Underwood v. United States

• Decision Date: 20 July 1920
• Docket Number: 3379.
• Citation: 267 F. 412
• Parties: UNDERWOOD v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

267 F. 412

UNDERWOOD v. UNITED STATES.

No. 3379.

United States Court of Appeals, Sixth Circuit.

July 20, 1920

Charles E. Belcher, of Columbus, Ohio, and Sherman T. McPherson, of Cincinnati, Ohio (Sherman T. McPherson, of Cincinnati, Ohio and Belcher & Connor, of Columbus, Ohio, on the brief), for plaintiff in error.

Stuart R. Bolin, Sp. Asst. Atty. Gen. (Stuart R. Bolin, of Columbus Ohio, on the brief), for the United States.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DONAHUE Circuit Judge.

The plaintiff in error was convicted in the United States District Court for the Southern District of Ohio on both counts of an indictment charging him with using the United States mail in the furtherance of a scheme to defraud. The defendant filed a general demurrer to each count of the indictment, which demurrer was overruled by the court, and exceptions noted.

The first count charges in effect that John Allen Underwood devised a scheme or plan for the purpose of obtaining through false and fraudulent representations, from the Young Men's Christian Association, $2,500 and travel expenses that in furtherance of this fraudulent intent he made false statements relating to his personal character, age education, church affiliations, experience in business, and in social and charitable work, and that he fraudulently represented that Edgar A. Todd had signed a certain paper writing purporting to recommend him to the Young Men's Christian Association, and answering certain questions in reference to his character, habits, education, and ability for charitable and social work; that John Allen Underwood did on or about the 1st day of December, 1917, place and cause to be placed in the post office of the United States, situated in the state of Ohio, city of Piqua, county of Miami, within the Western division of the Southern Judicial district of Ohio, and within the jurisdiction of the District Court of that judicial district, to be sent and delivered by the post office establishment of the United States, a certain letter, together with the false statement in writing, signed by him, and the written recommendation purporting to have been signed by Edgar A. Todd. These several papers are copied in full in this count of the indictment. The letter is as follows:

'December 1, 1919.

'Mr. Raymond P. Kaighn, Nat'l War Work Council, T.M.C.A., New York City-- Dear Mr. Kaighn: Please pardon the delay in reply to your letter of November 20th, which has been due to my absence in Washington, looking after this company's business with the government in cantonment heating. I am returning herewith the information blank you sent me, completely filled out as you request. You will also find the only available photograph of myself inclosed. Please see that this is returned to me as soon as possible. I am confident that my experience and information can be made of some use and value in association war work, and I hope you will give my application the fullest measure of consideration.

'Yours sincerely,

J. A. Underwood.

'JAU ESF'

Next follows a copy of the written recommendation purporting to have been made by Edgar A. Todd. This consists of questions and answers, undoubtedly on a blank prepared by the Young Men's Christian Association for this purpose. The heading is as follows:

'Concerning: John Allen Underwood, 220 Green St., W., Piqua, Ohio.

'Filled in by: Edgar A. Todd, 726 N.Downing St., Piqua, Ohio.'

Then follow the questions and answers. The answers are extremely favorable to Underwood, and unequivocally recommend him to the managing officers of the Young Men's Christian Association for honesty, ability, integrity, experience, character, religious affiliation, religious and social activities, and capacity to fill any important executive or administrative office.

The other paper, claimed to have been written by Underwood himself, is under the heading 'Application Blank,' and consists of questions and answers. The answers to these questions are substantially all favorable to the applicant, particularly in reference to his education, habits, health, business ability, church affiliations, and experience in promoting educational and social activities. In response to the inquiry as to his present salary the answer is '$7,500.' As to age the answer is, '31 years.' The answer to question 11, 'What salary would you accept in present emergency work?' is '$2,500 and travel expenses.' Then in parenthesis the following: 'Turn over, page 2.' On page 2 is the further answer to question 11:

'I am not taking any interest in the financial compensation of Assoc. War Work. I am willing to make any sacrifice in income in order to be of service. I have indicated the amount ($2,500 and traveling expenses) on the other side, because I figured I will require about that amount to pay insurance, taxes, and living expenses. I am willing to accept whatever the Assoc. believes is fair, and what it is accustomed to pay.'

In answer to question 35, 'Give names and addresses of three other persons whom we may ask as to your experience and qualification for this work,' the following appears:

'Edgar A. Todd, Treas. Atlas Underwear Co., Piqua, Ohio. Otto A. Simon, 313 N. Downing St., Piqua, Ohio. Paul J. Weaver, 410 De Balivuere, St. Louis, Mo. (Over.)'.

Later in the paper is a further answer to questions 34 and 35 as follows:

'Any bank in Piqua can give you unquestioned reference as to my integrity, honesty, and reputation. The gentlemen whom I have mentioned know me personally and have for years.'

The indictment further avers that Edgar A. Todd did not then, or at any other time, make any such recommendation, either orally or in writing, and that the answers of Underwood to the questions in the application blank were untrue in reference to his age, the salary he had been receiving, his church membership, the amount of goods he had marketed yearly for the period of eight years, his membership in organizations promoting social and religious activities, his prior connection with and understanding of the retail business, and his management of a department store, and that he was not, as set forth in this statement, qualified for service in the Young Men's Christian Association activities in war work, and that he did not at the time set forth possess the qualifications which he claimed he did possess for such work.

It is claimed on behalf of Underwood that this count does not state with sufficient particularity the facts upon which the charge in the indictment is based. On the contrary, it would seem that it does fully state every fact and circumstance upon which the government expects to rely in the prosecution of this case. The more important question presented by the demurrer to this count is whether the facts as stated therein constitute the offense charged. Counsel for the government has, in his brief, fairly and clearly stated the natural and necessary conclusion to be reached from the reading of this count in the indictment. His statement in that respect is as follows:

'It must be admitted that the $2,500 per year and traveling expenses was not to be the direct result of the alleged pretenses, but was to be compensation for services under the contract for the employment which he was attempting to secure by such pretenses.'

This statement concedes that the primary purpose of Underwood was to secure employment, and that the salary and traveling expenses were merely incident thereto, and that in furtherance of his purposes to secure such employment he made the false and fraudulent statements charged in the indictment. It is claimed, however, that the immediate...