McLendon v. United States

• Decision Date: 05 November 1924
• Docket Number: No. 4063.,4063.
• Citation: 2 F.2d 660
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: McLENDON v. UNITED STATES.

2 F.2d 660 (1924)

McLENDON v. UNITED STATES.

No. 4063.

Circuit Court of Appeals, Sixth Circuit.

November 5, 1924.

D. B. Puryear, of Memphis, Tenn. (T. J. Walsh, of Memphis, Tenn., on the brief), for plaintiff in error.

W. H. Fisher, Asst. U. S. Atty., of Memphis, Tenn. (S. E. Murray, W. H. Fisher, and A. A. Hornsby, all of Memphis, Tenn., on the brief), for the United States.

Before DENISON, MACK, and DONAHUE, Circuit Judges.

DENISON, Circuit Judge.

McLendon was convicted of using the mails pursuant to a scheme to defraud. Penal Code, § 215 (Comp. St. § 10385). The indictment was in eight counts. The first one set out the general scheme and the mailing of one letter for the purpose of its execution. Each of the remaining counts stated the same general scheme and the mailing of another letter to another person in furtherance of it. One count was withdrawn from the jury; they found him not guilty on five counts, and guilty on counts 1 and 3; and he was sentenced to five years in the penitentiary under count 1, and three cumulative years under count 3.

McLendon was engaged in the breeding, buying, and selling of bird dogs. Like every other legitimate business, this gives the trader, if he is so inclined, opportunity to defraud one customer after another by misrepresenting the quality of his goods, or by the great variety of expedients occurring to an ingenious scoundrel; but it has never yet been thought that the "scheme to defraud" of section 215 of the Criminal Code could be found in the mere succession of diverse swindles, unrelated save as they had a common stage. It is not set out in the indictment or claimed in the proofs that McLendon's business was not, in substantial part, legitimate and satisfactory to his customers; and so, if the indictment is to be held good, we must find in it an allegation of some general fraudulent scheme dominantly characterizing some part of his business.

In this respect it is not easy to be sure what the indictment means to charge. The first paragraph, after the introductory allegation that the scheme was for the purpose of defrauding all persons who might "be included in the description of persons interested in the sale, purchase, or trading of blooded and registered bird dogs," alleges that McLendon pretended to have for sale blooded bird dogs entitled to registration in the usual records and particularly in the "Field Dog Stud Book," and — without negativing these pretenses — proceeds with some allegations which are not sufficiently intelligible to be helpful. It then, in the next paragraph, states the scheme more in detail, as appears from the portion copied in the margin.¹ We cannot find in this language any description of a scheme to defraud sufficiently clear and definite to justify a prosecution for felony, save as it refers to the general subject of pedigree. The right to registration alluded to was not separate, but, according to trade practice, was dependent upon ancestry. So we interpret the indictment as charging a scheme to defraud upon this subject — blood, pedigree, breeding — and no other. We do not overlook the quoted reference to "other facts, * * * such as age, color, size, breeding condition," etc. We do not take this reference as characterizing the scheme intended to be charged, but rather as incidental to, depending on, and in aggravation of the underlying plan. To regard these recitals as words of primary description would destroy the identity of the definite scheme already carefully set out, and leave it without boundary.

Nor do we fail to observe the later allegation that the scheme was "also by false and fraudulent pretenses and misrepresentation to acquire possession of dogs, and fraudulently, unlawfully, and feloniously convert the same to his own use, and thereby deprive the true owner thereof." Not only are these charges too vague to be the basis of any prosecution, but there is no connection set out in the indictment, or otherwise obvious, between such a plan and the main one charged. There is no bond of unity between the two. To avoid thinking the indictment bad for duplicity, this last-quoted allegation must be disregarded as surplusage.

The letter which constitutes the misuse of the mails must be a step in the attempted execution of the scheme charged in the indictment. It doubtless is not necessary that all, or even the main part, of the defendant's business should be of a fraudulent character, nor yet that the letter should be in any degree capable of aiding in the victim's deception (e. g., Shea v. U. S. C. C. A. 6 251 F. 440, 447, 448, 163 C. C. A. 458); yet if the only letter mailed related solely to a particular transaction, which was no part of that scheme to defraud charged in the indictment, and the letter could have no effect, direct or indirect, in furthering that scheme, even though that particular transaction may be dishonest in some other way, guilt of the crime charged is not made out.

Count 1 related to the Heddon transaction. McLendon advertised for sale two pointer dogs, with claims that they were good hunting dogs. Heddon saw the advertisement and sent to McLendon a questionnaire, to be filled out and returned by the latter, and McLendon did this, answering the several questions. The mailing of these answers by him constitutes the offense charged in this count. Excluding the matters clearly immaterial, and others which Heddon as a witness admitted were not material to him, there remained only the statements that the dog sent was a good "single finder" and would "back at sight." This was accompanied by McLendon's statement, which he also made with every sale mentioned in the indictment, that, if the dog was not satisfactory after five days' trial, he would take her back and refund the money. There was no statement having any relation to pedigree or breeding, and the price asked and paid was suitable for an unpedigreed ("cold-blooded") dog. Heddon was not satisfied. He testifies that he tried the dog once, the day after arrival; that she found some birds, but not enough; and that she would not retrieve. He sent her back, requesting the refund of the $75 he had paid, and said that, because the dog did not meet the specifications, he thought he should have also his express charges. He also said in the letter that, if McLendon had in the near future an "A-1 quail dog," he would like to try it. McLendon promptly sent him another dog, but without any representation as to quality, except that implied from Heddon's request. Heddon looked at the dog at the express office, refused to take it out, and the agent so informed McLendon, who, meantime, had sent Heddon his $75 check as a refund. Upon learning that the second dog was rejected without trial,² McLendon believed himself entitled to the express charges which he had paid on both dogs, stopped payment on his refund check, deducted those charges and refunded to Heddon the remainder — some $56.

This was the whole proof on this subject. Whether the jury might rightly have convicted McLendon of fraud in representing the first dog to be a good hunting dog, when he did not believe she was, we need not...