Miller v. United States

• Decision Date: 11 November 1904
• Docket Number: 1,997.
• Citation: 133 F. 337
• Parties: MILLER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

133 F. 337

MILLER et al. v. UNITED STATES.

No. 1,997.

United States Court of Appeals, Eighth Circuit.

November 11, 1904

Syllabus by the Court

The amendment of section 5480, Rev. St., by the act of March 2 1889, 25 Stat. 873, c. 393, Sec. 1 (u.S.Comp.St. 1901, p 3696), did not detract from the effect of that section, nor limit its scope to the schemes, artifices, or devices prescribed in the amendment, or to those of like character but it added to the offenses denounced by the original act those specified in the act of 1889.

An indictment must allege the facts which constitute the offense charged so clearly that the court can determine upon inspection whether or not those facts will sustain a conviction under the law, so distinctly as to advise the accused of the charge had has to meet, so fully as to give him a fair opportunity to prepare his defense, and so particularly as to enable him to avail himself of a conviction or acquittal in defense of a second prosecution for the same offense.

Facts which clearly show a conspiracy to devise a scheme or artifice to defraud, an intention to defraud, an intention to use the post-office establishment as a part of the scheme for the purpose of executing it, the use of that establishment for that purpose, and the scheme or artifice itself, are essential to a valid indictment under section 5440, Rev. St to commit the offense described by section 5480 (U.S.Comp.St. 1901, pp. 3676, 3696), and must be alleged in the pleading.

The intentional use of a legal contract or transaction for the purpose of defrauding another may constitute a scheme or artifice to defraud, under section 5480, Rev.St. (U.S.Comp.St. 1901, p. 3696), although the use of the same contract or transaction with an honest intent for a proper purpose would be lawful and innocent.

An indictment which charges the defendants with a scheme to use the post-office establishment of the United States, and a contract between the board of directors of a mutual insurance corporation and one of the defendants to procure from its members large sums of money, to appropriate these sums to the defendants, and thereby to render the corporation insolvent, fairly discloses a scheme to defraud the members of the corporation, under section 5480, Rev.St. (U.S.Comp.St. 1901, p. 3696), by inducing them, by means of communications through the post-office establishment, to pay their money into the possession and control of the defendants, to the end that they may defraud them of it.

An allegation that a part of a scheme to defraud, which the defendants conspired to devise, was that the scheme 'was to be effected' by opening correspondence or communication by means of the post-office establishment with unknown persons, is a sufficient averment of an intention by the accused to use the mails to execute their scheme.

An indictment which charges the accused with conspiring to devise a scheme to defraud persons unknown to the grand jury is not vulnerable because the names of these persons are not stated in the indictment, if it contains a true averment that these persons are not known to the grand jury.

It is not a valid objection to an indictment which charges the accused with conspiring to devise a scheme to defraud persons unknown to the grand jury that it shows on its face that the defendants were also guilty of the offense-- with which they are not charged in the indictment-- of conspiring to defraud persons known to the grand jury.

The statements in an attorney's argument and presentation of one case to a court or tribunal are not competent evidence against his client in another case between him and another party which involves other issues.

Facts which show that one of several alleged conspirators had conceived a fraudulent intent before he entered into the conspiracy do not constitute competent evidence that his alleged co-conspirators, who had no knowledge of those facts, had such an intent before or at the time the conspiracy was formed.

C. A. Severance, Charles E. Wolfe, and Frank B. Kellogg, for plaintiffs in error.

Edward Engerud and Patrick H. Rourke, for the United States.

Before SANBORN, VAN DEVANTER, and HOOK, Circuit Judges.

SANBORN Circuit Judge.

Percy W. Miller, Arthur M. Gilder, and Allen G. Randall, the plaintiffs in error, who will be called the defendants in this opinion, were convicted under section 5440 of the Revised Statutes of conspiring to commit the offense of devising a scheme to use the post-office establishment of the United States to defraud, which is denounced by section 5480 of the Revised Statutes (U.S. Comp. St. 1901, pp. 3676, 3696). The indictment upon which they were tried contained four counts. The first charged them with the offense of conspiracy, described in section 5440, and the other three with the offense of devising a scheme to defraud, specified in section 5480. At the close of the trial the jury found them guilty under the first count, and acquitted them of the offense charged in the other three. This writ of error therefore challenges the trial under the first count only, and counsel for the defendants allege that they were wrongfully convicted, because this count of the indictment charged no offense, and because in the proceedings at the trial the court made numerous erroneous rulings.

The sufficiency of the indictment will first be considered. The general nature of the offense which the evidence on behalf of the government tended to charge upon the defendants at the trial was a conspiracy to devise a scheme to use the post-office establishment of the United States to defraud persons to the grand jury unknown who were or became members of the State Mutual Insurance Company of North Dakota, by inducing these persons to pay moneys to that corporation in the belief that these moneys were necessary for, and would be applied to, the payment of the legitimate expenses and genuine losses of the company, when in fact they were not requisite to pay these expenses or losses, and when they should be paid the defendants would have obtained control of the funds and business of the corporation, would convert this money to their own use, and would make the corporation insolvent and leave its losses unpaid, by means of a certain contract which they would then have obtained from the corporation to pay certain commissions to the defendant Gilder. The indictment is attacked on the grounds (1) that a scheme to defraud, of the character disclosed, is not violative of section 5480, since the amendment of that section by the act of March 2, 1889 (25 Stat. 873, c. 393, Sec. 1); (2) That the indictment does not fairly disclose the scheme or artifice to defraud presented by the evidence for the government; (3) that it does not state the way in which the mails were to be used to effect the fraud; (4) that it fails to show that the use of the mails was a part of the scheme or artifice; (5) that it shows that the conversion of the money was the only unlawful act charged; that this conversion was not aided by the use of the post-office establishment; that it was effected after the scheme or artifice had been executed; and that the conversion was no part of that scheme; (6) that the indictment does not charge the defendants with intending to defraud a certain party whose name was known to the grand jury, and whom the indictment shows the defendants did intend to despoil; and (7) that the indictment does not allege that the defendants had any intention to defraud any one.

Section 5480 reads in this way:

'If any person having devised or intending to devise any scheme or artifice to defraud, or (to sell, dispose of, loan, exchange, alter, give away, or distribute, supply, or furnish, or procure for unlawful use any counterfeit or spurious coin, bank notes, paper money, or any obligation or security of the United States or of any state, territory, municipality, company, corporation, or person, or anything represented to be or intimated or held out to be such counterfeit or spurious articles, or any scheme or artifice to obtain money by or through correspondence, or by what is commonly called the 'sawdust swindle' or counterfeit 'money fraud,' or by dealing or pretending to deal in what is commonly called 'green articles,' 'green coin,' 'bills,' 'paper goods,' spurious treasury notes,' 'United States goods,' 'green cigar,' or any other names or terms intended to be understood as relating to such counterfeit or spurious articles, to) be effected by either opening or intending to open correspondence or communication with any person, whether resident within or outside the United States, by means of the postoffice 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, packet, writing, circular, pamphlet, or advertisement in any postoffice, branch postoffice, or street or hotel letter box of the United States, to be sent or delivered by the said postoffice establishment, or shall take or receive any such therefrom, such person so misusing the postoffice establishment shall, upon conviction, be punishable by a fine of not more than five hundred dollars and by imprisonment for not more than eighteen months, or by both such punishments, at the discretion of the court. The indictment, information, or complaint may severally charge offenses to the number of three when committed within the same six calendar months; but the court thereupon shall give a single sentence, and shall proportion the punishment especially to the degree in which the abuse of the postoffice establishment enters as an instrument into

...