McClendon v. United States

• Decision Date: 18 January 1916
• Docket Number: 4448.
• Citation: 229 F. 523
• Parties: McCLENDON v. UNITED STATES. [a1]
• Court: U.S. Court of Appeals — Eighth Circuit

229 F. 523

McCLENDON v. UNITED STATES. ^[a1]

No. 4448.

United States Court of Appeals, Eighth Circuit.

January 18, 1916

Frans E. Lindquist, of Kansas City, Mo. (Martin J. Ostergard and Luther N. Dempsey, both of Kansas City, Mo., on the brief) for plaintiff in error.

Vance J. Higgs, Asst. U.S. Atty., of St. Louis, Mo. (Arthur L Oliver, U.S. Atty., of St. Louis, Mo., on the brief), for the United States.

Before ADAMS and CARLAND, Circuit Judges, and TRIEBER, District Judge.

TRIEBER District Judge.

The plaintiff in error, who will be referred to herein as the defendant, was indicted for violating section 215 of the Criminal Code (Comp. St. 1913, Sec. 10385). There were four counts in the indictment. Upon the trial the jury found her guilty on all four counts, and thereupon she was sentenced by the court to five years' imprisonment on each count; the terms of imprisonment to run concurrently.

A demurrer was filed to each count of the indictment, and having been overruled by the court, proper exceptions were saved and noted in the assignment of errors. The objections to the indictment are that the first, second, and third counts do not show whether the banks mentioned in the indictment, which the defendant is charged to have sought to defraud, were corporations or partnerships. Counsel relies upon decisions of the Supreme Court of the state of Missouri, which, in construing the criminal statutes of that state, hold that an indictment failing to state whether the party whose property is taken, or who is sought to be defrauded by a forgery, is a natural person or a corporation, is fatally defective. Neither in the brief nor in the oral argument did counsel for defendant refer us to any authorities to sustain the contention that an indictment in the courts of the United States must be construed in conformity with the decisions of the highest court of the state in which the offense is committed, in construing the states of that state. Nor do we know of any.

Aside from this, the first and second counts specifically charge that the corporations sought to be defrauded were corporations existing under the laws of the state of Missouri. The third count fails to show that the Bank of Clear Creek County, at Georgetown, Colo., was a corporation; but this is immaterial, as the omission could in no wise prejudice the defendant, and unless such is the case an indictment will not be quashed in view of the provisions of section 1025, Rev. Stat. We have so decided in Morris v. United States, 229 F. 516, . . . C.C.A. . . ., opinion filed this day.

It is also claimed that the first count, which charges the scheme to have been to send a forged check through the mail for collection, does not describe the forgery with the particularity required by the statutes of the state of Missouri in indictments for forgery. Counsel overlook the fact that this is not an indictment for forgery, nor even for fraud; but the gist of the offense is the mailing of the letters in execution or attempted execution of the scheme. It is true the particulars of the scheme must be described with certainty sufficient to show its existence and character, and fairly acquaint the accused with the particulars of the fraudulent scheme charged against her, but need not be pleaded with all the certainty as to time, place, and circumstances requisite in charging the gist of the offense, the mailing of the letter in execution or attempted execution of the scheme. Colburn v. United States, 223 F. 590, 139 C.C.A. 136, Judge Adams, who delivered the opinion of this court in that case, refers to the authorities, and it is unnecessary to repeat them here.

Another objection is that, in the first, second, and third counts, the pleader fails to allege to whom the envelopes sent through the mails were addressed, and relies on Durland v. United States, 161 U.S. 306, 16 Sup.Ct. 508, 40 L.Ed. 709. But that case is squarely in point against the contention; the court holding that the allegation that the name of the addressee is to the grand jury unknown is sufficient. And this is alleged in this indictment. The indictment reads, 'That letter was inclosed in an envelope, a further description of which said envelope is to the grand jury unknown,' and then sets out the letter contained in the missing envelope.

Nor is the fourth count defective for the reasons hereinbefore stated, because it charges the scheme was to defraud the estate of John Rohan. This count alleges that John Rohan was then deceased, and that his estate was then in the course of probation in the probate court of Johnson county, Mo. This clearly gave to the defendant all the information needed to prepare her defense, and states who was intended by her to be defrauded. A careful examination of the indictment satisfies us that it complies fully with the requirements of the statute, as construed in numerous cases...