Hartwell v. United States, 9135.

Decision Date16 November 1939
Docket NumberNo. 9135.,9135.
Citation107 F.2d 359
CourtU.S. Court of Appeals — Fifth Circuit

Winston F. Groom, of Mobile, Ala., and Horace C. Wilkinson, of Birmingham, Ala., for appellant.

Francis H. Inge, U. S. Atty., of Mobile, Ala., for appellee.

Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

Appellant was tried upon an indictment charging him in Counts 1 and 2, with violation of Section 1731(a), Title 12, U.S. C.A., and in Count 3, with violation of Section 338, Title 18, U.S.C.A. The charge of Count 1, drawn under the first sentence of the Section, was in substance that, the defendant Hartwell and another, for the purpose of obtaining from a bank, a mortgage loan to one McGee, in the sum of $2,500, and with the intent that such loan should be offered to or accepted by the Federal Housing Administration for insurance, falsely and fraudulently stated in writing that the property had been sold to McGee by the defendant Hartwell, for the purchase price of $3300, of which purchase price, $800 had been paid; whereas, the fact was that the property had been sold for $2950 and the amount actually paid was only $450, and the said statement had been made with the intent and purpose of influencing the action of the Federal Administration. The second count drawn under the second sentence of the Section, charged the same acts, and that they had been done for the purpose of influencing the action of the Administration with reference to insuring the loan. The third count charged the same acts as a scheme to defraud and that having devised and entered upon said scheme, the defendant placed and caused to be placed in the mails, a letter addressed to the Bank, containing said false statements. His voluminous grounds of demurrer, 16 to Count 1, 38 to Count 2, and 34 to Count 3 of the indictment, having all been overruled, there was, on May 11, 1939, a general verdict, finding him guilty as charged in the indictment and a judgment and sentence that he pay a fine of $250 and serve a year and a day in a penal institution, the penitentiary sentence to be suspended and defendant placed upon probation for a year and a day upon his paying the fine by June 15, 1939. Defendant gave timely notice of appeal, from the judgment of conviction, paid his fine on the date fixed in the sentence, for its payment and prosecutes his appeal without bill of exceptions and upon assignments that the court erred in overruling his demurrers.

Subject to its motion to dismiss the appeal because filed too late, and because defendant by paying the fine, accepted the judgment and sentence, and abandoned his appeal, the Government joins issue with appellant on the merits, insisting that each count of the indictment sufficiently charged appellant with the commission of an offense. Without discussing the motion to dismiss, other than to say; that the payment of the fine was not, and did not work, an abandonment of the appeal; and that, without regard to whether the assignment of errors was necessary or was timely filed, we have jurisdiction to and will consider the appeal and determine it on its merits, we deny it.1

Passing as too unsubstantial for consideration or comment, many of the matters urged in support of the demurrers; that, the indictment should have stated, but did not, that the property on which the loan was to be obtained was eligible for loaning; that the indictment does not allege that the purpose of the defendant, was to improperly influence any action of the Federal Housing Administrator; that the indictment is not sufficiently explicit to exclude the idea that in addition to the $450 paid in cash, $350 was paid in services or in some other way: we turn to a consideration of what seems to be the point most seriously urged. This is that Section 1731 (a),2 is directed against and embraces within its prohibitions only, the borrower for whom the loan or advance of credit is to be obtained.

Whatever might be said in support of such a narrowing construction of the first section of the act under which the offense charged in the first count of the indictment was drawn, "Whoever, for the purpose of obtaining any loan," etc., no warrant whatever can be found for putting such a limitation upon the second sentence of the Act, under which the second count is drawn. This denounces generally, the making of false statements "for the purpose of influencing in any way the action of the Administration." But, we think it plain, that the act must be considered as a whole and in the light of the purposes and objectives it was designed to achieve, and that so considered to place upon it, a construction which would limit its scope to borrowers alone, is an unreasonable narrowing of its scope and effect. In the Kay case,3 the statute prescribing that whoever willfully undervalues any security for the purpose of influencing the action of the Home Owners Loan Corporation shall be punished by fine or imprisonment or both, was held to extend to and embrace within its prohibitions, a person...

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24 cases
  • United States v. Johnson
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • November 6, 1941
    ...to avoid the danger of his again being prosecuted for the same offense should be held good." The Fifth Circuit said, in Hartwell v. United States, 107 F.2d 359, 362, "While it is certainly true that a valid indictment cannot be dispensed with as a predicate to conviction where an indictment......
  • Butler v. District of Columbia, 3413.
    • United States
    • D.C. Court of Appeals
    • April 30, 1964
    ...(2d Cir. 1961); Funkhouser v. United States, supra, note 8; Pledger v. United States, 272 F.2d 69 (4th Cir. 1959); Hartwell v. United States, 107 F. 2d 359 (5th Cir. 1939). 10. See also, cases cited in notes 5-8, 11. See the discussion of Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.......
  • US v. Treadway
    • United States
    • U.S. District Court — Western District of North Carolina
    • September 4, 1990
    ...can prepare his defense and protect himself against double jeopardy, is sufficient." Finn, supra, at 307, quoting Hartwell v. United States, 107 F.2d 359, 362 (5th Cir. 1939). Further, "an indictment will be construed more liberally after verdict than before, and every intendment is then in......
  • United States v. Henderson, S-74 Cr. 866.
    • United States
    • U.S. District Court — Southern District of New York
    • November 20, 1974
    ...(scheme to secure a public contract on more favorable terms than otherwise available by bribing a public official); Hartwell v. United States, 107 F.2d 359 (5th Cir. 1939) (fraudulently overstating the purchase price of property, for the purpose of obtaining a loan for the purchaser and sec......
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