Lane v. United States

• Decision Date: 29 August 1929
• Docket Number: No. 8266.,8266.
• Citation: 34 F.2d 413
• Parties: LANE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

34 F.2d 413 (1929)

LANE et al. v. UNITED STATES.

No. 8266.

Circuit Court of Appeals, Eighth Circuit.

August 29, 1929.

Thomas J. Lane and Ernest L. Kime were convicted of placing letters in mail to defraud, and they bring error. Reversed and remanded, with directions.

Eustace C. Wheeler, of St. Louis, Mo., for plaintiffs in error.

C. J. Stattler, Asst. U. S. Atty., of St. Louis, Mo. (L. H. Breuer, U. S. Atty., of Rolla, Mo., and George C. Dyer, Asst. U. S. Atty., of St. Louis, Mo., on the brief), for the United States.

Before STONE, BOOTH, and GARDNER, Circuit Judges.

GARDNER, Circuit Judge.

In this case plaintiffs in error, Thomas J. Lane and Ernest L. Kime, hereinafter referred to as defendants, were indicted in an indictment containing six counts, and which charges the defendants with having devised and intending to devise a scheme for the obtaining of money and property by means of false and fraudulent pretenses, representations, and promises, and with having placed and caused to be placed in the post office of the United States at St. Louis, Mo., for mailing and delivery, the six letters set out in the indictment. The indictment generally charges that there was organized and caused to be organized, by the defendants and others, a corporation known as the International Motor Transit Company of Iowa, and that through this corporation the defendants made and caused to be made the alleged false and fraudulent pretenses, representations, and promises charged in the indictment, as an aid to them in obtaining money and property from the public, or any one with whom they might be able to come in contact.

The alleged scheme for obtaining money and property by means of false pretenses was in substance to the following effect: That the defendants would offer for sale to the victim contracts issued in the name of the International Motor Transit Company of Iowa, whereby the defendants, under the name of International Motor Transit Company of Iowa, would agree to furnish trucks and would agree to furnish freight for hauling to the victims, and would pay to the victim certain sums stipulated and agreed to by the defendants and victim for the services rendered by them to the defendants, the price of the truck being agreed upon and stipulated in such contract; that as a part of and in furtherance of said scheme the defendants established offices in the city of St. Louis, Mo., and that data relating to the plans and prospects of said corporation, and the defendants' operation thereof was furnished from said office in St. Louis; that said data and information was circulated by means of news items and advertisements inserted in newspapers, and by means of the United States mails, and by personal solicitation and representation through agents and representatives employed by the defendants, under the name of the International Motor Transit Company of Iowa.

It is charged that, in furtherance of this scheme to defraud, certain letters as set out in the indictment were sent out through the mails. The indictment contains no specific charge of conspiracy. In addition to these defendants here named, there were joined with them as defendants in the indictment Glenn R. Cushman, J. W. McKinley, and J. W. Lane. The case was, in effect, dismissed as to the defendants J. W. McKinley and J. W. Lane. Glenn R. Cushman failed to appear, although a party defendant, and all of the letters set out in the indictment were signed by Cushman. It will be borne in mind that only Thomas J. Lane and Ernest L. Kime were in fact tried.

The jury found the defendant Lane guilty on count 4 of the indictment, and not guilty as to all other counts, and found the defendant Kime guilty on counts 2, 3, 4, 5, and 6, and not guilty on count 1. Their motion in arrest of judgment, as well as their motion for a new trial, was overruled. Lane was sentenced to imprisonment for a term of four years, and Kime was sentenced to imprisonment for a term of four years on each count; the sentences to begin, run, and terminate concurrently. Upon this appeal a number of specifications of errors are presented, many of which, in the view we take of the case, it will not be necessary to consider.

In the course of the trial the government produced a witness by the name of W. L. Noah, a post office inspector. He testified, among other things, to having met Glenn R. Cushman, indicted with the defendants, but not on trial, and that he had had a conversation with Cushman. No time was given when the conversation took place, and the following, relative to this conversation, appears from the record:

"Q. Tell the jury when and where, Mr. Noah. A. That was the first time, about the first time, I heard of the International Motors Transit Company of Iowa.

"Mr. Bass: I object to any conversation with Cushman. Cushman is not now on trial.

"The Court: Cushman is not here, Mr. Stattler, and not on trial.

"Mr. Stattler: These men were all working together; that has been shown, and it goes to the question of their intent.

"The Court: Here in St. Louis, were these defendants connected with them?

"Mr. Stattler: Yes; and if there was any conversation about these other operations, where these defendants were connected, I also want that statement.

"The Court: Where Cushman was connected with the defendants?

"Mr. Stattler: Only where Cushman was connected with these defendants, or either of the defendants.

"Mr. Bass: Unless these two defendants were present at such conversations as this witness is about to narrate, between himself and Cushman, I contend it is not competent; Cushman not being on trial. It does not in any wise affect any issue in this case, except as it might pertain to Cushman, and we object to it for that reason.

"The Court: I think it ought to be limited to conversations concerning the Davenport Company.

"Mr. Stattler: Very well; if that is the way the court feels about it, we will limit to that."

To which ruling the defendants duly excepted. Pursuing this line of testimony further, the following appears from the record:

"Q. You may tell the jury what it was that Cushman said to you. A. Well, he said that this scheme, of course, had been worked in a number of places, and that it was not feasible; that he had served time in jail for operations of the same kind.

Mr. Bass: I will ask that that be stricken out, and the jury be instructed to disregard it. This certainly is incompetent, and is only offered to prejudice the minds of the jurors.

"The Court: The objection will be overruled.

"Mr. Bass: A statement made by Cushman that he served time in jail for this sort of thing is not pertinent to any issue here.

"The Court: Objection overruled. (To this ruling the defendants duly excepted.)

"The Witness (continuing): And that he was getting tired of serving time for other fellows; that he didn't get anything out of it personally, except a lot of abuse, and that the other men had gotten the money, and he was ready to tell the whole story.

"Mr. Stattler: That was in this connection? A. That was in connection with the International Motor Transit Company.

"Mr. Bass: I hate to be insisting, but I must once more move the court to strike from this record the testimony just given by Mr. Noah, relative to the statement of Cushman, that portion of it elicited by the last question put by the government's counsel, for the reason that same does not show, or tend to prove, anything affecting the scheme, if there were such a scheme as charged in this indictment; that it does not in any...