Roper v. United States, 498.

• Decision Date: 21 December 1931
• Docket Number: No. 498.,498.
• Citation: 54 F.2d 845
• Parties: ROPER v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

54 F.2d 845 (1931)

ROPER v. UNITED STATES.^*

No. 498.

Circuit Court of Appeals, Tenth Circuit.

December 21, 1931.

Edwin H. Park, of Denver, Colo., for appellant.

Ivor O. Wingren, Asst. U. S. Atty., of Denver, Colo.

Before PHILLIPS and McDERMOTT, Circuit Judges, and POLLOCK, District Judge.

POLLOCK, District Judge.

The appellant was convicted of using the mails in furtherance of a scheme to defraud. The scheme alleged was that the defendant would represent that he was a wholesale merchant engaged in the sale of (a) meal and other farm products, and (b) that he was in the market to purchase and sell in carload quantities, and (c) that by means of letters and telegrams he would communicate with the victims and solicit them to either sell their farm products to him, or buy farm products from him. That in connection with this scheme he made certain false pretenses concerning (a) his financial standing, (b) his ability to pay for the goods sold, (c) to pay for goods bought, and (d) to deliver the goods sold. That particularly he promised that he would promptly pay for commodities purchased upon receipt of bills of lading, whereas in truth and fact he would not pay promptly for them in the regular course of business, and that at the time he made such representations he did not intend to pay for them. It is further particularly alleged that he represented that he would promptly deliver commodities which he had for sale upon receipt of a cash advance, whereas he did not have any commodities for sale and did not intend to deliver such commodities when he made the representations.

A motion to quash the indictment was denied. The evidence disclosed that Roper had a one-room office, and no stenographer; that Roper conceded that he owed money to the persons charged to have been defrauded. He declined to tell where he had a produce warehouse. The evidence further disclosed that he did business with a letterhead which had on it: "Codes; Robinson, Armsby, L. W. Roper, Wholesale Merchants, Beans, Peas, Hay, Field Seeds, Poultry Supplies, Denver." The evidence further disclosed that he wrote to a railroad agent at Murdo, S. D., asking him to put him in touch with some shippers who would sell him some hay. It also discloses that he initiated a deal with the Elliott Brokerage Company, Bluefield, W. Va., by offering to sell them some beans. Mr. Elliott had known Mr. Roper for two years prior to this correspondence.

The evidence also discloses that Roper wrote to a Minneapolis concern asking for the names of some brokers and commission merchants in Minneapolis and St. Paul who specialized in the handling of poultry supplies. This was not one of the things charged in the indictment, but it does show a solicitation of customers, and is also competent, in our judgment, as proof as to other similar offenses. The record also discloses that Roper wrote the Farmers' Elevator Company of Douglas, Wyo., soliciting business, which was turned over to a Farm Bureau which dealt with him. It also seems that he initiated transactions with Doern-Scarritt-Hannah Company at Chicago, by sending them samples of seed and offering to deal with them.

There is considerable similarity in all of the correspondence. If he was buying stuff from farmers, he expressly told them not to draw drafts, sometimes saying that he might want to divert the shipments. He would get the produce and then fail to pay for it and would put them off by saying that he would send the remittance in a few days. On the other hand, where he was selling goods, he would not ship any merchandise without an advance payment. When he got the advance payment he failed to ship the merchandise. In none of the transactions explored did the defendant either pay for farm products which he bought, nor did he ship goods for which he had received an advance payment.

The defendant relies upon the following errors:

1. That the indictment was insufficient in that it did not specifically deny the truth of the representations. We do not agree. It is true that the denial is introduced with the phrase, "Whereas in truth and in fact," but in each instance there was a positive statement that he did not intend to deliver the commodity he agreed to sell and deliver, and that he did not intend to pay the victims for the commodities which he purchased. The allegation in the indictment that he made representations as to his financial standing was not expressly negatived. It is our judgment, however, that the indictment alleges with sufficient certainty the nature of the scheme to enable the defendant to defend and protect himself against further prosecutions. It advises him that he used the mails to defraud eight named persons by procuring goods or money from them without the intent to pay for the goods bought or to ship the goods sold. The principal reliance of the defendant on this aspect is the case of Dalton v. United States (C. C. A.) 127 F. 544, the authority of which has been greatly impaired by the same circuit in Grossman v. United States, 282 F. 790, and Ader v. United States, 284 F. 13. The Third Circuit is squarely opposed in Culp v. United States, 82 F. 990.

We have treated the defendant's "Motion to Quash" as a demurrer, because it attacks the sufficiency of the facts set out in the indictment, and is not confined to an attack upon the validity of the indictment. If, however, it should be treated as a motion to quash in the proper sense, the overruling thereof is ordinarily not assignable as error. The indictment is sufficient, in any event, when attacked only by a motion to quash. In the head note to the opinion in United States v. Rosenberg, 74 U. S. (7 Wall.) 580, 19 L. Ed. 263, it is said: "This court cannot take cognizance, under the Judiciary Act of 1802, of a division of opinion between the judges of the Circuit Court, upon a motion to quash an indictment."

In the opinion of the court, delivered by Mr. Chief Justice Chase, it is said: "The motion to quash, upon which the question now before us arose, was clearly determinable as a matter of discretion. It was preliminary in its character, and the denial of the motion could not finally decide any right of the defendant. The rule laid down by the elementary writer is, that `a motion to quash is addressed to the sound discretion of the court, and if refused, is not a proper subject of exception.'"

In Durland v. United States, 161 U. S. 306, 16 S. Ct. 508, 511, 40 L. Ed. 709, the great lawyer, Mr. Justice Brewer, in delivering the opinion for the court, said: "These objections were raised by a motion to quash the indictment, but such a motion is ordinarily addressed to the discretion of the court, and a refusal to quash is not, generally, assignable for error. Logan v. United States, 144 U. S. 263-282, 12 S. Ct. 617 36 L. Ed. 429."

In Endleman v. United States (C. C. A.) 86 F. 456, 458, it is said: "The objections raised by the motion to quash the indictment may be dismissed with the observation that a motion to quash an indictment is ordinarily addressed to the discretion of the court, and therefore a refusal to quash cannot generally be assigned as error." Citing U. S. v. Rosenberg, 7 Wall. 580, 19 L. Ed. 263; U. S. v. Hamilton, 109 U. S. 63, 3 S. Ct. 9, 27 L. Ed. 857; Logan v. U. S., 144 U. S. 263, 12 S. Ct. 617, 36 L. Ed. 429.

In 22 Cyc. 413, it is said: "A motion to quash an indictment is ordinarily addressed to the...