3970, 3971, 3972.

United States Court of Appeals, Eighth Circuit.

December 3, 1913

Henry McAllister, Jr., of Denver, Colo. (Joel F. Vaile and William N. Vaile, both of Denver, Colo., on the brief), for plaintiffs in error.

Fred A Maynard, Sp. Asst. Atty. Gen. (Harry Eugene Kelly, U.S Atty., of Denver, Colo., on the brief), for defendant in error.

Before HOOK and CARLAND, Circuit Judges, and VAN VALKENBURGH District judge.

CARLAND Circuit Judge.

Gould Wright and White were convicted and sentenced for a violation of section 215 of the Criminal Code (Act March 4, 1909, c. 321, 35 Stat. 1130 (U.S. Comp. St. Supp. 1911, p. 1653)), which so far as is material to the present case reads as follows:

'Sec. 215. Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, * * * shall, for the purpose of executing such scheme or artifice or attempting so to do, place, or cause to be placed, any letter, * * * whether addressed to any person residing within or outside the United States, in any post office, * * * to be sent or delivered by the post-office establishment of the United States, * * * shall be fined not more than one thousand dollars, or imprisoned not more than five years, or both.' The validity of the indictment was challenged in the the trial court by demurrer and motion in arrest. The indictment, so far as it relates to a fraudulent scheme, is copied in the margin. ^[1]

The indictment then proceeded to allege the representations and promises to be false and fraudulent to the knowledge of defendants. It was then further alleged that the defendants, for the purpose of executing said fraudulent scheme, caused to be placed in the United States post office at Denver, Colo., two certain letters, set out in the indictment, to be sent and delivered by the post office establishment of the United States. Four other defendants were jointly indicted with plaintiffs in error, namely, Woody, Gibson, Baker, and Rose. Woody was not tried. Gibson, Baker, and Rose were acquitted.

It is claimed that the indictment does not set forth with sufficient particularity the scheme which it is alleged defendants had devised. United States v. Hess, 124 U.S. 483, 8 Sup.Ct. 571, 31 L.Ed. 516; U.S. v. Stokes, 157 U.S. 187, 15 Sup.Ct. 617, 39 L.Ed. 667; Dalton v. United States, 127 F. 544, 62 C.C.A. 238; Etheredge v. United States, 186 F. 434, 108 C.C.A. 356; Stewart v. United States, 119 F. 89, 55 C.C.A. 641; Miller v. United States, 133 F. 337, 66 C.C.A. 399. It is first claimed that in the general allegation at the commencement of the charging part of the indictment no scheme is set forth, for the reason that certain 'false devices, representations, pretenses, and promises hereinafter mentioned' are referred to, and then in the same clause is found the following language: 'By means of the false and fraudulent representations, pretenses, and promises aforesaid. ' We are clearly of the opinion, however, that if the use of the words 'hereinafter' and 'aforesaid' may be said to have been pleaded, with the result that nothing is alleged, there still remains the allegation that the defendants had devised a scheme to defraud, 'which said scheme was then and there substantially as follows'; but when we get this far, we are met by the contention that the language which follows describes acts done in the execution of the scheme, but not the scheme itself which defendants had devised before they entered upon its execution. The rule which applies to indictments for conspiracy is invoked, namely, that a charge of conspiracy cannot be aided by the averment of acts done in pursuance thereof. United States v. Britton, 108 U.S. 205, 2 Sup.Ct. 531, 27 L.Ed. 698. We do not think from the standpoint of pleading a charge of conspiracy and using the post office establishment in the execution of a scheme to defraud are at all parallel. In the former the conspiracy is the whole offense. The acts done in pursuance thereof simply make the conspiracy punishable. While in the case at bar the use of the post office establishment in the execution of a scheme to defraud is the offense which the statute denounces, and while it is held that the scheme must be sufficiently set forth so as to acquaint the defendant with the particulars thereof, still the scheme need not be set forth with that particularity which would be required if the scheme was the gist of the offense. Brooks v. United States, 146 F. 223, 76 C.C.A. 581; Lemon v. United States, 164 F. 953, 90 C.C.A. 617; Brown v. United States, 143 F. 60, 74 C.C.A. 214; Hyde v. United States (C.C.A.) 198 F. 610. The force of the contention made by counsel under this head is illustrated by the fact that if the indictment had alleged 'that the defendants would falsely represent and pretend' instead of the words 'that the defendants falsely represented and pretended' the point urged would have had no application. There is no doubt in our minds but that any person of common understanding would easily understand from the indictment the scheme which it is alleged the defendants had devised. We do not wish to be understood as indorsing this mode of pleading, but we do not think the pleading in this instance is sufficiently bad to warrant a reversal of the judgment.

It is next urged that the names of the persons to be defrauded must be stated. Of course the defendants, when they devised the scheme to defraud set out in the indictment, if they did devise it for such purpose, did not know the names of the individuals who would be defrauded, and the grand jury in stating the scheme must state it as the defendants understood it. We think the indictment sufficiently charges what is equivalent to a charge that it was the public generally which was to be defrauded. Brown v. United States, 146 F. 219, 76 C.C.A. 577; Horn v. United States, 182 F. 721, 105 C.C.A. 163.

It is next urged that the letters set out in the indictment show on their face that they were not mailed in the execution of the scheme set out in the indictment. We cannot agree to this. The letters show that they were mailed in connection with the scheme, and for the purpose of carrying the same out. Whether the scheme was fraudulent or not was a question for the jury. Durland v. United States, 161 U.S. 306, 16 Sup.Ct. 508, 40 L.Ed. 709; Lemon v. United States, 164 F. 953, 90 C.C.A. 617.

It is further urged that the indictment is bad in not alleging that the letters set out therein were addressed to some person. The indictment alleges that the letters were deposited in the post office, addressed 'Mr. U.S. Willey, Whitewater, Colo.,' and 'Mr. Q. A. Woodward, Brush, Colo.' We are of the opinion that the criticism is too technical. Letters so addressed, in our judgment, were addressed to the respective addressees.

It results from what has been said that the demurrer and motion in arrest were properly overruled. It is assigned as error that the evidence was not sufficient to justify the verdict. While this assignment is argued by counsel for both sides, there was no ruling of the trial court upon which such an assignment could be based. A motion was made by counsel for the defendants at the close of the evidence for the prosecution for a directed verdict, but it was not renewed at the close of all the evidence, and was therefore waived. Neither was there any exception to the charge of the court. There remain to be considered, however, the assignments of error relating to the admission and rejection of evidence.

It is contended that the trial court erred in admitting in evidence United States Exhibit No. 7. This exhibit consisted of certified copies of a complaint, judgment, execution, and return thereon in the case of George S. Clayson, doing business as the Clayson Map Company, Plaintiff, v. The Riverside Land & Irrigation Company, a Corporation, Defendant, at one time pending in the county court, state of Colorado, county of Denver. It is said in the brief of counsel for the United States that 'the purpose for which said exhibit was introduced is evident, and for that purpose it is competent testimony. ' We regret if the purpose of the admission of this exhibit was evident to counsel that he did not think it best to inform us of that purpose, for we are involved in some doubt upon the subject. At the time the exhibit was first offered testimony was being given on the part of the United States for the purpose of showing that Wright and White ordered the maps and map literature which were circulated by the Riverside Land & Irrigation Company and which embodied the alleged false representations made by the defendants; the Clayson Map Company being the company which printed the maps and map literature. The complaint which forms a part of the exhibit alleges a cause of action for a balance of $424.20 for maps and map literature. The judgment rendered was upon default, and there is no recital in the judgment that any service of process was ever had upon the defendant, and nothing appears in the exhibit to show that the court had any jurisdiction over the defendant to render the judgment which it did. The return of the sheriff indorsed on the execution shows that $150 of the judgment was collected from the irrigation company, and a further certificate appears that a demand was made upon J. A. wright, president of the company, for the balance of the judgment, which Wright failed to pay. The exhibit, when offered, was objected to for the reason that there was no evidence that process had been served upon any one in the action, and that the same was incompetent, irrelevant, and...