Spear v. United States

• Decision Date: 29 October 1917
• Docket Number: 4865.,4864
• Citation: 246 F. 250
• Parties: SPEAR v. UNITED STATES. [1] PORTER v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

246 F. 250

SPEAR v. UNITED STATES. ^[1]

PORTER v. UNITED STATES.

Nos. 4864, 4865.

United States Court of Appeals, Eighth Circuit.

October 29, 1917

George W. Murphy, of Little Rock, Ark. (C. Floyd Huff, of Hot Springs, Ark., and E. L. McHaney, of Little Rock, Ark., on the brief), for plaintiff in error Spear.

X. O Pindall, of Little Rock, Ark., 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, SMITH, and STONE, Circuit Judges.

HOOK Circuit Judge.

Spear and Porter were again convicted of fraudulent use of the mails and conspiracy (Penal Code, Secs. 215, 37), after having been awarded a new trial (Spear v. United States, 143 C.C.A. 67, 228 F. 485), and have again prosecuted writs of error. A description of the fraudulent scheme will be found in our former opinion and need not be repeated here.

No error was committed in denying Spear a continuance. The granting or denial of a continuance is a matter of discretion, and is not subject to review in an appellate court unless it be clearly shown that the discretion was abused. There was no such abuse by the trial court.

Complaint is made of the admission in evidence of letters of a bank transmitting by mail certain drafts and checks to other banks for collection and remittance. The drafts and checks had been received from the victims of the fraudulent scheme by those actively engaged in conducting it. The latter turned them over to Spear, and he delivered them to a local bank for collection. The bank did not cash them, but accepted them for collection. Part of the scheme was to keep the victims quiescent until reports of payment were received. Collection of the drafts and checks was essential to the full consummation of the fraud, and the evidence of Spear's guilty assistance was sufficient. When he intrusted them to the bank he made it his agent, although it was innocent of the fraud. United States v. Kenofskey, 243 U.S. 440, 37 Sup.Ct. 438, 61 L.Ed. 836. The drafts and checks were drawn on banks in distant cities. The custom among banks, almost invariable, is to forward such collection items by mail with letters of transmittal, and Spear must have known the local bank would follow the ordinary course in the absence of instructions to the contrary. When the bank deposited the letters of transmittal in the mails, Spear, in legal effect, caused them to do so. United States v. Kenofskey, supra.

Complaint is also made that the trial court in charging the jury commented upon the absence of witnesses to identify the men who, in a short period of time, gave between $30,000 and $40,000 of such drafts and checks to Spear. We see no objection to the remarks of the court. They were addressed largely to...