Spear v. United States
| Decision Date | 01 January 1915 |
| Docket Number | 4385,4386. |
| Parties | SPEAR v. UNITED STATES. PORTER v. SAME. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Lewis Rhoton, of Little Rock, Ark., John M. Goodwin, of St. Louis Mo., and George W. Murphy, of Little Rock, Ark. (H. H. Myers and E. L. McHaney, both of Little Rock, Ark., and McShane & Goodwin, of St. Louis, Mo., on the briefs), for plaintiff in error Spear.
Lewis Rhoton, X. O. Pindall, and George W. Murphy, all of Little Rock, Ark. (H. H. Myers, of Little Rock, Ark., on the brief) for plaintiff in error Porter.
W. H Martin, U.S. Atty., of Hot Springs, Ark. (W. H. Rector, Asst. U.S. Atty., of Little Rock, Ark., on the brief), for the United States.
Before HOOK, Circuit Judge, and ELLIOTT and YOUMANS, District Judges.
Spear and Porter were indicted in five counts, the first four of which charged fraudulent use of the mails, and the last a conspiracy to commit the offenses set forth in the others, in violation of sections 215 and 37 of the Penal Code (Comp. St. 1913, Secs. 10385, 10201). There were convictions and sentences on all the counts, except that Porter was acquitted on the first. They obtained these writs of error.
At the threshold of the cases is the question of the sufficiency of the counts for fraudulent use of the mails. If they fall, that for conspiracy depending on them falls also. In respect of this question the first count is typical of the others. It charged that defendants and their associates, having devised a scheme to defraud certain named persons and others of their money and property by means of false and fraudulent pretenses, representations, and promises, for the purpose of executing it, caused the letter set forth to be deposited in a certain post office of the United States for transmission and delivery. The scheme described was what is commonly called a confidence game, and involved the use of a pretended pool room at Hot Springs, Ark., upon the boards of which appeared to be inscribed the results of races at Juarez, Mexico, and other distant cities, a capper who pretended to and convinced the victims of his advanced knowledge of the results of the races and the sure success of the wagers he advised, and so forth. In this case the victims were announced as winners, but having put up checks, instead of cash, the worth of the checks was brought in question, and they were required to leave them to the test of collection as an assurance of good faith on their part. Up to this point the description of the scheme is full and complete. The defect in the count as claimed is that no averment follows that defendants or their associates intended to convert to their own use the proceeds of the checks intrusted to them. It is true that the count, instead of continuing the descriptive form of words, breaks off into recitals of what the parties actually did, with some connective references to the preconceived scheme. Thus it is charged that 'in carrying out the said scheme and artifice, and in said manner and form as contemplated,' by defendants and their associates, 'in devising said scheme and artifice,' they received a check or draft from one of their victims for $10,000 on a bank in New York City; 'and so having the said check or draft in their possession, * * * for the purpose of having said check or draft presented and collected for the use and benefit of' themselves, they caused a certain local bank to forward it for collection 'for the account of' defendant Spear.
It is contended that these averments are not a part of the description of a scheme to defraud, and that without them it does not appear there was any intention wrongfully to convert the check or draft or its proceeds, and therefore there could be no defrauding. Milby v. United States, 48 C.C.A. 574, 109 F. 638.
A general averment that defendants devised a scheme to defraud is by itself not sufficient, without descriptive details showing its character and that it was reasonably calculated to effect the wrongful design. Here the details in descriptive form fall short, but we think the direct averments of what defendants and their associates did and intended are fairly ascribable to and explanatory of the scheme to defraud charged in general language. The receipt of the victim's check, the intent that it should be presented and collected for their use and benefit, though it belonged to him, and the causing it to be forwarded for collection for the account of one of the defendants, all were by way of carrying out the scheme in the manner and form as contemplated when the scheme was devised. This conclusion is plainly to be drawn from the words of the indictment. Again the character of the offenses charged in the first four counts is not conspiracy. In an indictment for conspiracy, the omission of an essential element of the offense cannot be cured by the statement of the acts done to effect it, though it may be looked at to ascertain the sense in which terms are used. Stearns v. United States, 82 C.C.A. 48, 152 F. 900. This is so,...
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United States v. Powell, Criminal Action No. 3:07-CR-324
...of an innocent agency intentionally employed to reach and use the mails in effecting a scheme to defraud.") (quoting Spear v. United States, 228 F. 485, 488 (8th Cir. 1915)). Courts have found that a perpetrator of a fraud may not defend himself by blaming the victim for being duped. See, e......
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...of guilt. The charge actually given to the jury in the instant case belongs to the latter type of instructions. In Spear v. United States, 8 Cir., 1916, 228 F. 485, 488, conviction for using the mails to defraud was reversed for the sole reason that the court had charged the jury as "Anothe......
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...that the state so prove each material element of each crime charged. State v. Green, 126 Vt. 311, 228 A.2d 792 (1967); Spear v. U.S., 228 F. 485, 143 CCA 67 (8 Cir. 1915), cert. den. 246 U.S. 667, 38 S.Ct. 335, 62 L.Ed. 929; State v. Ottley, 147 Iowa 329, 126 N.W. 334 (1910); State v. Kimes......
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...through innocent media such as, for instance, banks which whom checks, the fruits of the fraud, were deposited. See, Spear v. United States, 1915, 8 Cir., 228 F. 485, 488; Spear v. United States, 1917, 8 Cir., 246 F. 250, 251; Shea v. United States, 1918, 6 Cir., 251 F. 440, 448; Savage v. ......