United States v. Ball

• Decision Date: 14 January 1924
• Docket Number: 3409.
• Citation: 294 F. 750
• Parties: UNITED STATES v. BALL et al.
• Court: U.S. District Court — Middle District of Pennsylvania

294 F. 750

UNITED STATES v. BALL et al.

No. 3409.

United States District Court, M.D. Pennsylvania.

January 14, 1924

Alton A. Vosburg, Asst. U.S. Atty., of Scranton, Pa. (Andrew B Dunsmore, U.S. atty., of Wellsboro, Pa., on the brief), for the United States.

J Julius Levy, of Scranton, Pa., for defendants.

WITMER District Judge.

The defendants, Albert K. Ball, Mark Ball, and Louis Ball, were indicted, charged with a violation of section 215 of the Penal Code (Comp. St. Sec. 10385). The indictment contained one count alleging that the defendants 'did unlawfully, willfully, maliciously, and feloniously devise a scheme or artifice to defraud, and to use the mail service of the United States government to carry said scheme into effect,' and that in pursuance to said fraudulent scheme or artifice the said defendants did 'make out and send and cause to be sent, postage paid, through the United States mails, a certain false and fictitious statement of their financial condition. ' The defendants demurred to the indictment on the ground that it did not allege that the defendants, or any of them, knew that the financial statement which they mailed was in truth and in fact false and fictitious.

The sending of false statements of accused's financial condition to persons from whom he desired credit was not originally considered punishable under section 5480, Revised Statutes. However, it is now well settled that under section 215 of the Penal Code the mailing of a false financial statement to a commercial agency, with a knowledge that it was false and that it would be used to secure the extension of credit to him, is within the section. Scheinberg v. United States, 213 F. 757, 130 C.C.A. 271, Ann. Cas. 1914D, 1258; United States v. Akers (D.C.) 232 F. 963; Kaplan v. United States, 229 F. 389, 143 C.C.A. 509.

The sole question is whether a failure to allege the knowledge of defendants as to the truth or falsity of the statement made is fatal to the indictment. A careful examination of the cases cited by government's counsel shows that in those cases there was an allegation as to the knowledge of the defendants. In United States v. Akers (D.C.) 232 F. 963, the indictment is set out in full and contains the following in the first count:

'Whereas, in truth and fact, the said so-called 'Atlantic Lumber & Coal Company' was not a bona fide business association of persons, and was not financially good, solvent, reliable, and responsible, and did not do a bona fide business as dealers in yellow pine and hardwood lumber, steam and domestic coal, all of which the said Simon A. Akers then and there well knew.'

In Crane v. United States, 259 F. 480, at page 482, 170 C.C.A. 456, at page 458, the court said:

'It is said that the indictment alleges no facts showing fraud. But it clearly alleges a scheme to defraud people by means of the misrepresentations fully set forth. It also charges that the representations made were false and known to be false.'

In Belden v. United States, 223 F. 726, 139 C.C.A. 256, also relied upon by government's counsel, an examination of the indictment there set out shows that in three places in the indictment it is alleged that the defendants well knew that the facts stated by them were not true.

In Riddell v. United States, 244 F. 695, 157 C.C.A. 143, also cited by government's counsel, the indictment, which is reported at length in the opinion, contains the allegation as follows:

'Whereas, in truth and in fact, and as the defendant then and there well knew the said lots were not contiguous,' etc.

And similar allegations of knowledge of the defendant appear repeatedly in that indictment. The particular question here involved was, therefore, not directly before the court in any of the cases cited, but, on the contrary, the framer of the indictment in each case appears to have considered such an allegation of knowledge essential, and to have inserted it.

There is no doubt under the older statute, section 5480, Revised Statutes, but that, where the gravamen of the charge was a falsity of the pretense or statement, it required a distinct...