McNear v. United States, 621.

• Decision Date: 27 July 1932
• Docket Number: No. 621.,621.
• Citation: 60 F.2d 861
• Parties: McNEAR v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

60 F.2d 861 (1932)

McNEAR v. UNITED STATES.

No. 621.

Circuit Court of Appeals, Tenth Circuit.

July 27, 1932.

Walter W. Calvin, of Kansas City, Mo. (Charles S. Walden, of Kansas City, Mo., on the brief), for appellant.

L. E. Wyman, Asst. U. S. Atty., of Topeka, Kan.

Before LEWIS, COTTERAL, and PHILLIPS, Circuit Judges.

COTTERAL, Circuit Judge.

This appeal is from convictions under two indictments which charge T. W. McNear, appellant here, with violations of section 338, title 18, U. S. Code (18 USCA § 338) (section 215, Criminal Code). The appellant complains of error in overruling demurrers to the indictments, admitting evidence, and denying motions for directed verdicts.

The indictment numbered 721 charges that in the early fall of 1925, the defendant devised a scheme to defraud Duke Coulter and his wife, by representing he would sell and deliver to Coulter title to twenty acres of land in Hidalgo county, Tex., for $7,080, and by contract he obtained as the consideration therefor their note in that sum and a mortgage securing it on certain land in Greenwood county, Kan., converted the proceeds thereof to his own use, failed and refused to deliver such title, and intended never to deliver anything of value for the note and mortgage, but to defraud them out of said money, and for the purpose of executing the scheme caused to be delivered to Duke Coulter, at Eureka, Kan., a letter dated March 17, 1926, as follows: "The possible damage of frost is over now in the Valley, and I will see that your trees are planted without any further delay. Had hoped to be in Eureka before this, but have been tied up in Valley business. However, I assure you your interests will be taken care of."

The indictment numbered 723 charges a like scheme was devised by defendant on or about December 3, 1925, to defraud William T. Groves out of $7,000, to whom the defendant contracted to sell and deliver the title to twenty acres of land in the same county, for a consideration of notes and securities in that sum, the defendant converted them to his own use, and failed and refused to deliver such title, with the intention never to deliver anything of value under the contract, and for the purpose of executing the scheme, caused to be delivered through the mail to Gordon A. Badger, at Eureka, Kan., a letter dated September 8, 1926, as follows:

"In answer to your wire, will state I heard from Frank Gregory Saturday evening. He did not mention if Coulters land was sold, but stated he had shown young Coulter a more desirable piece closer in, which was satisfactory to him. If this is the case, can see no reason why it is not satisfactory to Coulters. Please advise as soon as Coulters have heard from their son.

"Regarding Dr. Grove's land which is not due Dr. according to contract at this time. Wish to state Gregory stated in his wire that he had protected the same for me.

"As soon as I hear from you to the effect that Coulters agree to the switch, I will make arrangement for the immediate delivery of title papers. I trust this will be satisfactory, as any other settlement, would prove embarrassing if not almost impossible at this time."

The demurrers to the indictments were not well founded. They were not open to the objection asserted, that the offenses were not charged with sufficient particularity. The two elements of the offenses, consisting of schemes to defraud and the use of the mails for the purpose of executing them, were set out with such clearness as to enable the defendant to prepare for trial and plead former jeopardy in a later prosecution. The demurrers were properly overruled. 6 Ency. U. S. Sup. Ct. Rep. 974; Havener v. United States (C. C. A.) 49 F.(2d) 196; Butler v. United States (C. C. A.) 53 F.(2d) 800.

We pass the assignments relative to the admission of evidence, as our views on the motions for directed verdicts suffice for a disposition of the appeal favorably to appellant. The motions were based on the insufficiency of the evidence, and it is necessary briefly to review it.

Duke Coulter and his wife resided at Eureka, Kan. In September, 1925, they joined an excursion party to Texas, promoted by the defendant, and they met him en route. Near Edinburg, he showed them a tract of twenty acres, which he said he was selling for the Stewart receivership. He recommended the land for fruit growing. On September 23, 1925, while on their return trip, they executed a written contract with him to purchase the land for a consideration of their two notes for $250 and $3,250, payable later, when he was to deliver a deed and abstract.

On October 5, 1925, before the first note became due, he called at their home and they entered into a new contract whereby they gave him a note for $7,080 and a second mortgage securing it on land they owned in Kansas, the consideration for which was the land, the planting of seventeen acres thereof in fruit, the surrender of the prior notes, and a commission on the sale. He sold the note to C. B. Cox forty days after its date and the Coulters paid it. Mrs. Coulter obtained from the mail box at Eureka, Kan., the letter exhibited in the first indictment, two days after its date. She testified the letter bore defendant's signature.

Meantime, she wrote the defendant to furnish the deed or return their money. On August 11, 1926, McNear wired his brother-in-law, Frank Gregory, at McAllen, Tex., to procure the title to the property from R. A. Rowland. The Coulters visited the land, built a home on it, and cleared some of it. No fruit was even ever planted there. They left, on discovering the land had been sold to another party. After their return, they went with their attorney to Kansas City to get a meeting with the defendant, but failed. The defendant has never delivered a deed for the Texas land. The Coulters lost $7,080 in the transaction.

R. A. Rowland was trustee for the creditors of the Stewart Farm Loan Company, which owned the land. In 1925 and 1926 he had charge of their sales. The defendant had no title to any of the lands or authority to sell them.

William T. Groves was a physician at Eureka, Kan. The defendant...