Tucker v. United States

• Citation: 224 F. 833
• Decision Date: 20 July 1915
• Docket Number: 2600.
• Parties: TUCKER v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

224 F. 833

TUCKER v. UNITED STATES.

No. 2600.

United States Court of Appeals, Sixth Circuit.

July 20, 1915

[Copyrighted Material Omitted]

W. M Shohl, of Cincinnati, Ohio (James H. Polsgrove, of Frankfort Ky., on the brief), for plaintiff in error.

Thomas D. Slattery, U.S. Atty., of Covington, Ky.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

KNAPPEN Circuit Judge.

Plaintiff in error (whom we shall call defendant) was indicted under section 215 of the Criminal Code of the United States for using the mails to effect a scheme to defraud. The defendant, who resided at Frankfort, Ky., on February 20, 1911, ordered from one Gill, a retail dealer in jewelry at St. Louis, Mo. (at which place defendant had formerly lived), a described style of wedding ring. The ring was received, and on March 6th following defendant mailed Gill a check for $8 covering the payment, and in a postscript to the letter of remittance said that, if Gill had a 'bargain in 1 1/2 or 2 carat diamond,' defendant would like to have Gill send it on approval, stating setting and size. Gill accordingly sent two diamonds, one at a price of $235, the other $265. Defendant received both rings, but returned neither of them, and made no payment on their account. The gist of defendant's alleged scheme to defraud, as tersely stated by the trial judge in his instructions to the jury was 'to induce Gill to send him (defendant) two diamonds on approval, under the pretense that, if he approved them, he would pay for them, but with the intention of converting them to his own use and not to pay for them. ' The indictment contains two counts, each charging the same scheme to defraud, but differing in this: The first count alleges the mailing of the second letter (March 6th) in furtherance of the fraudulent scheme; the second count charges the mailing of the first letter (February 20th) for the like purpose. At the close of the trial defendant asked an instructed verdict in his favor, which was refused. The jury, under the charge of the court, found defendant guilty under the first count only. Defendant was accordingly sentenced to imprisonment, and to pay a fine and costs.

1. It is urged that the acts charged do not constitute a crime under article 215 of the Criminal Code; the specific proposition being that the ordering of a diamond ring by mail, with intent not to pay for it, does not amount to a scheme or artifice to defraud under that section of the Code. The case was submitted here at the same session as Bettman v. United States (No. 2740, this day decided) 224 F. 819, . . . C.C.A. . . ., and defendant has had the benefit of the arguments made for plaintiff in error in the Bettman Case. The latter case involved the contention that the Code provision in question did not cover a single case of the obtaining of loans of money through false and fraudulent representations of the borrower's financial condition; and there, as here, it was urged that the statute has no application to the ordinary case of actual or attempted obtaining of money or property by false and fraudulent representations, even though the post office establishment of the United States is employed in the execution of such fraudulent design. In our opinion in the Bettman Case the general proposition referred to is carefully considered and discussed. We there pointed out the all-embracing nature of the statute, and reached the conclusion that the charge in the Bettman Case was within it. That decision logically requires the same conclusion respecting the charge in the instant case, and makes unnecessary here the full discussion perhaps otherwise called for. There are, however, several authorities specially pertinent to the present case (some of which are cited in the Bettman Case) making it additionally clear that the statute applies to transactions such as here charged.

In Evans v. United States, 153 U.S. 584, 592, 14 Sup.Ct. 934, 938 (38 L.Ed. 830), Mr. Justice Brown, in support of the proposition that the action of an officer of a national bank, in procuring a note to be discounted in order to defraud the bank, was within section 5209 of the Revised Statutes (Comp. St. 1913, Sec. 9772), used this pertinent language:

'The case is not unlike that of purchasing goods or obtaining credit. If a person buy goods on credit in good faith, knowing that he is unable to pay for them at the time, but believing that he will be able to pay for them at the maturity of the bill, he is guilty of no offense, even if he be disappointed in making such payment. But if he purchases them, knowing that he will not be able to pay for them, and with an intent to cheat the vendor, this is a plain fraud, and made punishable as such by statutes in many of the states.'

In Durland v. United States, 161 U.S. 303, 313, 16 Sup.Ct. 508, 40 L.Ed. 709, Mr. Justice Brewer, in declaring the all-inclusive nature of section 5480 of the Revised Statutes, and in rejecting the contention that a misrepresentation to be within the statute must relate to an existing or a past fact, and cannot consist of a mere intention not to carry out the contract in the future, quoted with approval, and as applicable to the case under discussion the extract from Mr. Justice Brown's opinion in the Evans Case which we have above set out.

In Culp v. United States, 82 F. 990, 27 C.C.A. 294, the Circuit Court of Appeals for the Third Circuit, speaking through Judge Acheson, held that a scheme to defraud by sending letters requesting the persons addressed to sell and ship to defendant articles of merchandise for which he agreed to pay the shippers, but for which in fact he did not intend to pay, was within section 5480. This decision was cited by this court with approval in an opinion by Judge Clark, concurred in by Judges Lurton and Severens. Milby v. United States, 109 F. 638, 642, 48 C.C.A. 574. In Charles v. United States, 213 F. 707, 711, 712, 130 C.C.A. 221, Ann. Cas. 1914D, 1251, it was held by the Circuit Court of Appeals for the Fourth Circuit, speaking through Judge Pritchard, that the mailing with an order for goods of a check drawn upon a bank in which the sender had no funds, and which he himself did not intend to pay, but intended to defraud the party in whose favor the check was drawn, was within section 215 of the Criminal Code. In both the Culp and Charles Cases the Evans Case was cited. True, in the instant case defendant did not in terms promise to pay for or return the goods, but such promise was plainly open to implication from the request to send the diamonds on approval. It is a familiar principle that false pretenses need not be spoken, but may be acted. 2 Wharton's Criminal Law (11th Ed., 1912) Sec. 1434. The implication of a promise to return or pay for the diamond whose delivery on approval was asked was fully as clear as the implied representation in the Charles Case that the sender had funds in the bank on which the check was drawn, and that he intended thereby to make payment. In Harrison v. United States, 200 F. at page 665, 119 C.C.A. 78, it was said by Judge Denison, speaking for this court, that the deception involved in a fraudulent plan to get money or property of others 'may, of course, be by implication as well as by express words.'

It is immaterial that the indictment charged that the use of the mails was an element of the original scheme to defraud (not necessary under section 215 of the Code-- United States v. Young, 232 U.S. 155, 34 Sup.Ct. 303, 58 L.Ed. 548), and that the trial judge made such finding necessary to conviction. Defendant could thereby have been in no way misled to his prejudice. See Sandals v. United States (C.C.A. 6) 213 F. 569, 572, 130 C.C.A. 149.

2. The exception to the refusal of defendant's motion for directed verdict at the close of all the testimony is available, notwithstanding a similar motion at the close of the government's testimony was waived by defendant's introduction of evidence; and if we can say that the testimony, taken together, was as consistent with defendant's innocence as with his guilt it will be our duty to reverse. Harrison v. United States, supra.

Defendant contends that he made no false or fraudulent representations respecting his worthiness for credit or his ability to pay for the diamond asked for, and that the testimony, taken together, was at least as consistent with his innocence as with guilt. We pass by as without merit the suggestion that the deception alleged to have been resorted to would not have deceived a seller of ordinary intelligence. O'Hara v. United States, 129 Fed.at page 555, 64 C.C.A. 81.

The crucial question upon this branch of the case is whether there was evidence from which the jury was justified in finding that when defendant asked that a diamond be sent him on approval he then intended to convert it to his own use without paying for it. The diamonds were sent by express, accompanied by a memorandum that they remained Gill's property until regular bill should be rendered. There was testimony tending to show that defendant was unable to buy and pay for the diamonds; that his visible property (the contents of a pool and billiard room) was mortgaged, and that he owed all or substantially all the property was worth; that he failed to answer the first two or three letters from Gill asking the return of the diamonds, finally promising to pay for them by April 15th. No remittance, however, was sent. There was testimony that Gill finally went to Frankfort to look after his diamonds, and was there told by defendant that he could do nothing about them, and that defendant's reason for such statement was none of Gill's business; that Gill then employed an attorney to recover the diamonds or payment for them; that defendant refused to...