Nichols v. United States

• Decision Date: 30 March 1931
• Docket Number: No. 6019.,6019.
• Citation: 48 F.2d 46
• Parties: NICHOLS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

48 F.2d 46 (1931)

NICHOLS et al. v. UNITED STATES.

No. 6019.

Circuit Court of Appeals, Fifth Circuit.

March 30, 1931.

Jno. W. Gaines, Jr., of Tampa, Fla., for appellants.

W. P. Hughes, U. S. Atty., of Jacksonville, Fla. (W. P. Hughes, U. S. Atty., and Louis S. Joel, Asst. U. S. Atty., both of Jacksonville, Fla., on the brief), for the United States.

Before FOSTER, Circuit Judge, and HUTCHESON and SIBLEY, District Judges.

SIBLEY, District Judge.

Under an indictment in five counts for using the mails to defraud, Claude Nichols and J. W. Nichols were convicted on all counts, J. B. Nichols on three of them, and Nell Sellers Smith on one. Upon their appeal the assignments of error relate to the sufficiency of the indictment, the refusal of the court to direct a verdict of not guilty, the rulings on evidence, and the instructions to the jury.

The fraudulent plan is set forth fully in the first count. The remaining counts do not repeat it, but each after a formal preamble as to the time and venue alleges: "Said defendants so having devised said scheme and artifice to defraud said Central States Life Insurance Company of St. Louis, Missouri, as hereinbefore set forth and described, in pursuance of said scheme, etc.," used the mails in a stated way. The objection is that the counts, except the first, set forth no crime because they do not allege any scheme or artifice to defraud; there being no express adoption of the allegations of the first count. That reference may be made to another count to avoid repetition is well settled. Crain v. United States, 162 U. S. 625, 16 S. Ct. 952, 40 L. Ed. 1097. That a reference in the very form above set forth is sufficient was held in Clark v. United States (C. C. A.) 298 F. 293.

The evidence, though circumstantial, was sufficient to carry the case as to each appellant to the jury. It was contended by the prosecution that in 1926, in Lakeland, Fla., Claude Nichols and J. W. Nichols, his brother, planned to take out life and accident insurance in favor of a fictitious person called William Edward Smith, to keep it in force a while, and then have a fictitious accidental death of Smith and collect the policies through a pretended widow. The evidence shows that insurance for $25,000 with double indemnity in case of accidental death was procured in the Central States Life Insurance Company, payable to the estate of Smith, and the policies were received and the first premium paid by Claude Nichols. Other policies issued by Shenandoah Life Insurance Company were never delivered because Smith was not produced to be re-examined, or to receive the policies in person. All communications by mail about the insurance were to be through a mail box in Lakeland, Fla., rented in the name of William Edward Smith, whom the postmaster did not know, but through one William Elbert Smith, whom he did know. All premiums that were paid were paid by or through the two Nichols, or by cashier's checks mailed from places where one of them had been. The policies went into default, and, the company not being able to find Smith, a reinstatement was effected through Claude Nichols. Conflicting statements were made by him about the home of Smith. In February, 1929, Claude Nichols made inquiries in Lakeland about the moral character of the stenographer of a friend there, and whether she would like to make a nice piece of money, but the matter was not followed up. The policies again fell into default, and would become wholly void on June 16, 1929. On June 9, 1929, Nell Sellers, the stenographer of J. B. Nichols, who was another brother practicing law at Miami, being on vacation at her parents' home at Jacksonville, went in company with J. W. Nichols and another man through the rain from Jacksonville to Waycross, Ga., where Nell Sellers and the other man under the name of William Edward Smith were married by the judge of the court of ordinary under a license there procured and paid for by Nichols. The ordinary and his son identified this Smith as the William Elbert Smith of Lakeland; he, however, proving a very good alibi. The bride and groom went back with Nichols to Jacksonville. The next day the bride returned to her father's home and the groom and J. W. Nichols went on to Miami, and on June 13th, joined by J. B. Nichols, went fishing in Biscayne Bay. At dusk, in a rain squall as to whose occurrence there is dispute, the two Nichols claimed that the boat was overturned, and all three men precipitated into the water, where Smith seemed to drown, but without struggle or sinking, the body floating for some half hour with the face downward, and that they were unable to rescue him, though they were expert swimmers. Becoming exhausted, they swam ashore, and...