McLendon v. United States

• Decision Date: 19 July 1926
• Docket Number: No. 4729.,4729.
• Citation: 14 F.2d 12
• Parties: McLENDON v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

14 F.2d 12 (1926)

McLENDON v. UNITED STATES.^*

No. 4729.

Circuit Court of Appeals, Fifth Circuit.

July 19, 1926.

J. M. Grimmett, of Shreveport, La., and David B. Puryear, of Memphis, Tenn., for plaintiff in error.

Philip H. Mecom, U. S. Atty., and J. Fair Hardin, Asst. U. S. Atty., both of Shreveport, La.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

The plaintiff in error, T. E. McLendon, was convicted of an offense denounced by section 215 of the Criminal Code (Comp. St. § 10385), which deals with the use of the mails to promote frauds. The indictment, which contains only one count, was filed February 27, 1925. By a pleading filed October 20, 1925, and called a motion to quash, the indictment was challenged on the following grounds: (1) That the order directing the drawing of the grand jury which found the indictment was not valid because it was made by the judge of the district when he was absent therefrom; (2) that it was bad for duplicity and repugnancy in that it charged both that the accused devised a scheme and artifice to defraud one V. G. Simmons, and also a scheme for obtaining money from said V. G. Simmons by means of false pretenses, representations, and promises; and (3) that it failed to specify the manner in which the accused caused to be delivered by the post office establishment of the United States the circular or document mentioned and set out.

On the hearing of the motion, it was disclosed that the order for drawing the grand jury was signed "in chambers at New Orleans, La.," at a time when the judge was acting under a designation, made by the senior Circuit Judge, to hold the District Court for the Eastern District of Louisiana. The accused offered no explanation or excuse as to his failure to object to the indictment on the first-mentioned ground until nearly eight months after it was returned. Objection to an indictment on such a ground cannot properly prevail unless it is made by the accused promptly after he first has an opportunity to make it. Agnew v. United States, 165 U. S. 36, 17 S. Ct. 235, 41 L. Ed. 624; Powe v. United States (C. C. A.) 2 F.(2d) 975. Even if the indictment had been subject to attack because the order for drawing the grand jury which found it was made by the judge while absent from his own district, but at a place where he was engaged in performing the duties of his office (Apgar v. United States, 255 F. 16, 166 C. C. A. 344; Wheeler v. Taft C. C. A. 261 F. 978), the objection to it on that ground was properly overruled because of the absence of any explanation or excuse for the long delay in making it, and of the absence of any showing that the accused was prejudiced or injured by the making of the order for the drawing of the grand jury at the place where it was made. Moffatt v. United States, 232 F. 522, 146 C. C. A. 480.

The second above-mentioned ground of objection was aimed at the part of the indictment which alleged the accused's scheme to defraud. The allegations in that regard were to the following effect: The accused, of Germantown, Shelby county, Tenn., for the purpose of swindling, cheating, and defrauding V. G. Simmons, a resident of Caddo parish, La., devised a scheme, the substance of which was that, by falsely representing to said Simmons that he (the accused) had for sale dogs trained and skilled in hunting birds, and which were pedigreed and validly registered in the Field Dog Stud Book, which was maintained at Chicago, Ill., for the registry of skilled and trained hunting dogs which by ancestry and breeding are entitled to such registry, that stud book being recognized as a standard authority as to the ancestry and pedigree of hunting dogs, he (the accused) would sell to said Simmons bird dogs which, to the knowledge of the accused, were not trained and skilled in hunting birds and were not validly registered in said Field Dog Stud Book, "which said false and fraudulent representations, pretenses, claims, and promises would be by the said defendant made for the purpose of selling said dogs to said V. G. Simmons and securing money from the said V. G. Simmons and defrauding him, and for the purpose of inducing the said V. G. Simmons to pay sums of money to the said defendant; and that the said defendant would make said false, dishonest, and fraudulent representations, pretenses, claims, and promises in letters, circulars, and printed matter to be sent through the United States mails from the vicinity of Memphis, Tenn., and delivered to the said V. G. Simmons through the United States post office at Shreveport, Caddo parish, La., within the jurisdiction of this honorable court."

We think that the above-mentioned allegations show that, within the meaning of section 215 of the Criminal Code, the accused devised a "scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations or promises." A single scheme to defraud, or for obtaining money or property by false or fraudulent pretenses or representations, may be such that the complete execution of it would involve the commission of more than one criminal offense. The language of section 215 of the Criminal Code does not indicate that the lawmakers intended to enable one who uses the mails in furtherance of a scheme to defraud to obtain immunity for so doing by making the commission of a plurality of crimes a part or feature of his scheme. We are not of opinion that an indictment for an offense denounced by that statute is subject to objection on the ground that the alleged scheme, for the purpose of executing which an alleged use of the mails was made, was such that the execution of it would or might involve the commission by the accused of more than one criminal offense. Even if the indictment would have been subject to objection if it had shown the use of the mails for the purpose of executing several alleged fraudulent schemes, it is not subject to objection on that ground, because its allegations do not show that the accused devised more than one scheme to defraud. The court did not err in ruling that the indictment was not subject to objection on the ground now under consideration.

The above-mentioned third ground of objection to the indictment suggests that it was fatally defective...