Tucker v. United States
| Citation | 5 F.2d 818 |
| Decision Date | 26 March 1925 |
| Docket Number | No. 6658.,6658. |
| Parties | TUCKER et al. v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
S. P. Freeling, of Oklahoma City, Okl. (J. I. Howard, of Oklahoma City, Okl., on the brief), for plaintiffs in error.
J. W. Scothorn, Asst. U. S. Atty., of Oklahoma City, Okl. (W. A. Maurer, U. S. Atty., and James A. Ingraham and Roy St. Lewis, Asst. U. S. Attys., all of Oklahoma City, Okl., on the brief), for defendant in error.
Before KENYON, Circuit Judge, and TRIEBER and PHILLIPS, District Judges.
Dudley R. Tucker, William L. Tucker, and Howard A. Tucker, hereinafter called defendants, were charged by indictment with the violation of section 215 of the Penal Code (25 Stat. 873 Comp. St. § 10385). The indictment contained five counts. The first count charged that the defendants, having devised a scheme and artifice to defraud certain persons named in that count, on the 15th day of September, 1920, for the purpose of executing such scheme and artifice to defraud, caused to be placed in the United States post office at Oklahoma City, Okl., for mailing and delivery by the post office establishment of the United States, a certain newspaper, to wit, the Daily Oklahoman, which contained an advertisement, prepared by the defendants and printed in said newspaper at the special instance and request of the defendants, in words and figures following, to wit:
The first count further alleged in detail the scheme and artifice to defraud and the means and methods by which the defendants intended to carry out the same.
The remaining counts were substantially the same as the first count, except the second charged the placing of the newspaper in the post office on the 16th day of November, 1920, and the following advertisement:
And the third count charged the placing of the newspaper in the post office on the 21st day of November, 1920, and the following advertisement:
And the fourth count charged the placing in the newspaper in the post office on the 2d day of December, 1920, and the following advertisement:
And the fifth count charged the placing of the newspaper in the post office on the 14th day of December, 1920, and the following advertisement:
The assignments of error may be grouped under three principal contentions:
First, that the trial court erred in admitting over objection Government's Exhibit 1, being a copy of the Daily Oklahoman of September 15, 1920, containing the advertisement alleged in count 1; Government's Exhibit 2, being a copy of the Daily Oklahoman of November 16, 1920, containing the advertisement alleged in count 2; Government's Exhibit 3, being a copy of the Daily Oklahoman of November 21, 1920, containing a copy of the advertisement alleged in count 3; Government's Exhibit 4, being a copy of the Daily Oklahoman of December 2, 1920, containing a copy of the advertisement alleged in count 4; and Government's Exhibit 5, being a copy of the Daily Oklahoman of December 14, 1920, containing an advertisement similar to the advertisement alleged in count 5.
Second, that the trial court erred in overruling the motion of the defendants, for a directed verdict of not guilty, on counts 1, 2, 3, and 4.
Third, that the trial court erred in requiring the defendant Dudley R. Tucker to answer on cross-examination whether he had inserted or caused to be inserted, in the Daily Oklahoman, the advertisements alleged in the several counts of the indictment.
The crimes charged are made up of two principal elements: (1) A scheme or artifice devised or intended to be devised to defraud; (2) causing an advertisement to be placed in the post office to be sent or delivered by the post office establishment of the United States, for the purpose of executing such scheme or artifice, or attempting so to do. Robins v. U. S. (C. C. A. 8) 262 F. 126; Bowers v. U. S. (C. C. A. 9) 244 F. 641, 157 C. C. A. 89; U. S. v. Young, 232 U. S. 155, 34 S. Ct. 303, 58 L. Ed. 548.
In the Young Case the court said:
"* * * The elements of an offense under section 215 are (a) a scheme devised or intended to be devised to defraud, or for obtaining money or property by means of false pretenses, and (b) for the purpose of executing such scheme or attempting to do so, the placing of any letter in any post office of the United States to be sent or delivered by the post office establishment."
The first two contentions relied on by defendants may be treated together, and require an examination of the evidence offered to prove the second element of the offenses charged.
In the government's case in chief there was no direct evidence that the defendants, or any of them, caused the advertisements alleged in the indictment to be inserted in the Daily Oklahoman.
For the purpose of establishing that defendants caused such advertisements to be inserted, the government called a number of witnesses, who testified that they called on Dudley Tucker and advised him they had read an advertisement of Tucker Bros. in the Daily Oklahoman and wanted to know about the proposition, and that Dudley Tucker then explained the plan to them and employed them for Tucker Bros.
Keeping in mind that the copy of the advertisements was changed from time to time, let us examine the testimony of these witnesses with reference to the point under consideration:
W. A. Harris testified that he read advertisements in issues of about July 4, 1920.
L. L. Prosser testified that he called on Dudley Tucker in response to an advertisement, and thereafter entered into a contract with Tucker Bros. The contract was dated August 19, 1920.
N. E. Weaver testified that he learned of Tucker Bros.' proposition from other employees of Tucker Bros.; that later he saw an advertisement in the paper and wrote Tucker Bros. and asked if they were still wanting men. He received a reply dated September 21, 1921.
Charles Geiger testified that he read an advertisement in the Daily Oklahoman; that he met Dudley Tucker and William Tucker September 30, 1920, and told them he had read their advertisement; that Dudley Tucker explained the proposition and gave Geiger to understand it was Tucker Bros.' advertisement he had read; that he entered into a contract with Tucker Bros., dated October 11, 1920; that he saw the advertisement in an issue published during September; that the advertisement did not say anything about invest or investment, but said the person would have to put up a $2,000 cash bond; and that he "did not see an ad stating an attractive proposition could be offered to a responsible man who would invest."
R. C. Dohe testified that he saw an advertisement published between January 5 and 15, 1921; that the advertisement said "Men who could put up bond of $1,000 or $2,000"; that he could not say the advertisement was the same as those set forth in Government's Exhibits 1, 2, 3, 4, and 5.
Charles H. Darling testified that he answered Tucker Bros.' advertisement by letter and received a letter in reply dated January 6, 1921; that he then called on Dudley Tucker and entered into a contract dated January 11, 1921.
Roy L. Bradshaw testified that he saw advertisements in February, 1921, and that he thereafter called upon Dudley Tucker and entered into a contract with Tucker Bros.
S. R. Walker testified that he saw advertisement and called on Dudley Tucker February 10, 1921.
J. H. Roberts testified that he saw the advertisements in the fall of 1920, and in January and February, 1921; that on February 26, 1921, he met Dudley Tucker, told him he "had noticed these advertisements in the paper," and "had come down to get his proposition on it."
Frank Greshman testified that he "read advertisements in various newspapers signed by Tucker Bros. Amusement Company, saying they wanted reliable men who could deposit cash bond of $1,000; that they would pay $40 a week salary"; that between February 20 and 25, 1921, he called on Tucker Bros. and discussed proposition with Dudley Tucker; that he only discussed advertisement which read $1,000 deposit and $40 a week"; and that he inquired only as to the $1,000 proposition.
I. L. Sheets testified that he read an advertisement of Tucker Bros. in the Daily Oklahoman, published about the middle of December, 1920; that he answered the advertisement, and met Dudley Tucker, the latter part of December, 1920.
E. K. McKinnis testified that he saw the advertisement alleged in count 5 in December, 1920; that he wrote a...
To continue reading
Request your trial
-
State v. Nagy
...when one accused of crime becomes a witness in his own behalf, he subjects himself to cross-examination and impeachment. Tucker v. U.S., 5 F.2d 818 (C.C.A.Okl.1925); Tomlinson v. U.S., 68 App.D.C. 106, 93 F.2d 652, 114 A.L.R. 1315 (1938), certiorari denied 303 U.S. 646, 58 S.Ct. 645, 86 L.E......
-
State v. Dace
...at 304. The days of the restrictive rule of cross-examination deservedly appear to be numbered. Id. at 1095-96. In Tucker et al. v. United States, 5 F.2d 818 (8th Cir.1925), the Eighth Circuit Court of Appeals followed the restrictive rule. The subsequent above cited "inroad" case of Johnso......
-
Hamer v. United States
...advise him that he could assert such a privilege." Relying on United States v. St. Pierre, 2 Cir., 1942, 132 F.2d 837; Tucker v. United States, 8 Cir., 1925, 5 F.2d 818. We cannot think that counsel for defendant, in his zealous assertions of the constitutional rights of his clients, would ......
-
Ziegler v. United States, 11555.
...was not waived by McKnight or by Hilliard. In Harrold v. Territory of Oklahoma, 8 Cir., 169 F. 47, 17 Ann.Cas. 868, and Tucker v. United States, 8 Cir., 5 F.2d 818, cited by appellant, the defendants (Harrold and Tucker) were required by the trial court, on cross-examination, to answer ques......