Hatem v. United States, 3019.

• Decision Date: 27 June 1930
• Docket Number: No. 3019.,3019.
• Citation: 42 F.2d 40
• Parties: HATEM v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

42 F.2d 40 (1930)

HATEM v. UNITED STATES.

No. 3019.

Circuit Court of Appeals, Fourth Circuit.

June 27, 1930.

Charles L. Abernethy, Jr., and Charles L. Abernethy, both of New Bern, N. C. (A. D. Ward, George T. Willis, and Abernethy & Abernethy, all of New Bern, N. C., on the brief), for appellant.

Irvin B. Tucker, Sp. Asst. U. S. Atty., of Whiteville, N. C. (W. H. Fisher, U. S. Atty., of Clinton, N. C., on the brief), for the United States.

Before NORTHCOTT, Circuit Judge, and WATKINS and SOPER, District Judges.

NORTHCOTT, Circuit Judge.

Appellant was convicted in the District Court of the United States for the Eastern District of North Carolina, in June, 1929, of using the United States mails in furtherance of a scheme to defraud, in violation of section 215, of the Criminal Code (18 USCA § 338). There were five counts in the indictment. Counts 2 and 4 were dismissed, and a general verdict of guilty was returned on counts 1, 3, and 5. Upon the verdict the court sentenced appellant, who will be hereinafter referred to as the defendant, to be imprisoned for a year and a day at Atlanta, Ga., and to pay a fine of $250 on count 1, to be imprisoned for a year and a day and to pay a fine of $250 on count 3, and to be imprisoned for one year and a day on count 5; the sentences of imprisonment to run consecutively and not concurrently, from which judgment this appeal was taken.

There are a number of assignments of error, more than fifty, but an examination of the record convinces us that we need not consider them all in detail. The main point relied upon by defendant is the admission of evidence on the trial, of acts of the defendant subsequent to the acts charged in the indictment. The defendant was charged with using the mails, while pretending to be engaged in the retail merchandise business at New Bern, N. C., for the purpose of defrauding various foreign merchants by ordering goods from them, for which he never paid or intended to pay. On the trial evidence was admitted that the defendant afterward carried on the same scheme and artifice to defraud, at Pinehurst, in the state of North Carolina.

Such evidence was clearly admissible, provided that the jury was properly charged by the judge below, as to the purpose for which it was introduced, and as to the consideration that the jury should give it. It is a long-established doctrine that in cases involving fraud, or the intent with which an accused does an act, "collateral facts and circumstances, and his other acts of a kindred character, both prior and subsequent, not too remote in time, are admissible in evidence." Moffatt v. United States (C. C. A.) 232 F. 522. See, also, Allis v. United States, 155 U. S. 117, 15 S. Ct. 36, 39 L. Ed. 91.

It is contended on behalf of appellant that the judge did not properly charge the jury with respect to the introduction of this evidence, but an examination of the judge's charge, as certified by him, shows that this point was fully covered. A transcript of the judge's charge, made by a stenographer, who was not sworn, was attempted to be introduced to prove that the record, as certified by the judge, was not correct.

A letter, from the judge to attorneys for the defendant, was included in the record in which the judge stated that he had no objection to the transcript of the stenographer being considered so that this court might decide whether it would follow the stenographer's report or the certificate of the trial judge. An order was entered requesting the trial judge to certify the correctness of the charge, as set out in the record by him, as being the charge delivered. The judge below made the following answer to this request:

"The undersigned trial judge in the above entitled cause charged the jury in accordance with the language set out in the record certified to by him and as in substance set forth in section one, page one, of the Order of the United States Circuit Court of Appeals herein, and that an account of the charge embracing the unofficial stenographic report of the charge is not complete in many important particulars and where complete is inaccurate. If the unofficial stenographic report fails to embrace in it the language or the substance thereof as set out in section one of the said order of the said Circuit Court herein then such report should be corrected so as to speak the truth."

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