Hartzell v. United States, No. 9954.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: GARDNER and SANBORN, Circuit , and DEWEY
• Citation: 72 F.2d 569
• Parties: HARTZELL v. UNITED STATES.
• Decision Date: 24 September 1934
• Docket Number: No. 9954.

72 F.2d 569 (1934)

HARTZELL
v.
UNITED STATES.*

No. 9954.

Circuit Court of Appeals, Eighth Circuit.

August 16, 1934.

Rehearing Denied September 24, 1934.

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Carlos W. Goltz, of Sioux City, Iowa (P. M. Young, of Mitchell, S. D., on the brief), for appellant

Harry M. Reed, U. S. Atty., of Waterloo, Iowa, and D. C. Browning, Asst. U. S. Atty., of Sioux City, Iowa (John S. Pratt, Sp. Asst. to the Atty. Gen., and Glenn B. Beers, Asst. U. S. Atty., of Waterloo, Iowa, on the brief), for the United States.

Before GARDNER and SANBORN, Circuit Judges, and DEWEY, District Judge.

GARDNER, Circuit Judge.

Appellant, who will be referred to herein as defendant, was indicted for the violation of section 338, USCA, title 18, section 215 Criminal Code, in an indictment containing fifteen counts. During the trial, counts 8, 9, and 12 were dismissed by the government, and the defendant was found guilty on the remaining counts.

The scheme to defraud as charged in the indictment consisted in representing that defendant was about to recover from the British government from five to twenty-two billions of dollars in gold, jewels, and real estate; that this vast estate would be distributed

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to donors to a fund, to be used by defendant in recovering the estate, in proportion to contributions made by donors; that defendant had discovered the only living heir of Sir Francis Drake, the great navigator and buccaneer, who died about 1596; that this only surviving heir had assigned to defendant in 1922 or 1923 his interest in the Drake estate, and that the Lord Chancellor of England had looked over and passed upon the genealogy of this heir, and had agreed that defendant's assignor was the only living heir of Drake, and was directing the checking of the returns from Drake's property to make sure that defendant was paid, not only the value of the property, but all income and increase therefrom from the date of Drake's death to the date of payment

During the time of the commission of the crime charged in the indictment in all its parts, defendant lived in London, England. He induced some twenty agents located in various parts of the United States to solicit funds for the avowed purpose of using them to get possession of the alleged Drake estate. It is charged that the representations about the Drake estate were false and that the scheme was a scheme to defraud.

While it is claimed on this appeal that the evidence is insufficient to sustain the verdict on the various counts, the substantial questions presented relate to alleged errors of law occurring at the trial, or preliminary thereto. Despite the palpable fraud in the representations made, and the incredible nature of the representations of defendant and his agents, they seem to have fired the imagination and dulled the sense of reason of many honest people who relied on them, and during some ten years of activity defendant received, through his various agents in the United States from $700,000 to $800,000 in cash.

Specifications of error urged by defendant occupy sixty pages of the printed brief. It will not be possible to consider in detail all of these alleged errors. The object of the rule requiring an assignment of errors is to enable the court and opposing counsel to determine on what points appellant's counsel intend to seek a reversal of the judgment, and to limit the discussion to such points; but, where there is an unlimited assignment, it amounts to a perversion of the rule, defeats its purpose, and bewilders both court and counsel. While we have laboriously gone through this entire record and considered each specification of error, we shall attempt, as far as possible, to group the questions presented and limit our discussion to such points as impress us as being substantial.

I. Each count of the indictment sets forth in detail the representations alleged to have been made. Defendant interposed a motion for bill of particulars which was denied, and this action of the court is urged as error. It is contended by defendant that the indictment charges the falsity of these representations in general language. Summarizing these allegations of representations into as narrow a statement as possible, they charge: (1) That defendant had discovered the only living heir of Sir Francis Drake; (2) that the genealogy of such heir had been definitely established and approved by the high British authorities; (3) that defendant had secured an assignment to himself from such heir; (4) that the British government had recognized his right to the possession of the vast Drake estate; (5) that he was obliged to expend large sums of money for the fees of lawyers and experts, and other necessary expenses, in order to assure the delivery of the estate to him; (6) that the amount of the necessary expenditures was a weekly minimum of $2,500; (7) that the persons who contributed money to assist him in meeting the expenses would be repaid on the basis of at least $1,000 for every dollar contributed; (8) that he was a British subject, and would soon receive a title; (9) that Sir Francis Drake died, leaving a son, and at the death of Sir Francis Drake his estate was fraudulently administered by a brother of Sir Francis Drake; (10) that he (defendant) had discovered the rightful heir, but that the genealogy had to be passed upon "by the highest powers that be"; (11) that the genealogy of Drake was made final in August, 1923, by the Lords' and King's Commission; (12) that from the time the heir was established in 1923 until August, 1925, defendant had been engaged in checking up the property and its accumulations; (13) that since August, after the baronetcy was established, he was getting all details ready to take possession of everything that followed the title under the law of to-day; (14) that this law was passed thirty or forty years ago, and gave to the rightful heir his right to transfer all property and everything that followed the title; (15) that the contributors could see that everything which belonged to Sir Francis Drake at his death would have to be accounted for by the Crown and subsequently turned over to the defendant; (16) that the genealogy had been presented to the Crown Commission, which was the highest power in the British Empire, and

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could not be attacked by the courts; (17) that since the death of Drake there had always been a dispute which accounted for the Crown's control and supervision of everything that belonged to the estate of Sir Francis Drake; (18) that the Crown confiscated the whole thing from the parties in possession and turned it over to the rightful heir in the baronetcy; (19) that it was said by people in high finance that the amount of the estate was considerably over the combined debt of Great Britain to the United States of America and all the other countries' indebtedness to Great Britain, and that it amounted to $22,500,000,000; (20) that the contributors could figure up all the land in the state of Iowa at an average price of $125 per acre and all the stock and bank deposits in Iowa, as well as the railroads and cities combined, and that defendant could buy the whole lot and put a fence around the whole state, and still have more money left than the contributors ever thought of; (21) that, if the contributors had all over and above $5,000,000,000, they could buy the whole city of Des Moines and build a fence around it; (22) that every tree, load of wood, and timber that had been cut off the lands since the death of Drake was accounted for, as well as the accumulation of moneys, and money from rock quarries, brickyards, pottery, clay, minerals, ores, fishing rights, income from railroad lands, and all rents from properties that had been accumulated; (23) that this money had been working for over three hundred years, both in the ecclesiastical and governmental departments; (24) that the nation of Great Britain was the one which owed this bill, and that nation was reliable, safe, and sound, and had verified defendant's claim; (25) that the original documents had been sealed and locked away in the archives, and that five copies were in the hands of the people who should have them; (26) that all moneys, properties, lands, title deeds, heirlooms, and personal effects of the late Sir Francis Drake and his heirs were to be handed over to defendant with the utmost possible speed; (27) that defendant had been recognized by King George, but that he had not gone through the formality of recognition; (28) that defendant was the only real Sir Francis Drake, and that everything belonged to him, and his claim had been O. K.'d by the Crown; (29) that, by reason of an error, certain papers and charts had to be made out afresh which meant an extra benefit to him of 250,000 pounds sterling; (30) that the expense that was attached to the balance sheet ran from $3,000 to $5,000 a week, and had so run since the middle of August; (31) that the day of the finish he would send a copy of the London Gazette, the only official government paper printed in London, which would tell the contributors of defendant's name being changed on deed poll to Francis Drake, and that thereafter he would be raised to the peerage, the crests for which had already been made

Defendant in his motion asked that the government be required to set out what was false about each of the claims just summarized above. In each instance defendant asked the government to set out what was false about his alleged representation. There are doubtless many instances under which, in order to comply with the constitutional requirement of certainty in the accusation, an indictment should not only allege the falsity of the misrepresentation, but allege affirmatively in what the falsehood consists. The indictment here, however, fairly apprised defendant of the charge...