Tillery v. United States
| Decision Date | 28 November 1922 |
| Docket Number | 3895. |
| Parties | TILLERY v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
The defendant, Mark Tillery, was convicted on three counts of an indictment based upon section 215 of the Penal Code (Comp St. Sec. 10385). The scheme to defraud set out was alleged to be substantially as follows: That the defendants, Tillery Stem, Price, Porter, and others unknown to the grand jury would seek out unskilled and incautious persons and falsely pretend that Tillery was in possession of unusual means of information as to the price at which certain stocks were and would be quoted on a certain fictitious stock exchange; that it would be possible, by engaging in speculations on such stock exchange, to win large sums of money; that the defendants would thereafter pretend that they had made such speculations, and had won large sums for the joint benefit of themselves and any victims they might be able to inveigle into their scheme, but that before such sums could be collected it would be necessary for the defendants or their victims to procure and exhibit other large sums of money as evidence of good faith; that the defendants would induce their victims to provide and furnish the necessary sums of money, which they would thereafter falsely pretend to lose in another speculation, and which they would then convert to their own use. It was then alleged that one Tom Kite was selected by the defendants as one of their victims. It was next alleged that, 'for the purpose of executing such scheme and artifice to defraud,' the defendants deposited and caused to be deposited in the post office of the United States at El Paso, Tex., certain described writings intended to be sent and delivered by the post office establishment.
The first count alleges the mailing of two certain drafts, each in the sum of $5,000, by a bank in El Paso, Tex., to a bank in Abilene, Kan. The second count alleges the mailing of a letter from a bank in El Paso to a bank in Ransom, Kan., in which was inclosed a card with Kite's signature on it and requesting information by wire as to whether the signature was genuine. The third count alleges the mailing of a cashier's check, payable to Kite, in the sum of $5,000, by a bank in El Paso to a bank in Kansas City, Mo.
The testimony of Tom Kite, alleged in the indictment to be a victim, was substantially as follows: He casually met the defendant Stem on a street in El Paso, and Stem pointed out to him the defendant Tillery as a man who had created a sensation in Peoria, Ill., by winning a very large sum of money upon speculations in stock. Stem then introduced Kite to Tillery, and thereupon these two defendants discussed the possibility of speculating on the International Stock Exchange across the street. Tillery went in the direction of the Stock Exchange, and came back claiming to have won $5 for Stem. Tillery then stated that he was under a $100,000 bond to his employers, represented to be stockbrokers in New York, 'not to speculate' on his own account, and that his uncle was surety on this bond. Tillery then handed to Stem what appeared to be $500, with the request that Stem go to the said Exchange and buy Mexican Petroleum stock. Stem left, and returned in a few minutes, and stated that Tillery had won $500, and handed to him what appeared to be $1,000. Thereupon Tillery stated that 'they might as well make a killing,' and directed Stem to place the $1,000 already won, or represented to be, on stock at the Exchange, saying at the same time that the winnings should go 30 per cent. to Kite, 30 per cent. to Stem, and the balance to Tillery. Stem left, and came back with the report that $40,000 had been won on the last speculation. Kite and the defendants then went to Tillery's room, and shortly were visited there by defendant Price, who displayed a roll of bills which he stated contained $60,000. Price stated that the amount necessary to put up in order to win the $40,000 was $20,000, and inasmuch as that amount had not been deposited with the Exchange, or in a bank, it would be necessary for the winners to raise that amount as evidence of good faith, and as showing that they could have paid, if they had lost. Price required that this amount of money should be raised within 30 days. Tillery, after claiming he had tried to raise the money and failed, appealed to Stem and Kite to raise it. Stem said he could raise half of it. Kite went back to Kansas and raised $10,000 by placing a mortgage upon his farm, and returned within a few days with the two drafts described in the first count of the indictment. Tillery went with Kite to a bank in El Paso, but did not go into the bank. He told Kite to go in and get the drafts cashed immediately, if possible, and, if not, to have them sent by mail for collection. The bank adopted the latter course and mailed the drafts. In due course the drafts were paid, and the bank delivered $10,000 in currency to Kite, which he almost immediately thereafter delivered to Tillery. At the same time Stem also handed to Tillery what appeared to be $10,000 in currency. Tillery then turned the money over to Stem, with instructions to collect the $40,000 already won, and to invest Tillery's proportion thereof by selling Baldwin Locomotive stock on the Exchange. Stem departed, and returned in a few minutes with the statement that he had invested the whole amount of $40,000. It then apparently developed that Stem had not sold, but, on the contrary, had bought, Baldwin Locomotive stock. ...
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Headley v. United States
...use of the mails and the scheme to defraud as a conclusion, and without setting out the facts on which it is based. The case of Tillery v. U.S., 285 F. 119, decided by this sustained an indictment in which the averment, in this respect, was that the use of the mails was 'for the purpose of ......