Smith v. United States
| Decision Date | 28 June 1920 |
| Docket Number | 5246,5380.,5245 |
| Parties | SMITH v. UNITED STATES (two cases). THOMPSON v. SAME. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John Lee Webster, of Omaha, Neb., for plaintiffs in error.
Howard Saxton, Sp. Asst. U.S. Atty., of Omaha, Neb. (T. S.
Allen U.S. Atty., of Lincoln, Neb., on the brief), for the United States.
Before HOOK and CARLAND, Circuit Judges, and TRIEBER, District Judge.
The plaintiffs in error, referred to hereinafter as the defendants, prosecute these writs of error to secure a reversal of the conviction and sentences for violating section 37 of the Penal Code (Comp. St. Sec. 10201) conspiring to violate section 215 of the Penal Code (section 10385). There were a large number of other persons charged as defendants in the indictment; some were dismissed, and a number of others were tried with the defendants and found guilty; but these three plaintiffs in error are the only defendants prosecuting writs of error. While a separate writ of error was secured by each of them, they were submitted on one record and argued as one cause; the evidence against all being practically the same.
The indictment contains only one count, and charges the defendants with conspiring in the county of Douglas, in the Omaha division of the district of Nebraska to violate section 215 of the Penal Code, in devising and intending to devise a scheme and artifice to defraud all such persons who could or might be induced by means of the fraudulent and false device representations, pretenses, and promises, hereinafter mentioned, to become purchasers of horses from the U.S. live Stock Company, a corporation organized under the laws of the state of Nebraska; that for the purpose of carrying the fraudulent scheme into effect they placed and caused to be placed in the post office of the United States at Omaha, Neb., and in divers other post offices of the United States, to be sent and delivered by the post office establishment of the United States, certain letters, writings, and advertisements in newspapers. It then describes the fraudulent scheme and artifice to have been that the conspirators organized and caused to be organized a corporation under the laws of the state of Nebraska, in the name of U.S. Live Stock Company, having its principal place of business at Omaha, in the state of Nebraska, with a pretended capital stock of $200,000, which they would fraudulently and falsely claim and represent to be of the value of $200,000; that the nature of the business to be transacted by said corporation would be to buy, sell, breed, and raise live stock of all kinds and descriptions, and engage in certain other businesses, not necessary to set out; that they then pretended to be the owners of large numbers of horses, located on a range in Coconino county, state of Arizona; that they would represent the horses were of a value of not less than $50 per head, averaging in weight from 900 to 1,200 pounds and upward; that said horses were in part Percheron, Hamiltonian, and Belgian breeds, and among them were a number of valuable stallions; that said horses were running wild upon the said range, but were easily accessible, and could be readily caught and reduced to possession at very little expense by purchasers; that they would make pretended sales of said horses, in large numbers, to all such persons as might thereby be induced to purchase the same, and thereupon would execute a pretended bill of sale in the name of said corporation and in the names of some of the defendants, in which bill of sale the horses pretended to be sold would be described as from 2 to 3 and 6 to 8 years old, sound and free from blemish and disease, weighing from 900 pounds upwards, free from all incumbrances, on said range in Coconino county, Ariz., and to be gathered and loaded at the expense of the purchasers.
It is then charged that the capital stock of said corporation was of little or no value, and was not intended to be any part of the business to be transacted by it, as stated in the articles of incorporation; that neither of the defendants, nor the U.S. Live Stock Company, owned or possessed any considerable number of horses in said Coconino county, Ariz., nor elsewhere; that they owned less than 500 horses, which had been running wild upon said range for many years, were practically worthless, even if they could be secured, all of said horses being so wild and untamable as to render it impossible to secure them, and all of which were at the time incumbered for more than their value; that there were no horses of Percheron, Hamiltonian, or Belgian breeds, or any stallions of any appreciable value; that all of the representations made by them to purchasers were false, as they well knew, and were intended by the conspirators for the fraudulent purpose, to deceive intending purchasers, and defraud them of large sums of money and property of great value. It then charges 12 overt acts of the use of the mails, naming persons to whom the letters were sent through the mails, and advertisements in a number of newspapers published in a number of cities in different Western states, which were largely circulated through the mails.
A demurrer to the indictment was by the court overruled, and upon a trial to a jury a verdict of guilty was returned against these defendants and a number of others, who are not prosecuting writs of error.
After the granting of the writs of error, the defendants applied to this court for leave to file additional assignments of error, which was denied. Notwithstanding this denial, counsel for defendants in their briefs and oral arguments relied almost entirely upon these assignments of error, which are no part of the record. This is not permissible. Kreuzer v. United States, 254 F. 34, 165 C.C.A. 444.
Under rule 11 (188 F. ix, 109 C.C.A. ix) the court, at its option, may notice a plain error not assigned. Nor will the court refuse to notice a substantial error committed during the trial, when the accused's liberty is involved, although no exceptions were taken, nor included in the assignment of errors. But it is only in a clear case, to prevent a miscarriage of justice, that an appellate court will consider an alleged error, not called to the attention of, and not passed on by, the trial court. Gillette v. United States, 236 F. 215, 149 C.C.A. 405. If it appears from the entire record that the accused is clearly guilty, errors not excepted to will afford no ground for reversal. It was so held by this court in the late case. Williams v. U.S. (C.C.A.) 265 F. 625.
The ground upon which counsel for...
To continue reading
Request your trial
-
Hartzell v. United States
...In prosecutions of this character, great latitude is allowed in the introduction in evidence of attending circumstances. Smith v. United States (C. C. A. 8) 267 F. 665. "The competency of a collateral fact to be used as the basis of legitimate argument is not to be determined by the conclus......
-
Borum v. United States
...307, 308-309 (1849). See also Williamson v. United States, 207 U.S. 425, 451, 28 S. Ct. 163, 52 L.Ed. 278 (1908); Smith v. United States, 267 F. 665, 668 (8th Cir. 1920). 23 1 Wigmore, Evidence § 38 (3d ed. 24 Ewing v. United States, supra note 17, 77 U.S.App.D.C. at 17, 135 F.2d at 636. 25......
-
Feinberg v. United States
...v. United States, 264 F. 75, 77; Prosser v. United States, 265 F. 252, 253; McNutt v. United States, 267 F. 670, 672; Smith v. United States, 267 F. 665, 667; Holland v. United States, 268 F. 244, 245; Sturtz v. United States, 268 F. 350, 351), the propriety of the instructions to the jury ......
-
State v. Fries
...'In prosecutions of this character, great latitude is allowed in the introduction in evidence of attending circumstances. Smith v. United States (C.C.A. 8) 267 F. 665. "The competency of a collateral fact to be used as the basis of legitimate argument is not to be determined by the conclusi......