Holsman v. United States

• Decision Date: 18 February 1918
• Docket Number: 3015.
• Citation: 248 F. 193
• Parties: HOLSMAN et al. v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

248 F. 193

HOLSMAN et al. v. UNITED STATES. ^[1]

No. 3015.

United States Court of Appeals, Ninth Circuit.

February 18, 1918

The plaintiffs in error, with others, were indicted, charged with conspiracy to commit an offense against the United States namely, the offense of devising and intending to devise a scheme and artifice to defraud, to be accomplished by placing and causing to be placed in the United States post office at Los Angeles, Cal., letters, packages, circulars, and advertisements, to be delivered through the post office establishment, whereby Freeman should be represented to be a practicing physician, especially and specifically qualified to treat certain diseases of men, who could and would cure persons so afflicted, thus causing such persons to open correspondence with Freeman, giving the symptoms of their trouble, whereupon the said Freeman would represent to such persons that he could cure their afflictions and restore them to health, and thereby induce such persons to take treatment of him, for which he would require them to pay him such stipulated sums as he desired to fix; and it is further alleged that said statements representations, and advice, so intended to be so made and given, were not intended by the defendants to be made in good faith, but were intended to be made and given for the purpose of inducing said persons to believe they were seriously afflicted with the said certain diseases, regardless of the fact as to whether they were so afflicted or not, and to induce such persons to send their money to defendants in cases where no treatment at all, physical or mental, was needed. For effecting the object of their alleged conspiracy certain overt acts are set forth.

Holsman and Freeman were tried separately from the other defendants, and were convicted, and the cause is here on writ of error prosecuted by them.

Duke Stone, M. E. Meader, and Ralph Woods Pontius, all of Los Angeles, Cal., for plaintiffs in error.

Albert Schoonover, U.S. Atty., and Clyde R. Moody and Wm. Fleet Palmer, Asst. U.S. Attys., all of Los Angeles, Cal., for the United States.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District judge.

WOLVERTON District Judge (after stating the facts as above).

A demurrer to the indictment was overruled, and the action of the court in that respect is assigned as error. The specific reason advanced, challenging the sufficiency of the indictment, is that it in no way alleges fraudulent intent on the part of the defendants in doing what they are charged with doing.

The offense with which the defendants are charged is conspiracy to commit another offense denounced by Congress, namely, devising or intending to devise a scheme to defraud. The indictment does plainly charge that the defendants did knowingly and unlawfully conspire to commit the offense. This is formal, however, and it should further appear by reasonable intendment that what they are charged with conspiring to do was done with willful intent. While the word 'willful,' or its equivalent, is not in the indictment, other language is employed which is clearly indicative of an intent to defraud. The indictment shows that the acts alleged to have been done were done with the purpose of inducing persons to believe they were afflicted with a serious disease, when in fact they were not so afflicted, and this wit the ultimate purpose of getting from such persons money to which the defendants were not entitled, by reason of not having rendered any service whatsoever. This shows very plainly the intent with which the acts were committed, and they were necessarily and essentially fraudulent.

Where the facts alleged necessarily import willfulness, the failure to use the word itself is not fatal. Van Gesner v. United States, 153 F. 46, 82 C.C.A. 180.

So, in the present case, fraudulent intent on the part of though not specifically averred, appears more than inferentially from the indictment. The very scheme alleged to have been devised is impregnated with fraud, and an intent to defraud cannot be dissociated from the device. The demurrer was properly overruled.

The next assignment of error relates to the cross-examination of Dr. Fuller. In his examination in chief he had related that, in the summer of 1912, he saw the defendant Holsman at the office of Dr. Freeman, and that Holsman had charge of the office during Freeman's absence; that when witness began working in May, 1912, the office was located at No. 305 1/2 South Spring street, and was shortly afterwards removed to No. 327 1/2, same street; that he saw Dr. Holsman at the latter place; that Holsman was around there about three weeks in the latter part of July, and had charge of the office during Dr. Freeman's absence. On cross-examination, the defendants attempted to show by the witness what the equipment of the office was, and the supply of drugs kept there, which, on objection, they were not allowed to prove. The matter was in a measure germane to the examination in chief. The court, however, has a wide range of discretion respecting cross-examination, and it is by no means apparent that the exercise of such discretion in thus curtailing the examination affected the defendants injuriously. The inquiry pertained to the association together of Holsman and Freeman, and the manner of equipment, etc., of the office had but little bearing, if any at all, upon the subject.

An affidavit subscribed and sworn to by Freeman, wherein it is recited that Holsman was one of the persons practicing, or assisting in the practice of medicine and surgery in his, Freeman's office, situated at 305 1/2 South Spring street, was admitted in evidence over the objection of Holsman that what was said in the affidavit was not binding upon him. It does not appear that the affidavit was made in furtherance of the conspiracy, or to effectuate its purposes. Indeed, it was made at a date previous to the time when it is alleged by the indictment that the conspiracy was entered into, and it should have been rejected as to Holsman. We think, however, the error was cured by instruction to the jury as follows:

'The court further instructs you that, while the acts or declarations of a coconspirator cannot prove the existence of the conspiracy itself, any act or declaration done or made by one of the conspirators during the existence and in furtherance of the unlawful combination, when proven, is not only evidence against him, but is evidence against the other conspirator who, if the combination be proved, is as much responsible for such act or declaration as if done or made by himself. You must not, however, permit yourselves to use against either defendant anything said or done outside the presence of such defendant, unless you believe from the evidence, beyond a reasonable doubt that at the time the things were said or done a conspiracy existed between the party saying or doing the things and the defendant t be effected thereby. In such a case it is only those things said or done in furtherance of the objects of the conspiracy which are chargeable against the other member or members of such conspiracy.'

The next assignment of error relates to the admission in evidence of two bound volumes of the Los Angeles Examiner, containing advertisements of the defendant Freeman. Previous to the admission of such volumes, certain of Freeman's advertisements had been introduce under stipulation of counsel that they should be allowed to go to the jury. The advertisements contained in the two volumes are similar to those admitted under the stipulation; they being simply a continuation of Freeman's advertising in the same journal. It is not at all apparent that their admission proved harmful to defendants.

The next assignment pertains to the admission of certain decoy letters and the answers thereto in evidence. The objection urged by counsel in their brief is to the effect that the letters were admitted without showing that they were received at the office of the defendant Freeman, and that certain replies, purporting on their face to come from his office, were received by the post office inspectors who caused the decoy letters to be sent. It was stipulated between the government and the defendants Freeman and Holsman that these letters were received, through the post office department, at the office of Freeman, and that the replies were transmitted through the mail from said office, and nothing was left for the determination of the court except the competency thereof as evidence fit to go to the jury.

That the letters were competent is beyond question. The inspectors in no way became parties to the alleged conspiracy in sending the decoy letters. Their course was adopted simply for the purpose of ascertaining whether the law was being violated by the defendants, which resulted in obtaining pertinent evidence tending to show such violation of...