Rasmussen v. United States
| Decision Date | 04 January 1925 |
| Docket Number | No. 4670.,4670. |
| Parties | RASMUSSEN et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Arthur H. Hutchinson, of Seattle, Wash., for plaintiff in error Rasmussen.
Guy E. Kelly and Thomas MacMahon, both of Tacoma, Wash., for plaintiff in error Thayer.
Thos. P. Revelle, U. S. Atty., and John A. Frater, Asst. U. S. Atty., both of Seattle, Wash.
Before GILBERT, HUNT, and McCAMANT, Circuit Judges.
Defendants and one Bigelow were convicted of having devised and intended to devise a scheme and artifice to defraud certain persons and others unknown and using the mail for the purpose of executing the scheme. Section 215, Penal Code (Comp. St. § 10385).
The charge was that defendants were to organize associations known as 66 Oil Syndicate and 44 Oil Syndicate of Seattle, for the purpose of selling units or shares in such organizations to the persons named and referred to in the indictment. Defendants were to represent that the syndicates were formed to drill for oil in Allen and Warren counties, Ky., and had assets in certain described leases of 438 acres in said counties; that the leases were of great financial value; that the tracts covered by the leases would probably produce petroleum in large and profitable quantities; that all moneys paid by investors to defendants would be devoted entirely to the drilling for petroleum and developing the tracts, and would not be used for any other purpose; that certain named mercantile agencies and various banks in Kentucky and Washington had investigated the financial condition of the syndicates and had found them to be sound, and would so advise "victims"; that defendants were to and did solicit and obtain large sums of money in exchange for shares in said syndicates; that part of the scheme was to assure large returns to the purchaser; that there was no chance to lose money invested; that the salesmen and others associated with the syndicates received no commissions or salaries; that there was no promotion stock; that all moneys invested would be returned with 8 per cent. interest if dividends were not paid within six months from date of purchase; that all unit holders were to receive from 3 to 36 per cent. per month on the amount invested; that the company was selling oil and producing from 10 to 72 barrels per day from the wells. The allegations of the indictment negatived all these representations, and charged that by means of the scheme defendants obtained large sums, and to effectuate the scheme they mailed and caused to be mailed certain letters addressed to named persons, setting forth in alluring terms the value of the investment and the probabilities of dividends.
Rasmussen was convicted under counts 4, 7, and 8, and Thayer was convicted under count 4. They sued out writs and filed separate assignments of error and briefs.
Defendants urge that the court erred in denying their motion for a directed verdict upon the ground that the evidence was insufficient to sustain conviction. But as the bill of exceptions signed by the judge fails to show affirmatively or by inference that it contains all the testimony produced upon the trial, the question whether there was any substantial evidence to warrant a conviction is not before us for review. Oregon American Lumber Co. v. Simpson, 8 F. (2d) 946 (decided November 16, 1925). Obviously, the appellate court cannot say that the presumption in favor of the verdict has been overcome in that there is lack of evidence, unless all the testimony that was produced before the lower court is brought up for review. Meyer v. Everett Pulp & Paper Co., 193 F. 857, 113 C. C. A. 643; Goldfarb v. Keener (C. C. A.) 263 F. 357; Buessel v. United States, 258 F. 811, 170 C. C. A. 105; Taylor Craig Corporation v. Hage, 69 F. 581, 16 C. C. A. 339; Greenspaln v. United States (C. C. A.) 298 F. 736. We therefore pass to assignments founded...
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