Paden v. United States, 10344.

• Decision Date: 13 August 1936
• Docket Number: No. 10344.,10344.
• Parties: PADEN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

85 F.2d 366 (1936)

PADEN v. UNITED STATES.^*

No. 10344.

Circuit Court of Appeals, Eighth Circuit.

August 13, 1936.

Charles E. Paden, pro se.

Henry G. Morris, Asst. U. S. Atty., of St. Louis, Mo. (Harry C. Blanton, U. S. Atty., of Sikeston, Mo., on the brief), for the United States.

Before GARDNER and SANBORN, Circuit Judges, and NORDBYE, District Judge.

NORDBYE, District Judge.

The appellant was convicted by a jury on two counts in an indictment charging him with unlawful use of the United States mails for the purpose of executing a scheme and artifice to defraud, and for the obtaining of money and property by means of false and fraudulent pretenses, representations, and promises. The parties will be referred to as they appeared below.

The scheme charged may be summarized as follows: The defendant purported to be operating a business known as the Lubri-Gas Laboratories at St. Louis, Mo. One Mueller and one Kurt inserted advertisements in one of the daily newspapers published in St. Louis on March 25, 1934, and May 20, 1934. These advertisements sought opportunities for the investment of money and services in some going business. At the time of the insertion of these advertisements, Mueller and Kurt were not acquainted with each other, nor was either acquainted with the defendant. Defendant answered both advertisements and requested an interview. In response thereto, these men called upon the defendant, and he interested them in a product called Lubri-Gas, concerning which product and the trade-mark thereto he evidently possessed some rights. He represented that he would employ these men forthwith, and would soon thereafter make them part owners of his business; that the business would be incorporated; that these two men would be officers of the corporation and that a salary of $35 per week would be paid to each, pending the incorporation and launching of the business; and that not less than 10 per cent. of the capital stock was to be allotted to each of them when the corporation was formed. The defendant represented that he had enjoyed a prosperous business with his product in prior years and that he had some $3,000 due him from an oil company in the West, which sum he expected daily, and, upon receipt of that remittance, the investors would be adequately secured, the new company financed and operations commenced. Acting and relying on these representations, Mueller and Kurt were each induced to pay the defendant $300 in cash as an investment in the business, which sum was to constitute a part of the capital of the contemplated venture. The government contends that the defendant devised this scheme to defraud, and that he unlawfully used the United States mails in furtherance thereof on March 27, 1934, and May 20, 1934, when he answered the advertisements above referred to; that defendant converted the money so paid to him to his own use, and did not carry out the agreements and promises that were made; that the promises and representations were made for the sole purpose of obtaining the money from these investors; and that he never did intend to give them anything in return for the money so paid.

Defendant was represented by several counsel during the trial and during some stage of the proceedings when the appeal was being perfected, but the brief presented herein was apparently prepared by the defendant himself. We gather that the defendant is not a lawyer. The bill of exceptions was prepared with the assistance of one of defendant's counsel, but the defendant has set up in his brief that which he contends to be the actual testimony of the witnesses. The brief purports to dispute the verity of the summary of the testimony of the witnesses as recited in the transcript of record. Apparently, there was no reporter present at the trial, and the parties evidently produced to the best of their ability their recollection of the testimony in narrative form as it appears in the bill of exceptions. The defendant's attempt to dispute and vary the bill of exceptions in the brief by assuming to recite his purported recollection of the exact questions and answers is improper, and the evidence recited cannot be examined by us in considering this appeal. We are confined to a consideration of the testimony as it is reflected in the bill of...