Mitchell v. United States

• Decision Date: 27 December 1927
• Docket Number: No. 5117.,5117.
• Parties: MITCHELL et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

23 F.2d 260 (1927)

MITCHELL et al. v. UNITED STATES.^*

No. 5117.

Circuit Court of Appeals, Ninth Circuit.

December 27, 1927.

T. C. West, of San Francisco, Cal., for plaintiff in error Mitchell.

J. E. White, of San Francisco, Cal., for plaintiff in error Bruere.

Roy A. Bronson and E. D. Bronson, Jr., both of San Francisco, Cal., for plaintiff in error Whiting.

Samuel W. McNabb, U. S. Atty., and J. Edwin Simpson, Asst. U. S. Atty., both of Los Angeles, Cal., and Ames Peterson, Asst. U. S. Atty., of Fresno, Cal.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

RUDKIN, Circuit Judge.

This is a writ of error to review a judgment of conviction under section 215 of the Criminal Code (18 USCA § 338). The first count of the indictment charged that the defendants therein named devised a scheme and artifice to defraud and to obtain money and property by means of false and fraudulent pretenses, representations, and promises, and that a certain letter was placed in the United States post office for the purpose of executing such scheme and artifice. The scheme and artifice set forth in the first count is made a part of the next four counts by reference, and the mailing of a different letter for the purpose of executing the scheme and artifice is set forth in each of the succeeding counts. The sixth count charged a conspiracy to commit the offenses defined and set forth in the five preceding counts. Speaking generally, the scheme was that the plaintiffs in error and their associates would enter into contracts for the purchase of land, would form a corporation to be dominated and controlled by them, with capital stock divided into preferred and common shares, and that in the sale of such stock false and fraudulent representations and pretenses would be made as to the quantity of land owned, the title to the land, the capacity of the sawmill on the land, the quantity of timber on the land, the dividends that would be paid on the common and preferred stock, and the profits that would be made by the store on the mill property. It would likewise be falsely and fraudulently represented that the plaintiffs in error and their associates had invested heavily in the enterprise, and that the value of the assets of the corporation was three times greater than the amount of the capital stock to be sold. Upon the trial, the jury found the plaintiffs in error Mitchell and Whiting guilty on the first five counts, the plaintiff in error Bruere guilty on counts 1, 2, 3, and 5, and all of the plaintiffs in error not guilty on the conspiracy count, or count 6.

The record contained 106 assignments of error, but, notwithstanding this, the principal question discussed in the briefs is not covered by the assignments and was not called to the attention of the court below. That question is based upon the contention that an acquittal under the conspiracy count necessitates a reversal of the judgment as to the remaining counts. The basis for this contention is not entirely clear. The conspiracy charged in the sixth count is a substantive offense, distinct and different from the offenses charged in the first five counts, and required different evidence to sustain it. Under the first five counts it was only necessary to prove the scheme and artifice set forth and the actual use of the mails to execute it, while under the sixth count it was incumbent on the government to prove, not only a conspiracy to devise a scheme and artifice, but also a conspiracy to use the mail for the purpose of executing it. For this reason, the acquittal on the sixth count in no wise affects the conviction under the remaining counts. Farmer v. United States (C. C. A.) 223 F. 903-907; Schwartzberg v. United States (C. C. A.) 241 F. 348; Morris v. United States (C. C. A.) 7 F.(2d) 785. Hart v. United States (C. C. A.) 240 F. 911, does not lay down a contrary rule. In that case a great deal of evidence was admitted under the conspiracy charge which would not have been admissible under the other charges contained in the indictment, and, the jury having acquitted the defendants of the conspiracy but convicted them of some of the other charges, the court held that the record should be closely scanned to determine whether the evidence so admitted may not have been prejudicial to the defendants in the consideration of the charges of which they were convicted. The judgment in that case was reversed on other grounds. An examination of the record in this case fails to show that any testimony was admitted during the progress of the trial that would not have been admissible against one or another of the defendants had no conspiracy been charged, and, if the testimony was admissible as against any of the parties, it could not be rejected even though inadmissible as against others. The utmost rights such other parties would have would be to request the court to limit the consideration of the testimony to the...