McConkey v. United States

• Decision Date: 19 July 1909
• Docket Number: 3,013.
• Parties: McCONKEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

171 F. 829

McCONKEY v. UNITED STATES.

No. 3,013.

United States Court of Appeals, Eighth Circuit.

July 19, 1909

Arnold L. Guesmer (Rome G. Brown and Charles S. Albert, on the brief), for plaintiff in error.

Charles C. Houpt, U.S. Atty., and E. S. Oakley, Asst. U.S. Atty.

Before SANBORN, Circuit Judge, and CARLAND and POLLOCK, District judges.

CARLAND District Judge.

McConkey was convicted in the trial court for having violated the provisions of section 5440, Rev. St. U.S. (U.S. Comp. St. 1901, p. 3676), in conspiring to commit the offense denounced by section 5480, Rev. St. U.S., as amended by Act March 2, 1889, c. 393, Sec. 1, 25 Stat. 873 (U.S. Comp. St. 1901, p. 3696). To reverse the judgement of conviction he has sued out a writ of error from this court, and assigns as the only ground for reversal that the indictment against him and others does not state facts sufficient to constitute a public offense against the laws of the United States. The points raised were saved in the trial court both by demurrer and motion in arrest.

We think most of the objections to the indictment arise by reason of failure on the part of counsel to appreciate the fact that McConkey was not indicted for violating the provisions of section 5480, and that it was not necessary, in order to convict him under section 5440, to show a completed offense under said section 5480. The language of the indictment, other than matters of form, is as follows:

'The grand jurors of the United States of America, within and for said district and division, in the name and by authority of the said United States of America, upon their oath present that heretofore, to wit, on or about the 1st day of September, A.D. 1907, and prior to all the days and dates hereinafter mentioned, James Mulhall, Felix Nathanson, Charles B. Gregg, and E. V. McConkey, whose true Christian name is to the grand jurors unknown, all late of the city of Minneapolis, in the county of Hennepin, in the state and district of Minnesota and Fourth division thereof, and within the jurisdiction of this court, did then and there unlawfully, wrongfully, feloniously, and knowingly conspire, combine, confederate, and agree together to commit the acts made an offense and crime against the United States by section 5480 of the Revised Statutes of the United States, and the acts amendatory thereof, that is to say: That the said persons and each of them did then and there conspire, combine, confederate, and agree together in devising and intending to devise a certain scheme and artifice to defraud divers persons to the grand jurors unknown, to be effected through and by means of the post office establishment of the United States, which said scheme and artifice to defraud was as follows, to wit: That the said James Mulhall, Felix Nathanson, Charles B. Gregg, and E. V. McConkey should associate themselves together as wholesale and retail dealers in certain merchandise and farm produce, under the firm name and style of the Nicollet Creamery Company, in the said city of Minneapolis, Minnesota, and that the said James Mulhall, Felix Nathanson, Charles B. Gregg, and E. V McConkey should induce said divers persons unknown as aforesaid to send to them, as the said Nicollet Creamery Company, shipments of merchandise and farm produce upon the representations made by them, the said James Mulhall, Felix Nathanson, Charles B. Gregg, and E. V. McConkey, as the said Nicollet Creamery Company, that they would purchase and pay for such merchandise and farm produce, and in case such merchandise and farm produce should be sent by said divers persons aforesaid, and received by them, the said James Mulhall, Felix Nathanson, Charles B. Gregg, and E. V McConkey, as the said Nicollet Creamery Company, not to pay them for such merchandise and farm produce, but to fraudulently convert the same to the use and benefit of them, the said James Mulhall, Felix Nathanson, Charles B. Gregg, and E. V. McConkey, and thereby defraud the divers persons aforesaid so sending such merchandise and farm produce out of the value of the same, which said scheme and artifice to defraud, so devised as aforesaid, was, as a part thereof, at the time of the devising thereof and afterwards, intended by the said James Mulhall, Felix Nathanson, Charles B. Gregg, and E. V. McConkey to be effected by opening correspondence and communication with those divers persons unknown as aforesaid through and by means of the post office establishment of the United States, and by inciting those persons unknown as aforesaid to open communication with them, the said Nicollet Creamery Company, through and by means of the post office establishment of the United States; and said James Mulhall, Felix Nathanson, Charles B. Gregg, and E. V. McConkey, as a part of the said conspiracy, and for the purpose of effecting the object of said conspiracy to defraud in the manner aforesaid, did, at said city of Minneapolis, Minnesota, on the 13th day of October, 1907, wrongfully, unlawfully, knowingly, and feloniously deposit and cause to be deposited in the post office of the United States, at the said city of Minneapolis, Minnesota, for mailing and delivery through and by means of the post office establishment of the United States, a certain circular letter or writing, which said letter or writing was then and there inclosed in a sealed envelope, postage paid thereon, and addressed to 'Mr. C. A. Albert, Banner, Ch. Fact, New Richmond, Wis.,' which said circular cannot be and is not fully set forth in this indictment by reason of its great length, but was a certain circular or price list entitled: 'Minneapolis Fruit and Produce Market. Official quotations of the Minneapolis Produce Exchange, Published Daily'-- and being of and for the date of Saturday, October 12, 1907.'

The indictment then proceeds to set forth other overt acts, consisting of the deposit of other circular letters and advertisements in the United States post office at Minneapolis, Minn., inviting the persons to whom said advertisements were addressed to send to the Nicollet Creamery Company butter, eggs, and live poultry, and promising in said advertisements to pay therefor the top market price on day of arrival.

In Stokes v. United States, 157 U.S. 187, 15 Sup.Ct. 617 39 L.Ed. 667, it is said that under section 5480, Rev. St. U.S., three matters of fact must be charged in the indictment and established by the evidence: (1) That the persons charged must have devised a scheme or artifice to defraud. (2) That they must have intended to effect this scheme by opening or intending to open...