Stewart v. United States

• Decision Date: 03 November 1902
• Docket Number: 1,717.
• Citation: 119 F. 89
• Parties: STEWART v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

119 F. 89

STEWART v. UNITED STATES.

No. 1,717.

United States Court of Appeals, Eighth Circuit.

November 3, 1902

Edgar E. Bryant (H. C. Mechem and W. R. Robertson, on the brief) for appellant.

John S Dean, U.S. Atty.

This was a proceeding by habeas corpus. An indictment was returned against J. P. Stewart, the appellant, and against Robert Boatright, E. E. Ellis, L. B. Gillett, and G. O. Stansbury on November 15, 1901, in the district court of the United States for the district of Kansas, Third division, charging them with an offense under section 5480 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 3696). Stewart, the appellant, being a resident of the Western district of Missouri, a complaint was filed by A. S. Van Valkenburgh, assistant United States attorney for the Western district of Missouri, before John M. Nuckols, United States commissioner within and for said district. Such complaint was made pursuant to the provisions of section 1014 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 716). A warrant was issued by the commissioner, under which Stewart was arrested and brought before him for a hearing, at which the commissioner held the defendant to bail in the sum of $2,000, to appear on the first day of the next term of the district court of the United States for the Third division of the district of Kansas. The defendant Stewart failed to give the required bond, whereupon the commissioner committed him to the custody of the marshal for the Western district of Missouri until a warrant of removal should be issued by the United States district judge for said Western district of Missouri pursuant to section 1014 of the Revised Statutes (U.S. Comp. St. 1901, p. 716). The appellant then applied for a writ of habeas corpus to the district court of the United States for the Western district of Missouri, and such a writ having been issued, and a return made thereto by the marshal who held the accused in custody, the district court ordered the writ to be discharged, and remanded the appellant to the custody of the marshal. The present appeal is from such order.

The question considered below, and for determination by this court, is whether the indictment which was returned and filed in the United States district court for the district of Kansas stated an offense under section 5480 of the Revised Statutes (U.S. Comp. St. 1901, p. 3696). As the indictment is quite lengthy and involved, and contains many immaterial allegations, the most material parts thereof, only, will be stated in haec verba. Omitting the introductory part, the indictment charged that Stewart, Boatright, Gillett, and Stansbury 'on or about the second day of August in the year * * * 1901 at the Third division of the district of Kansas * * * having before that time knowingly, wrongfully and unlawfully devised a scheme and artifice to defraud one J. M. Davis, of Bourbon county, Kansas, and certain other persons whose names are to the grand jurors * * * unknown of large sums of money, to wit: about $6,500, and other large sums of money from divers other persons, which said sums and the names of such other persons being to the grand jurors * * * unknown and which said scheme and artifice to defraud was to be effected by opening and intending to open correspondence and communication with the said J. M. Davis and one Joseph Cooke, both of Bourbon county, Kansas, and divers other persons whose names and addresses are to the grand jurors aforesaid unknown and by inciting and intending to incite and causing and intending to cause the said J. M Davis and the said Joseph Cooke and divers other persons * * * to open correspondence and communication with the said Robert Boatright, J. P. Stewart, E. E. Ellis, L. B. Gillett and G. O. Stansbury * * * and other persons to the grand jurors unknown, by means of the post-office establishment of The united States was a part of said scheme and artifice to defraud and which said scheme and artifice to defraud was and is in substance and effect as follows, to wit: that Webb City, Jasper county, Mo., is the headquarters for the defendants (above named) and a large number of other persons associated with said defendants, the names of such other persons being to the grand jurors aforesaid unknown, all of whom are associated together and have for a common purpose and design the promotion of pretended and fraudulent foot races, that among said defendants above named and their associates, with headquarters at Webb City, Mo., as aforesaid, there are a large number of persons who are known as professional foot racers, to wit: L. B. Gillett, G. O. Stansbury and others, the names of which said other professional foot racers being to the grand jurors aforesaid unknown, that it is the purpose and object of the said defendants above named together with the other persons associated with said defendants, by false, fictitious and fraudulent means and practices to induce divers and sundry persons throughout the United States of America and territories to visit Webb City, Jasper county, Mo., to wit, by opening and intending to (open) correspondence and communication with such divers and sundry persons and by inciting and causing such divers and sundry persons to open correspondence and communication with said defendants and their associates by means of the post-office establishment of the United States and otherwise and by inducing and procuring said defendants L. B. Gillett and Go. O. Stansbury and others of the associates of said defendants to go to various places in the United States and territories and become acquainted with divers and sundry persons and by false and fraudulent statements and representations made to such persons induce and procure such divers and sundry persons to visit Webb City * * * with the end in view of causing such person so induced to visit Webb City, Mo., to wager and advance to be wagered large sums of money and other property on the result of pretended and fraudulent foot races between certain persons above mentioned, to the end * * * that such persons so induced to visit Webb City, Mo., will wager and advance to be wagered their said money and property * * * upon the result of said pretended and fraudulent foot race, the result of which said races having already been prearranged and agreed upon between the said defendants and their associates aforesaid and by means of which said (prearranged) and agreement between said defendants and their associates aforesaid, then, there and thereby intending to defraud said divers and sundry persons whom they had theretofore induced to visit Webb City, Mo.; that the said defendants and their associates at all times represented themselves to be business men and merchants at Webb City, Mo., and men of reliability * * * of good credit and of good standing in the community * * * and honest in all (the) dealings, and able, willing and ready to meet any and all obligations incurred by them or any of them, when in truth and in fact the said defendants and their associates were associated together for the purpose and object of defrauding various persons whom they might induce or cause * * * to visit Webb City * * * for the purpose aforesaid, and in truth and in fact it was not the intention of the said defendants nor any of their associates to deal honestly with any person so induced to visit Webb City, Mo., * * * and in truth and in fact the said defendants were not honest, respectable nor reliable men, nor were they men of good standing in the community in which they lived nor were they willing or ready to meet their business obligations, but in truth and in fact the said defendants and their associates were gamblers, confidence men and swindlers, as they the said * * * defendants then and there well knew. ' After alleging the scheme to defraud in the manner aforesaid, the pleader next alleged in great detail what was done in the execution of the scheme. These allegations may be stated, in substance, and with greater brevity than in the indictment, as follows: The defendant Gillett went to Bronson, Kan., where Davis resided. He there made the acquaintance of Davis, and told him that he (Gillett) was a professional foot racer; that he knew a man by the name of Ellis, at Webb City, Missouri, who would bet a large sum of money on a foot racer by the name of Stansbury, and another man, by the name of Boatright, who would wager a large sum of money that he (Gillett) could beat Stansbury in a foot race; that Ellis would not bet with Boatright, because the latter knew how fast Stansbury could run, but that, if a stranger like Davis came along, Ellis could be induced to bet with him. He accordingly proposed that Davis should go to Webb City and make a bet with Ellis, telling him that Boatright would furnish the money, and allow him (Davis) 25 per cent. of what was won. Davis accordingly went to Webb City, and was there introduced by Gillett to Boatright and to the appellant Stewart, the latter of whom represented to Davis that Boatright was a reputable business man. Davis thereupon made a bet with Ellis, in the sum of $4,400, that Gillett could beat Stansbury; receiving the money wherewith to make the bet from Boatright, who was made stakeholder, and received the...