Looker v. United States

• Decision Date: 13 March 1917
• Docket Number: 15.
• Citation: 240 F. 932
• Parties: LOOKER v. UNITED STATES. [a1]
• Court: U.S. Court of Appeals — Second Circuit

240 F. 932

LOOKER v. UNITED STATES. ^[a1]

No. 15.

United States Court of Appeals, Second Circuit.

March 13, 1917

William J. Kearns, of Newark, N.J., and James A. Hamill, of Jersey City, N.J., for plaintiff in error.

H Snowden Marshall, U.S. Atty., and John C. Knox, Asst. U.S Atty., both of New York City.

Before COXE, WARD, and HOUGH, Circuit Judges.

HOUGH Circuit Judge.

Although the indictment contained seven counts upon which the jury found Looker guilty the variations between the counts being only in respect of the persons defrauded, and the letters mailed, a summary of one charge is sufficient for the purposes of this writ.

The charge was that Looker, with one McLaughlin (who died before trial), devised a scheme for obtaining money by false pretenses from divers persons, by means of selling the stock and debenture certificates of a corporation, hereinafter called the Monaton Company, and thereupon in furtherance thereof sent by mail copies of a resolution of the directors of the Monaton Company and circular letters to divers persons, naming them in the several counts.

The assignments of error are reducible to two heads: (1) That the evidence did not lawfully warrant conviction; (2) that the error in admitting certain evidence was not cured by subsequently striking it out.

1. While we are far from thinking that this case is near the line of doubt, it must be remembered that it is not necessary, in order to uphold a jury's verdict upon indictment, that the appellate or other court should be satisfied beyond a reasonable doubt of the guilt of the accused. Courts pass on the competency, relevancy, and materiality of the evidence, and are not required to leave to juries speculation on points of accusation, plainly opposed to the weight of unimpeached testimony. But, where there is substantial evidence pointing to guilt, it is the reasonable doubt of the jury, and not that of the court, which is to be considered. Matthews v. United States, 192 F. 490 113 C.C.A. 96; Crumpton v. United States, 138 U.S 361, 11 Sup.Ct. 355, 34 L.Ed. 958; Humes v. United States, 170 U.S. 210, 18 Sup.Ct. 602, 42 L.Ed. 1011.

The evidence below fully showed that Monaton Company was a duly incorporated concern, having for its chartered purpose the acquisition of real property and the management thereof in such manner that from its gains it might pay dividends on preferred stock, 4 per cent. on 'profit-sharing premium certificates,' and 6 per cent. on other 'certificates,' apparently of several kinds. The exact nature of the documents issued is not material, further than to point out that whatever value they possessed rested wholly on the Monaton's ability to get, keep, and profitably manage realty in New York City. So far as shown it operated nowhere else.

Generically this is a familiar business, and entirely lawful. But these assumptions do not render it impossible, nor even difficult, so falsely to represent the condition of an actual and lawful business as to render it a mere vehicle and excuse for fraud. Indeed, the most dangerous and reprehensible swindles usually consist in building a scheme of deception upon a foundation lawful per se. McConkey v. United States, 171 F. 829, 96 C.C.A. 501, and cases cited.

Monaton Company was organized in 1907, and Looker had nothing to do with it until some time later, when he left the employ of another realty enterprise, entered that of Monaton Company and before the end of 1912 was its president. It is strongly urged upon us that defendant below left one lawful occupation to enter another, did so with a good reputation, got nothing out of the Monaton Company but a salary, larger to be sure than any theretofore received by him, but fully earned, and therefore (it is said) he could not be guilty of anything more heinous than hoping against hope that business would improve, and should not be condemned, even if continued hard times...