Marshall v. United States

• Decision Date: 18 April 1912
• Docket Number: 144.
• Parties: MARSHALL v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

197 F. 511

MARSHALL v. UNITED STATES.

No. 144.

United States Court of Appeals, Second Circuit.

April 18, 1912

On Rehearing, May 13, 1912.

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 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 indictment. It is impossible to say how much of this evidence may have prejudiced the jury.

The court charged that the testimony should only be considered in case the jury entertained a doubt as to whether the defendant intended to violate the statute.

'In that event' (said the court) 'you may have recourse to this alleged similar transaction, with a view of satisfying your minds that this plan and device was culpable, and comes within the purview of the statute.'

In addition to the Bankers' Society, the Government offered to prove two other fraudulent schemes, but the court, evidently thinking that sufficient latitude had been given, excluded the testimony.

The testimony received was to the effect that a transaction, identical in all material respects, had been carried on synchronously with the transaction for which the defendant was indicted. The Bankers' transaction could not, in our opinion, be used legitimately to establish intent to defraud in the Standard transaction, the two schemes being concededly the same. It did not tend to prove the guilty intent of the defendant as to the scheme in controversy to show that he had operated it before. We are not persuaded that the rule enunciated in Colt v. United States, 190 F. 305, 111 C.C.A. 205,

should be applied to the facts in the case at bar.

Two letters signed, respectively, H. W. Williams and W. Williams addressed to the defendant, were received in evidence over defendant's objection and exception and were marked Exhibits 180 and 182. Williams was Secretary and Treasurer of the Standard Society, and was sworn as a witness for the defendant, and on...