Savage v. United States

• Decision Date: 28 December 1920
• Docket Number: 5549.
• Citation: 270 F. 14
• Parties: SAVAGE v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

270 F. 14

SAVAGE v. UNITED STATES. ^[1]

No. 5549.

United States Court of Appeals, Eighth Circuit.

December 28, 1920

[Copyrighted Material Omitted]

William H. Dickson, of Denver, Colo., for plaintiff in error.

Otto Bock, Asst. U.S. Atty., of Denver, Colo. (Harry B. Tedrow U.S. Atty., of Denver, Colo., on the brief), for the United States.

Before SANBORN and CARLAND, Circuit Judges, and MUNGER, District Judge.

MUNGER District Judge.

The plaintiff in error (hereafter called defendant was convicted of a violation of section 215 of the Penal Code (Comp. St Sec. 10385). The indictment contained 15 counts. Four different schemes were alleged, with a charge in each count of the mailing of a letter or other writing in the attempted execution of the scheme. In each count it was charged that the defendant devised a scheme to defraud by planning to incorporate a company under the laws of Colorado, adopting as its name the firm name of an existing unincorporated partnership or association then doing business, and in operation, buying and selling merchandise, of which latter company defendant would not be a member and in which he would have no interest, and further planning to have stationery and letter heads printed bearing the name of the unincorporated company. Some of the counts aver that the defendant also planned to ascertain from whom the unincorporated association purchased goods, and then through letters, telegrams, and other means of communication to receive merchandise not intended for him, and for which he would not pay but would convert to his own use. Other counts charged a plan to obtain goods without paying for them, without averring that the persons to be defrauded had previously sold goods to the unincorporated company. Other counts charged plans to have the mail intended for the unincorporated company diverted to his company, and thereby to ascertain to whom the unincorporated company had made shipments of goods, and then to obtain control of such merchandise and to obtain payment for it himself; the remaining counts charged a plan to obtain possession of checks and negotiable instruments belonging to the unincorporated company, and then to convert them and their proceeds to his own use. The defendant was found guilty under each count of the indictment, and a single sentence was imposed.

The defendant contends that it was error to overrule his motion to quash, and his demurrer to, the indictment. No exception was taken to the ruling of the court, but independently of this the sentence imposed did not exceed that which could have been rendered upon conviction under any count of the indictment, and therefore there would be no reversible error, if one of the 15 counts stated an offense. Claasen v. United States, 142 U.S. 140, 146, 12 Sup.Ct. 169, 35 L.Ed. 966; Evans v. United States, 153 U.S. 608, 609, 14 Sup.Ct. 939, 38 L.Ed. 839; Abrams v. United States, 250 U.S. 616, 619, 40 Sup.Ct. 17, 63 L.Ed. 1173; Pierce v. United States, 252 U.S. 239, 40 Sup.Ct. 205, 64 L.Ed. 542; Doe v. United States, 253 F. 903, 904, 166 C.C.A. 3; United States v. Lair, 195 F. 47, 50, 115 C.C.A. 49; Haynes v. United States, 101 F. 817, 819, 42 C.C.A. 34.

It is said that no scheme to defraud was stated, because it was not alleged that the unincorporated partnership or association whose name the defendant would adopt as a corporate name for his incorporation, was a duly organized partnership or association. In support of this contention is cited section 4778 of the Revised Statutes of Colorado (1908), which provides that such associations shall file with a county officer an affidavit setting forth the full names and addresses of all persons so represented, and that in default of such filing the association shall not be permitted to sue for the collection of debts, and the person in default shall be guilty of a misdemeanor. The penalties thus imposed are limited, and do not expressly deprive the associations of the right to transact business, and as interpreted by the Supreme Court of Colorado, the statute is to be strictly construed and does not embrace any penalty except those provided by the terms of the act. Wallbrecht v. Blush, 43 Colo. 329, 332, 95 P. 927.

Moreover the substance of the scheme charged was not the mere use of a corporate name similar to the name of an existing association, but to use it so as to have the credit and reputation of the other company in order to obtain goods not intended for defendant, and for which he would not pay, and the failure to allege that the unincorporated partnership or association, then doing business and in actual operation, was duly organized, did not prejudice the defendant, and make the indictment fatally defective, in view of the provisions of section 1025, Rev. Stat. (section 1691, U.S. Comp. Stat.). See McClendon v. United States, 229 F. 523, 525, 143 C.C.A. 591.

The particulars of the scheme are matters of substance, and must be set forth with sufficient certainty as to its existence and character that the indictment will fairly acquaint the defendant with the scheme charged against him; but the gist of the offense is the mailing of the letter, writing, or article in pursuance of the scheme, and the scheme itself need not be pleaded with all the certainty as to time, place, and circumstance that is required in charging the gist of the offense, the mailing of the matter in execution or attempted execution of the scheme. Colburn v. United States, 223 F. 590, 592, 139 C.C.A. 136; McClendon v. United States, 229 F. 523, 525, 143 C.C.A. 591; Gardner v. United States, 230 F. 575, 578, 144 C.C.A. 629; MacKnight v. United States (C.C.A.) 263 F. 832, 837.

It is urged that some counts of the indictment do not state an offense, and no offense under them was proved, because the letters set out in the indictment and given in evidence bore a heading which read 'The Rocky Mountain Purchasing Association (Inc.), 311 Ideal Building, Denver, Colorado,' and that the words 'the,' the abbreviation '(Inc.)' and the address '311 Ideal Building' showed no intent to defraud as it clearly indicated that the defendant's company, and not the unincorporated company, was transacting the business. But the letters are signed by the same name as that of the unincorporated association, and the contents of the letters are such as might readily lead the addressees to believe they were dealing with the unincorporated association. It is not necessary to allege or to prove that the letters mailed in pursuance of the scheme to defraud under this section of the Penal Code are calculated to be effective in carrying out the scheme. Durland v. United States, 161 U.S. 306, 315, 16 Sup.Ct. 508, 40 L.Ed. 709; Lemon v. United States, 164 F. 953, 957, 90 C.C.A. 617.

There are 4 counts, numbered 11, 12, 13, and 15, which set out writings in which appear only the name 'The Rocky Mountain Purchasing Association,' and count 14 alleges a writing setting out the name 'Rocky Mountain Pur. Ass'n.' We see no reason for holding the indictment invalid, because of any of the objections urged.

It is assigned that the court erred in refusing the defendant's motion for a bill of particulars, but such a motion is addressed to the discretion of the court and ordinarily is not reviewable (Dunlop v. United States, 165 U.S. 486, 491, 17 Sup.Ct. 375, 41 L.Ed. 799; Knauer v. United States, 237 F. 8, 13, 150 C.C.A. 210; Horowitz v. United States (C.C.A.) 262 F. 48, 49); and no such motion is found in the record.

Complaint is made because the case was submitted to the jury. At the close of the evidence the defendant asked for opportunity to present a motion for a directed verdict, and the court answered that it would be overruled, but gave leave to put it in any form desired later on. No exception was taken to the ruling of the court, and no motion appears to have been filed or presented. Notwithstanding this failure to accept, the court may notice a claim that the evidence is insufficient (Doe v. United States, 253 F. 903, 915, 166 C.C.A. 3), and the record has been examined to see whether there is substantial evidence in support of any count of the indictment, for the rule is that a judgment of conviction will not be reversed for insufficiency of the evidence, if it is sufficient to support one of several counts in the indictment and the penalty imposed is not in excess of that which could be imposed under that count. Blackstock v. United States (C.C.A.) 261 F. 150, 152; Bold v. United States (C.C.A.) 265 F. 581, 582; Schoborg v. United States (C.C.A.) 264 F. 1, 10; Wessels v. United States (C.C.A.) 262 F. 389, 391; Baldwin v. United States, 238 F. 793, 795, 151 C.C.A. 643; Harrington v. United States (C.C.A.) 267 F. 97, 103.

It is not very seriously contended that the defendant did not cause the letters and writings to be mailed as charged in the indictment, but the claim is that no scheme to defraud was proved. No extensive review of the evidence is practicable but there was evidence relating to the first 5 counts tending to show that the defendant had been the active manager and apparently the only person interested in a company at Denver called the Northwestern Supply Company. This company dealt in electrical and automobile supplies. It opened correspondence with the Miniature Incandescent Lamp Corporation of New Jersey, seeking to purchase automobile lamps made by the latter company. The New Jersey company refused to quote prices, and referred the inquirer and the inquiry to the Rocky Mountain Purchasing Association of Denver,...