Mounday v. United States
| Decision Date | 09 July 1915 |
| Docket Number | 4294. |
| Citation | 225 F. 965 |
| Parties | MOUNDAY et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Rehearing Denied September 27, 1915.
Hiram C. Root, of Topeka, Kan., for plaintiffs in error.
Fred Robertson, U.S. Atty., of Topeka, Kan. (Francis M. Brady Asst. U.S. Atty., of Topeka, Kan., on the brief), for the United States.
Before SANBORN and CARLAND, Circuit Judges, and TRIEBER, District judge.
The defendants below were convicted of violating section 215 of the Penal Code. They complain that their conviction was erroneous for the following reasons:
First that the indictment did not state facts sufficient to constitute a public offense. The indictment contained ten counts. The language of the first count may be taken as illustrative of the point made against the indictment. After having alleged that the defendants unlawfully, knowingly fraudulently, designedly, and feloniously devised a scheme and artifice to defraud, the indictment proceeded to describe what the scheme was. It alleged that the defendants would enter into a 'pretended real estate business'; that they would 'pretend' that they had purchased and owned certain land; that they would 'pretend' and represent said land to be highly adapted to the cultivation of sugar beets; that they would 'pretend' that a line of railroad would be built; that they would 'pretend' that they would construct a sugar factory; that they would 'pretend' that they had placed commercial securities to the amount of $500,000 in the hands of a trustee. It is claimed that the indictment is faulty for the reason that it alleges that the defendants were only to 'pretend' to do something, and does not allege that they did anything. This view of the language of the indictment arises from a misconception of the crime with which the defendants were charged. The crime charged was the devising of a scheme or artifice to defraud, and the placing or causing to be placed a letter in the post office of the United States, addressed to some person, for the purpose of executing such scheme or artifice. In Gould v. United States, 209 F. 730, 126 C.C.A. 454, we said:
'While in the case at bar the use of the post office establishment in the execution of a scheme to defraud is the offense which the statute denounces, and while it is held that the scheme must be sufficiently set forth, so as to acquaint the defendant with the particulars thereof, still the scheme need not be set forth with that particularity which would be required if the scheme was the gist of the offense. Brooks v. United States, 146 F. 223 (76 C.C.A. 581); Lemon v. United States, 164 F. 953 (90 C.C.A. 617); Brown v.
United States, 143 F. 60 (74 C.C.A. 214); Hyde v. United States, 198 F. 610 (119 C.C.A. 493).'
If counsel had not devoted 12 pages of his brief in the elaboration of the point sought to be made, we should not have thought it deserved any consideration whatever. The whole scheme was a false pretense; that was the character of the scheme. It was not necessary that any false pretense should be actually made. The deposit of the letter in the mail to effectuate the scheme was the gist of the offense, and the letter might accomplish this purpose, without making a false pretense.
Another contention against the validity of the indictment is the fact that each count thereof charges that the scheme was to defraud a person named and various other persons to the grand jurors unknown. It is argued that as there were ten counts in the indictment, and in each count one person was named as the one to be defrauded, that the allegation in each count that the grand jurors did not know the other persons was false, as the names of the other persons appear in the other counts of the indictment, showing that the grand jurors did know who the other persons were. The indictment must be taken as a whole, and, so considered, it appears that all the persons that the grand jurors did know were named. The defendants intended to defraud all persons who should do business with them, that is, the public, and they did not know themselves, when they devised the scheme to defraud, the particular persons who would be defrauded. When it is considered that the indictment was only attacked by motion in arrest, it is difficult to discuss the question with proper restraint.
It is urged that the trial court erred in not sustaining the plea in abatement interposed by the defendants to the indictment based on the ground that it was procured by the wrongful use before the grand jury of testimony and evidence which was obtained by an illegal...
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