Merrill v. United States, 8461.
| Decision Date | 22 March 1938 |
| Docket Number | No. 8461.,8461. |
| Citation | 95 F.2d 669 |
| Parties | MERRILL et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Rockwood Brown and Horace S. Davis, both of Billings, Mont., and Henry D. Moyle, of Salt Lake City, Utah, for appellants.
John B. Tansil, U. S. Atty., and R. Lewis Brown, Asst. U. S. Atty., both of Butte, Mont.
Before GARRECHT, MATHEWS, and HANEY, Circuit Judges.
Appellants were indicted, tried, convicted, and sentenced for violating section 215 of the Criminal Code, 18 U.S.C.A. § 338. They appealed. We reversed the judgment of conviction, but, on appellee's petition, granted a rehearing. That has been had. The question is whether the evidence was sufficient to warrant submission of the case to the jury.
The indictment is in ten counts. Count 1 alleges that appellants devised a scheme to defraud and for obtaining money and property by means of false and fraudulent pretenses, representations, and promises. As described in count 1, this was a scheme to sell stock of Merrill Mortuaries, Inc., a corporation, hereafter called Mortuaries, and to obtain payment therefor, by making false and fraudulent pretenses, representations, and promises to the purchasers thereof. Count 1 further alleges that, having devised this scheme, appellants, for the purpose of executing it, did on April 25, 1932, knowingly cause to be delivered by mail, according to the direction thereon, a letter directed to W. A. Bestwick at Alberton, Montana, the contents of which are set out in count 1.
Except as to form and contents of letters, names and addresses of persons to whom they were delivered, and dates and places of delivery, the other counts are similar to count 1. All the indictment letters are alleged to have been delivered in Montana.
There was no direct proof of the fraudulent scheme described in the indictment. That is to say, there was no direct evidence that appellants schemed to sell Mortuaries stock by making false or fraudulent pretenses, representations, or promises to the purchasers thereof.1 There was, however, some evidence that appellants made some such sales by such means. The fact that they made such sales was a circumstance tending to prove that they had schemed to make them. There was no other proof of the fraudulent scheme.
There was no evidence that the scheme continued after the stock sales ceased. The latest stock sale shown by the evidence was made on September 3, 1931. The earliest of the indictment letters was written on April 18, 1932, and delivered on April 21, 1932. There being no evidence that the scheme then existed, it obviously cannot be said that the letters were delivered for the purpose of executing the scheme. Compare McNear v. United States, 10 Cir., 60 F.2d 861, 863; Little v. United States, 10 Cir., 73 F.2d 861, 867, 96 A.L.R. 889. Stewart v. United States, 8 Cir., 119 F. 89, 95.
The fact that Mortuaries was still in existence, was still carrying on its mortuary business, and was still dominated and controlled by appellants, does not prove or tend to prove that the fraudulent scheme2 described in the indictment existed after September 3, 1931.
One indictment letter was to Pat R. Gagner, manager of an establishment operated by Mortuaries, or a subsidiary thereof, at Butte, Montana. Accompanying it was a certificate for one share of Mortuaries stock which had been issued to John Skola in September, 1929, and had been repurchased by Mortuaries in April, 1932. The letter instructed Gagner that when some Mortuaries customer came to pay for a funeral service he (Gagner) should "sell" the Skola stock to such customer for $100, then take it back, credit the customer's account with $100, and return the stock to Mortuaries for cancellation, thus making it appear that Mortuaries had received the stock in part payment of a funeral bill, instead of having repurchased it, as in fact it had, from a dissatisfied stockholder.
Gagner did not carry out these instructions. Even if he had done so, the...
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