Mitchell v. United States

• Decision Date: 06 May 1912
• Docket Number: 2,040.
• Citation: 196 F. 874
• Parties: MITCHELL v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

196 F. 874

MITCHELL v. UNITED STATES.

No. 2,040.

United States Court of Appeals, Ninth Circuit.

May 6, 1912

John T Mulligan, Francis D. Adams, John C. Kleber, and Alex M Winston, all of Spokane, Wash., for plaintiff in error.

Oscar Cain, U.S. Atty., and E. C. Macdonald, Asst. U.S. Atty.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.

GILBERT Circuit Judge.

The plaintiff in error was indicted and convicted for misuse of the mails of the United States under section 5480 of the Revised Statutes as amended by the Act of March 2, 1889, c 393, 25 Stat. 873 (U.S. Comp. St. 1901, p. 3696). The indictment charged that he devised a scheme and artifice to defraud by means of circulars, letters, and reports and advertisements to be sent by and through the mails representing that he would cause to be incorporated and organized a corporation to be controlled by him for the purpose of buying, selling, and operating mines, etc., and that the said corporation was the selling agent of stock of eight mining companies named in the indictment, and that he had knowledge of the actual and prospective value of said mining properties, and that they were of great value, and that the proceeds of the sale of all stock thereof were to be used to develop and equip said properties, and that said companies would pay dividends, whereas such representations were false, and it was his intention to convert all or a large part of the proceeds of the sale of said stock to his own use, and that said scheme and artifice to defraud was to be effected by opening a correspondence and communication by means of the post office of the United States. The plaintiff in error was sentenced to one year's imprisonment at McNeil's Island with hard labor.

Error is assigned to the sentence, in that, first, imprisonment in the penitentiary was imposed, which it is contended is unauthorized except in cases where the sentence is for a longer time than one year; and, second, that the sentence was to 'hard labor,' whereas, by the statute, the penalty prescribed is imprisonment only. Section 5541 of the Revised Statutes (U.S. Comp. St. 1901, p. 3721) is cited as sustaining these assignments. In reply to this counsel for the defendant in error points to the fact that at the time when section 5541 was adopted, which was on March 3, 1865 the United States maintained no places of imprisonment, and that by Act March 3, 1891, c. 529, 26 Stat. 839 (U.S. Comp. St. 1901, p. 3725), provision was made for the purchase of sites and the erection of buildings thereon 'for the confinement of all persons convicted of any crime whose term of imprisonment is one year or more at hard labor,' and that under that act the penitentiary at McNeil's Island was erected, and he contends that the sentence which consigned the plaintiff in error to imprisonment there was in compliance with the law.

We do not think that the language of the act of March 3, 1891, is susceptible of that construction, or that it was intended thereby to amend section 5541. The language of the act, 'for the confinement of all persons convicted of crime whose term of imprisonment is one year or more at hard labor,' must be held to refer to sentences imposed on conviction of crimes for which punishment in the penitentiary at hard labor is prescribed by the statute. Said Mr. Justice Harlan (In re Mills, 135 U.S. 263, 10 Sup.Ct. 762, 34 L.Ed. 107):

'There are offenses against the United States for which the statute in terms prescribes punishment by imprisonment at hard labor. There are others the punishment of which is imprisonment simply. But in cases of the latter class the sentence of imprisonment-- if the imprisonment be for a longer period than one year (section 5541)-- may be executed in a state prison or penitentiary, the rules of which prescribe hard labor.'

The court in that case held that, where a statute of the United States prescribing a punishment by imprisonment does not require that the accused shall be confined in a penitentiary, a sentence of imprisonment cannot be executed by confinement in a penitentiary, unless the sentence is for a period longer than one year. The same was held in Re Bonner, 151 U.S. 242, 14 Sup.Ct. 323, 34 L.Ed. 149. In that case Mr. Justice Field, referring to imprisonment in the penitentiary, said:

'To such an imprisonment infamy is attached, and a taint of that character can be case only in the cases mentioned.'

The offense of which the plaintiff in error was convicted is punishable 'by a fine of not more than $500 or by imprisonment of not more than eighteen months, or by both.'

But the error in the judgment does not entitle the plaintiff in error to his discharge, as it might if the question were presented on a writ of habeas corpus. The case having come to this court on writ of error, this court, while reversing the judgment of the court below, may remand the cause to that court, with directions to enter the appropriate judgment. Murphy v. Massachusetts, 177 U.S. 155, 20 Sup.Ct. 639, 44 L.Ed. 711; Haynes v. United States, 101 F. 817, 42 C.C.A. 34; Whitworth v. United States, 114 F. 302, 52 C.C.A. 214.

Error is assigned to the following instruction to the jury:

'Under this section, three matters of fact must be charged in this indictment and established by the evidence at the trial: First, that the defendant devised a scheme or artifice to defraud; second, that such scheme or artifice to defraud

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