Mackett v. United States
Decision Date | 25 June 1937 |
Docket Number | No. 6160,6161.,6160 |
Citation | 90 F.2d 462 |
Parties | MACKETT v. UNITED STATES. HANECY v. SAME. |
Court | U.S. Court of Appeals — Seventh Circuit |
Lyman G. Wheeler, of Milwaukee, Wis., for appellant Frank Mackett, Jr.
Charles E. Hammersley and Ira S. Lorenz, both of Milwaukee, Wis., for appellant William E. Hanecy.
B. J. Husting, U. S. Atty., and L. Hugo Keller, Asst. U. S. Atty. both of Milwaukee, Wis.
Before SPARKS and MAJOR, Circuit Judges, and LINDLEY, District Judge.
Appellants and others were tried on a three-count indictment, the first two counts of which were predicated upon section 338, title 18, U.S.C.A., and the third count upon section 88 of the same title. The first count, after setting forth the scheme and artifice to defraud, alleges the defendants "did place and cause to be placed in the Post Office of the United States, at Milwaukee, Wisconsin, aforesaid, to be sent and delivered by the Post Office Establishment of the United States, according to the direction and address thereon, a letter enclosed in a postpaid envelope addressed to the First National Bank, at Ripon, Wisconsin, from the Marshall & Ilsley Bank of Milwaukee, Wisconsin, said letter being of the following tenor, to wit." Then follows a copy of the letter together with other exhibits concerned with the collection in question.
The second count differs from the first only in the description of the letter which it is charged the defendants mailed or caused to be mailed. The letter here described is one from the First National Bank of Ripon, Wis., to the Marshall & Ilsley Bank of Milwaukee, Wis., which it is alleged was placed in the post office at Ripon, Wis.
The third count in apt language charges appellants with a conspiracy to violate section 338, title 18, U.S.C.A., and charges as overt acts, in addition to the acts of mailing described in counts 1 and 2, nine other and distinct acts. Appellant Mackett was convicted on each of the three counts while appellant Hanecy was convicted upon the second and third counts and found "not guilty" as to count 1. Although appellants have prosecuted separate appeals, they were tried together and both appeals will be disposed of in one opinion.
Numerous assignment of errors are relied upon for reversal consisting chiefly of errors by the court in its refusal to direct a verdict, errors in the giving and refusal of instructions, insufficient evidence to prove appellants used, or caused to be used, the United States mail in the transmission of the letter set forth in the indictment, and the refusal of the trial court to permit the jury to be polled.
The facts briefly are: A man by the name of John M. Gray, known by appellants prior to the time of the transaction in question as Cox, and other persons associated with him, were engaged in a scheme to defraud persons by representing they were qualified to treat various diseases of the eye, and in doing so prescribed and sold "radium water" and "radium belts." The whole scheme, of course, was fraudulent, and they succeeded in extracting fabulous sums of money from their victims in all parts of the country. There is no question from the record but what the scheme charged was proven beyond any doubt. It is earnestly insisted, however, by appellants that there was not sufficient evidence to connect them with the scheme to defraud, and that they were the victims of circumstances or, at any rate, whatever acts were committed by them were without knowledge of the scheme to defraud as the same was being operated by Gray and his associates. Because of the conclusion we have reached there is no occasion to go into a detailed discussion concerning this phase of the case. It is sufficient to state that after a careful review of the record we are convinced the trial court, except for the reason next discussed, was entirely justified in submitting the case to the jury.
The most serious error complained of is one which attacks the sufficiency of the evidence with reference to the use of the United States mail in the execution of the scheme as charged in counts one and two. That the use of the mail is the gist or corpus of the crime is so well established as to require no citation of authority, and must, of course, the same as other essential elements, be proven beyond a reasonable doubt. Appellant Hanecy placed the Voelker check for $2,500, described in the first count of the indictment, with the Marshall & Ilsley Bank of Milwaukee, Wis., for collection, and by so doing the bank became his agent and he became responsible for any use of the mail which the bank employed in making collection. Spear v. United States (C.C.A.) 228 F. 485. Likewise, all others who were engaged in the conspiracy or who were partners of Hanecy in the joint enterprise, including appellant Mackett, were responsible for the use of the mail by the bank. United States v. Bender et al. (C.C.A.) 60 F.(2d) 56. The real question, however, is whether the use of the mail by the bank is established by this record. The only testimony bearing upon the same, to which our attention has been called or which we are able to locate in the record, was given by the witnesses Schmidt and Kuether, the former employed in the collection department of the Milwaukee bank, the latter as cashier of the Ripon bank.
Schmidt was permitted to testify, over objection, that the exhibits described in count 1 of the indictment were forwarded in the mail to the First National Bank of Ripon, Wis. This testimony was merely the conclusion of the witness. Any doubt concerning the same was dispelled by cross-examination, where he admitted he had no such knowledge and couldn't even say whether the exhibits were placed in an envelope. He also testified with reference to the exhibits described in count 2 that he received the money from the Ripon bank through the mail. The exhibit described in this count is a draft, not money. He afterwards admitted he did not receive the incoming mail from Ripon. The witness Kuether, over objection, gave like testimony with reference to the exhibits described in count one. Their testimony amounts to no more than an opinion upon an essential element of the case. There is not a scintilla of evidence that the exhibits described in either count were ever placed in envelopes, if so to whom the envelopes were addressed, that they were stamped or bore any mark of mailing, and if they were mailed, at what post office. While we are aware that such proof may be made by circumstantial evidence, yet the circumstances relied upon to prove a fact must be proved and not themselves presumed. United States v. Ross, 92 U.S. 281, 23 L. Ed. 707.
In Brady v. United States (C.C.A.) 24 F.(2d) 399, the sufficiency of the evidence on the element of mailing is discussed at length. On page 403 is set forth the testimony relied upon which makes a stronger case for the Government than we here find. The court, among other things, said: ...
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