Milby v. United States

• Decision Date: 02 July 1901
• Docket Number: 929.
• Citation: 109 F. 638
• Parties: MILBY v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

109 F. 638

MILBY v. UNITED STATES.

No. 929.

United States Court of Appeals, Sixth Circuit.

July 2, 1901

The indictment in this case is based upon section 5480 of the Revised Statutes of the United States, as amended by the act of March 2, 1889(25 Stat. 873), and embraces three counts.A demurrer having been sustained as to the third count, and overruled as to the first and second counts, the case was submitted to the jury upon the first and second counts, and the trial resulted in a verdict of acquittal on the second count, and conviction on the first count.A motion in arrest of judgment was overruled, and exception duly taken.The defendant was thereupon regularly sentenced to a term of one year and one day in the penitentiary, and the case comes here on writ of error to revise the judgment.The ruling of the court in denying the motion in arrest of judgment is assigned for error, and the sufficiency of the indictment is the sole question presented here for consideration.Section 5480 of the Revised Statutes, as amended, so far as it materially affects the question now to be disposed of, reads as follows 'If any person having devised or intending to devise any scheme or artifice to defraud * * * to be effected by either opening or intending to open correspondence or communication with any person, whether resident within or outside of the United States, by means of the post-office establishment of the United States, or by inciting such other person or any person to open communication with the person so devising or intending, shall, in and for executing such scheme or artifice or attempting so to do, place or cause to be placed any letter * * * in any post office * * * of the United States * * * or shall take or receive any such therefrom such person so misusing the post-office establishment shall upon conviction, be punishable,' etc.

The first count of the indictment, being the only one with which we are now concerned, may be here given, and is as follows:

'The grand jurors of the United States of America, impaneled and sworn, and charged to inquire in and for the district of Kentucky, on their oaths present: That on the 21st day of August, 1898, J. R. Milby, who was then and there postmaster at Milby, Kentucky, within the district of Kentucky, and within the jurisdiction of this court, did then and there unlawfully, feloniously, and fraudulently devise a scheme and artifice to defraud the postmaster at Albany, Oregon,-- the name of which postmaster was then and there T. J. Stites,-- out of the sum of one dollar, and divers other sums of money, the amount of which is to the grand jury aforesaid unknown, to be effected, and which scheme and artifice and then and there by said J. R. Milby intended to be effected, by opening correspondence and communication with the said postmaster at Albany, Oregon, by means of the post-office establishment of the United States, and by inciting the said postmaster at Albany, Oregon, to open correspondence and communication by means of the post-office establishment of the United States with him, the said J. R. Milby,-- which said scheme and artifice was then and there as follows: That the said J. R. Milby, for the purpose and with the intent of defrauding the said postmaster at Albany, Oregon, out of the said sum of one dollar and said other sums of money, the amount of which is to the grand jurors aforesaid unknown, and for the purpose and with the intent aforesaid, did then and there write on a piece of paper about the size of a two-dollar silver certificate of the United States, and about the size of what is known as a two-dollar bill of the Confederate State of America, words and figures as follows:

'Keep still; the old saying is the still hog drinks the slop; if you will keep still, keep your eyes open, you can make dollars while others make cents; now this paper look like money on the other side, but it isn't; if you want sumthing better send me a one dollar bill, I will send you a 5 dollar bill, if you like it I will send you all you want at ten sents to the dollar, eny size from 1 to 20 dollar bills, that will pass all O.K. eny where; now, if you see fit to answer this letter send a to sent stamp and this bill in a plaine letter, then I will no what you want; be shure to send in plaine letter as I won't sine for Registered letter.Address all orders to

''M.J. Hawks, "Postoffice, Milby, "Green Co., Ky.'

'That he would then and there, for the intent and for the fraudulent purpose aforesaid write said writing upon a piece of paper, on the reverse side of which was then and there a fac simile or representation of the face of what is known as a two-dollar bill of the Confederate States of America, and on which reverse side of said paper there were then and there the following words and figures, to wit: "Richmond.Feby. 17th, 1864. Two.

''No. 2. 43938

"Two years after the ratification of a treaty of peace between the Confederate States and the United States of America.

"The Confederate States of America

"Will pay to the bearer on demand

"Two Dollars.

"B B "E.Coffin, N. Goodum, Two

"For Register.For Treasurer.'

'That he, the said J. R. Milby, would then and there, with the intent and for the fraudulent purpose aforesaid, place in said post office of Milby, for mailing, and send said writing and said fac simile or representation of said two-dollar bill of the Confederate States of America, by means of the post-office establishment of the United States, to the said postmaster at Albany, Oregon, with the intent and for the fraudulent purpose of obtaining from said postmaster at Albany, Oregon, the said sum of one dollar, and said other sums of money, the amount of which is to the grand jurors aforesaid unknown, and with the intent and for the fraudulent purpose of then and there inciting the said postmaster at Albany, Oregon, to open correspondence and communication by means of the post-office establishment of the United States with him, the said J. R. Milby.And the grand jurors aforesaid, upon their oaths aforesaid, do further present that the said J. R. Milby, having devised the scheme and artifice with the intent and for the fraudulent purpose aforesaid, did in and for executing said scheme and artifice, and attempting to do so by means of the post-office establishment of the United States, and with the intent unlawfully, fraudulently, feloniously to obtain and retain said sum of one dollar, and said other sums of money, the amount of which is to the grand jurors aforesaid unknown, that he might receive from said postmaster at Albany, Oregon, in response thereto and by means thereof, and with the intent unlawfully, fraudulently, and feloniously to incite the said postmaster at Albany, Oregon, to open correspondence and communication with him, the said J. R. Milby, by means of the post-office establishment of the United States, on said scheme and artifice, did write, and unlawfully, feloniously, knowingly, and wrongfully place and cause to be placed in said post office of Milby, Kentucky, for mailing, to be sent by means of the post-office establishment of the United States, the aforesaid writing and the said fac simile or representation of said two-dollar bill of the Confederate States of America, all of which was then and there inclosed and sealed in an envelope, on which was then and there a two-cent postage stamp, and which envelope was then and there addressed as follows:

"Postmaster,

"Albany,

"Oregon.'

'Against the peace and dignity of the United States, and contrary to the form of the statute in such case made and provided.'

W. M. Smith, for plaintiff in error.

Before LURTON and SEVERENS, Circuit Judges, and CLARK, District Judge.

CLARKDistrict Judge, after making the foregoing statement, .

The contention on behalf of plaintiff in error is that the first count in the indictment does not state the facts and particulars of a scheme to defraud, such as would constitute an offense under the statute.It is obvious that, unless a very general description of the offense in the language of the statute is permissible, this objection is well taken, provided the letter itself, which is set out in the indictment, does not disclose the necessary facts and particulars of a scheme to defraud, against which the statute is directed.In Stokes v. U.S.157 U.S. 187, 15 Sup.Ct. 617, 39 L.Ed. 667, the count had under consideration an indictment for a conspiracy to commit the offense described in section 5480, and in reference to the facts necessary to be charged in such indictment Mr. Justice Brown, speaking for the court, said:

'We agree with the defendant that 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

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