Kellogg v. United States

• Decision Date: 25 November 1903
• Docket Number: 30.
• Citation: 126 F. 323
• Parties: KELLOGG v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

126 F. 323

KELLOGG v. UNITED STATES.

No. 30.

United States Court of Appeals, Second Circuit.

November 25, 1903

A. J Ross, for plaintiff in error.

Wm Ford Upson and Ernest E. Baldwin, for the United States.

Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

LACOMBE Circuit Judge.

The relevant parts of the statute read as follows:

'If any person having devised or intending to devise any scheme or artifact to defraud, * * * to be effected by either opening or intending to open correspondence or communication with any person, whether resident within or outside of the United States, by means of the post office establishment of the United States, or by inciting such other person or any person to open communication with the person so devising or intending, shall in and for executing such scheme or artifice or attempting so to do, place or cause to be placed, any letter, packet, writing, circular, pamphlet, or advertisement in any 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, or shall take or receive any such therefrom, such person so misusing the post office establishment shall, upon conviction, be punishable by a fine of not more than five hundred dollars and by imprisonment for not more than eighteen months, or by both such punishments, at the discretion of the court. ' Rev. St. Sec. 5480 (U.S. Comp. St. 1901, p. 3696).

It is apparent that the offense covered by the statute is the misuse of the post office. To constitute the offense the defendant must 'use' the post office, either by sending or receiving mail matter therefrom. Such use must be in and for executing or attempting to execute a certain scheme or artifice. Such scheme or artifice must be one to defraud, and also one to be effected by opening or intending to open correspondence, etc., as above set forth.

The first assignment of error raised by the defendant is that the two counts under which he was convicted are bad because they wholly fail to allege that the use of the mails was part and parcel of the alleged scheme. Various authorities are cited, which need not be discussed; no doubt they accurately set forth the law applicable to the concrete cases with which they are concerned. It will be sufficient to ascertain what this indictment alleges, and it will be necessary to examine only the first count. The indictment is constructed in the intricate and archaic manner which still characterizes criminal pleadings. It is to be hoped that there will come a time when such documents will be expressed in plainer and more intelligible language. Analysis of the first count discloses the following averments against the defendant:

That 'James B. Kellogg * * * (the names of other persons united with him in the scheme are omitted from quotation) on January 3, 1897, * * * unlawfully, willfully, and knowingly did place in the post office of the United States, to be sent and delivered by the said post office establishment, a letter and packet directed to * * *, which letter and packet contained a * * * a book (entitled) 'Sixth Annual Statement of Dean's Safe System.''

That Kellogg placed this letter and package in the post office 'in and for executing and attempting so to do a scheme and artifice to defraud which he had devised.'

That Kellogg and others named heretofore (in this district), 'and prior to the 3d day of January, 1897, * * * carrying on business under the style and corporate name of the E. S. Dean Company, as stockbrokers, had devised a scheme and artifice to defraud by inducing and procuring the sending and intrusting of moneys to them, under that style and name, by divers others persons for investment and employment thereof in trade and commerce for the use and benefit of the several persons who should so send and intrust such moneys, which inducement and procuring were effected under and by means of false, fictitious, and fraudulent statements and representations made by said accused, and known to them to be thus false, fictitious, and fraudulent, relating to the past successes, present status and conditions, and the prospects of the E. S. Dean Company and its undertakings.'

That 'said scheme and artifice was to be effected by opening correspondence and communication with those persons (i.e., the divers other persons whose money as to be sent) by means of the post office establishment of the United States, and by inciting them to open correspondence with the said E. S. Dean Company by means of said post office establishment.'

The count sets forth copious excerpts from the book, and avers that they were false, and known to be false when made.

The second count contains an averment, in the same words used in the first count, that the 'said scheme and artifice was to be effected by opening correspondence and communication with those persons by means of the post office...