Rimmerman v. United States

• Citation: 186 F. 307
• Decision Date: 29 March 1911
• Docket Number: 3,396.
• Parties: RIMMERMAN et al. v. UNITED STATES. [1]
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

186 F. 307

RIMMERMAN et al. v. UNITED STATES. ^[1]

No. 3,396.

United States Court of Appeals, Eighth Circuit.

March 29, 1911

[Copyrighted Material Omitted]

N. A Gibson (W. W. Hyams, on the brief), for plaintiffs in error.

Wm. J Gregg, U.S. Atty. (Frank Lee, Asst. U.S. Atty., on the brief), for the United States.

Before SANBORN and ADAMS, Circuit Judges, and WM. H. MUNGER, District judge.

WM. H MUNGER, District Judge.

Plaintiffs in error were indicted, tried, convicted, and sentenced in the United States Court for the Eastern District of Oklahoma for a violation of section 5480 of the Revised Statutes, as amended March 2, 1889 (25 Stat. 873). The indictment, though not skillfully drawn, in substance, charges defendants with having devised a certain scheme and artifice to defraud one John R. King, which scheme and artifice to defraud was to be effected by opening correspondence and communication with said King by means of the post office establishment of the United States. The indictment is very lengthy, occupying over three pages of the printed record. The scheme to defraud is stated with much detail, and, when analyzed, shows it was for the purpose of defrauding King out of certain hotel property owned by him in the state of Illinois of the value of $12,000, to be accomplished by representing and stating to King that they were the owners of a certain 360 acres of land in Hughes county, state of Oklahoma, of the value of $32 per acre, which they would exchange with said King for his said property; that, in fact, they had no title or interest in said land in Oklahoma; that they undertook to convey said land to King by a pretended deed purporting to have been made by one Thomas H. Wright and Dora Wright; that they intended to defraud and did in fact defraud said King out of his said hotel property, with a view to, and did, immediately convert the same to cash; that in furtherance of said scheme, and as a means of executing the same, they unlawfully, feloniously, willfully, and knowingly deposited and caused to be deposited in a certain United States post office at Holdenville, in the state of Oklahoma, one certain registered envelope addressed to the postmaster at Bridgeport, Ill., which contained a certain envelope addressed and directed to said King at Bridgeport, Ill., said envelope being duly stamped with postage thereon, and which envelope then and there contained a certain letter, dated at Holdenville, Okl., and directed to said King at Bridgeport, Ill., which purported to be signed by one of the defendants, a copy of which letter was set out in the indictment, and that said letter also contained three certain written opinions of a party named to the effect that the title to said land in Oklahoma was vested in said Thomas H. Wright, which letter, being so deposited in the United States post office, was 'transferred by means of the post office establishment to said John R. King, in furtherance of, and in execution of, the aforesaid scheme and artifice to defraud.'

A general demurrer was filed to the indictment, which was overruled.

It is settled law that the statute under which the indictment in this case was based contains three essential elements, which must be charged in the indictment in a substantial manner:

'(1) The person charged must have devised or intended to devise a scheme or artifice to defraud. (2) He must have intended to effect the scheme or artifice by opening correspondence or communication with some person through the mail or by inciting some person to open communication with him through the mail. (3) In and for executing the scheme or artifice, or attempting to do so, he must have either deposited a letter or other communication in the post office for transmission and delivery, or taken or received one therefrom. ' Brown v. U.S., 143 F. 60, 74 C.C.A. 214, and cases cited.

It is not necessary that the scheme charged in the indictment, if carried out, would necessarily defraud. It is sufficient if the scheme as charged is reasonably adapted to defraud. Durland v. U.S., 161 U.S. 306, 16 Sup.Ct. 508, 40 L.Ed. 709; Miller v. U.S., 133 F. 341, 66 C.C.A. 399; Brooks v. U.S., 146 F. 223, 76 C.C.A. 581. Such was the character of the scheme as charged in this case.

The facts constituting this scheme were stated in a manner to acquaint accused of the charge against them and sufficiently to render the indictment unobjectionable as against a demurrer in that respect.

If the language used was such that the defendants might be surprised by the production of evidence for which they were unprepared, they should, before the trial, have applied for a bill of particulars. It was said by Justice Van Devanter, then circuit judge, speaking for this court, in Rinker v. U.S., 151 F. 755-759, 81 C.C.A. 379, 383:

'When an indictment sets forth the facts constituting the essential elements of the offense with such certainty that it cannot be pronounced ill upon motion to quash or demurrer, and yet is couched in such language that the accused is liable to be surprised by the production of evidence for which he is unprepared, he should, in advance of the trial, apply for a bill of the particulars; otherwise it may

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