Marshall v. United States, 144.

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Citation: 197 F. 511
• Docket Number: 144.
• Parties: MARSHALL v. UNITED STATES.
• Decision Date: 18 April 1912

197 F. 511

MARSHALL
v.
UNITED STATES.

No. 144.

United States Court of Appeals, Second Circuit.

April 18, 1912

On Rehearing, May 13, 1912. [197 F. 512]

John J. Lordan and John M. Coleman, for plaintiff in error.

Henry A. Wise, U.S. Atty. (Daniel Day Walton, Jr., Asst. U.S. Atty., and G. H. Dorr, of counsel), for the United States.

Before LACOMBE, COXE, and WARD, Circuit Judges.

COXE, Circuit Judge.

Two indictments were found against the defendant under section 5480 of the Revised Statutes, as amended by the Act of March 2, 1889, c. 393, 25 Stat. 873 (U.S. Comp. St. 1901, p. 3696), for having devised a scheme to defraud and using the United States mail in furtherance thereof.

These indictments were consolidated under section 1024 of the Revised Statutes (U.S. Comp. St. 1901, p. 720). The defendant was found guilty under the second and third counts of each indictment. The second count of the first indictment charges the defendant with having devised a scheme to defraud one Wursthorne and others by inducing them to join the Standard Protective Society, alleged to be a fraudulent organization, and by mailing to said Wursthorne on May 15, 1909, a postal card intended to carry out said scheme. The third count is identical with the second, except that it charges the mailing of a different letter to said Wursthorne on June 21, 1909.

The second and third counts of the second indictment describe the same scheme in somewhat different language, and allege the mailing of two letters upon March 11 and March 19, 1909, respectively, in furtherance of the said scheme.

There was no error in consolidating the indictments. Booth v. United States, 154 F. 836, 83 C.C.A. 552.

There was no error in charging the jury that 'by the term reasonable doubt is meant not a capricious doubt, but a substantial doubt-- a doubt that you can give a reason for if the court called on you to give one. ' The definition of 'reasonable doubt' as being a doubt for which a reason can be given is frequently adopted by trial judges. The criticism that the charge carried with it an implied threat that the jury might be called upon to explain to the court the reasons which induced [197 F. 513] them to acquit if they found a verdict of not guilty, is hypercritical.

We think that there was error in admitting testimony showing the defendant's relations to the Bankers' Protective Society. The indictments were not based upon any misdoing in connection with this society, and nothing therein notified the defendant that he was called upon to defend himself against charges of fraud based upon his management of the Bankers' Society. The brief of the U.S. attorney states that:

'The two schemes were identical in all respects, except that the Bankers' scheme was on a smaller scale. The financial history of the two societies disclosed precisely the same conduct by the defendant. In point of time, furthermore they were being operated simultaneously, and from the same office and through the same employes. * * * Every allegation in the indictments respecting the Standard Society could have been made with equal truth and appropriateness regarding the Bankers' Society.'

It is urged that the testimony was admissible upon the question o' intent; but it is difficult to perceive how the repetition of identical facts can have any legitimate bearing upon this question. It the evidence as to the Standard Society showed a fraudulent intent, the Government's case in that regard was established; nothing more was needed. If, on the other hand, it failed to show fraudulent intent, how was the omission supplied by duplicating the testimony under a different name? A lawful act does not become unlawful because it is repeated. If an act be shown to be illegal, it is enough. The prosecutor may safely res. on such proof; it does not add to its illegal character to show that it was repeated. If the contention of the Government be correct, the acts of the defendant in relation to the Bankers' Company constitute an offense under section 5480 and he had a right to rely upon the rule that he would not be called upon to answer accusations not found in the...