Grey v. United States

• Decision Date: 13 April 1909
• Docket Number: 1,488.
• Citation: 172 F. 101
• Parties: GREY v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

172 F. 101

GREY v. UNITED STATES.

No. 1,488.

United States Court of Appeals, Seventh Circuit.

April 13, 1909

Rehearing denied May 13, 1909.

E. N Zoline, for plaintiff in error.

Edwin W. Sims, U.S. Atty., F. G. Hanchett, and Seward S. Shirer for the United States.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

BAKER Circuit Judge.

Plaintiff in error was convicted of using the mails in aid of a scheme to defraud. Section 5480, Rev. St. U.S. (U.S. Comp. St. 1901 p. 3696). Briefly the scheme charged was that plaintiff in error obtained matrimonial agency fees from men by the false pretense that she had been commissioned by a rich and beautiful widow to find her a husband, and from women by the lure of a fictitious 'retired business man, wealthy, but lonesome.'

The indictment was not challenged by demurrer or motion to quash; but a motion in arrest of judgment was overruled. No question is made but that the scheme to defraud was fully stated. The second element, namely, the intention to effect the scheme by 'correspondence * * * by means of the post office establishment of the United States,' was alleged as follows:

'Which said scheme and artifice was a scheme and artifice which the said Marion Grey, when devising the same and committing the several offenses hereinafter in this indictment mentioned, intended to effect, and which said scheme and artifice then and there was a scheme and artifice to be effected, by inciting, by means of said advertisements, the said persons so intended to be defrauded as aforesaid to open communication with her under the respective styles, 'Box 104, Elgin, Ill.,' and 'Box 94, Elgin, Ill.,' by means of the post office establishment of the said United States, and by thereupon opening correspondence with those persons respectively under the name of the Searchlight Club, per Marion Grey, Mgr., by means of the post office establishment of the said United States.' As the remaining element the statute says the accused--

'shall, in and for executing such scheme or artifice, or attempting so to do, place or cause to be placed, a letter, packet, writing, circular, pamphlet or advertisement in a post office, branch post office, or street or hotel letter box of the United States, to be sent or delivered by the said post office establishment.'

The indictment averred that plaintiff in error--

'in and for executing said scheme and artifice, and in and for attempting so to do, and in and for defrauding by and through that scheme and artifice one William Grable, then resident at Dearborn, in the state of Missouri, unlawfully, willfully and fraudulently did place and cause to be placed in the post office of the said United States, at Elgin aforesaid, to be sent and delivered to the said William Grable, at Dearborn aforesaid, by the said post office establishment of the said United States, a certain circular, to wit.'

The criticism of the averment of the second element is that the intent to use the mails was not declared to be a part of the scheme devised by plaintiff in error; and of the statement of the third element the complaint is made that there is no allegation that the circular was inclosed in an envelope or wrapper, and stamped and addressed, or that the contents of the circular were false. It will be observed that the averments substantially follow the language of the statute. Ordinarily this is sufficient, even against a demurrer or motion to quash. Potter v. U.S., 155 U.S. 438, 15 Sup.Ct. 144, 39 L.Ed. 214; Pounds v. U.S., 171 U.S. 35, 18 Sup.Ct. 729, 43 L.Ed. 62; Konda v. U.S. (C.C.A.) 166 F. 91. Here there is no complete omission of some material element. If it were conceded that the criticisms are just, they are of the kinds that are cured by verdict. Section 1025, Rev. St. U.S. (U.S. Comp. St. 1901, p. 720); Connors v. U.S., 158 U.S. 408, 15 Sup.Ct. 951, 39 L.Ed. 1033; Rosen v. U.S., 161 U.S. 29, 16 Sup.Ct. 434, 40 L.Ed. 606; Armour Packing Co. v. U.S., 209 U.S. 56, 28 Sup.Ct. 428, 52 L.Ed. 681. Whether the contents of the circular were true or false was immaterial. The letters or circulars that are mailed need only be 'in and for executing' the scheme to defraud. U.S. v. Hoeflinger (D.C.) 33 F. 469; Durland v. U.S., 161 U.S. 307, 16 Sup.Ct. 508, 40 L.Ed. 709.

The indictment contained three counts. In each the same scheme to defraud was set forth. In the first it is charged that a letter was mailed to John Peckett, in the second to William Grable, and in the third to Minnie Coleman. Plaintiff in error was acquitted on the first and third counts. Her counsel now contends that this cancels the conviction on the second count. The argument is that since the jury, in passing on the first and third counts, found that the scheme was not fraudulent, a finding on the...