United States v. Clark
| Decision Date | 30 September 1903 |
| Docket Number | 6. |
| Citation | 125 F. 92 |
| Parties | UNITED STATES v. CLARK et al. |
| Court | U.S. District Court — Middle District of Pennsylvania |
S. J M. McCarrell, U.S. Atty.
C. A Van Wormer, for defendants.
The caption is wrong, but that is amendable. The indictment was found at the June term last at Williamsport, and the title should show it. The statement therein that it was found in October, 1902, is a mistake of the draftsman, due no doubt to the idea that it was to stand as an amended and not as an original indictment. But the records of the court show the time, and by them it can now be corrected. 10 Enc.Plead.&Prac. 425. There are other defects, however, which are more serious.
The first and third counts are good, and so is the last. The joinder of the latter is another matter, which will be disposed of presently. The complaint made against the two former, that they combine a federal offense with one of false pretense against the state law, cannot be maintained. It is true that at the close each of these counts contain certain averments with regard to what may be called the consummation of the fraudulent scheme, and while it may be that these are unnecessary, if not to some extent objectionable, as tending to lead the mind away from the real issue, yet they do not vitiate that which is good in the counts, and may be disregarded as surplusage, allowing the rest to stand.
The second and fourth counts, however, are bad. In the second it is not charged that the letter there said to have been deposited in the post office was so deposited for the purpose of carrying out or executing the fraudulent scheme which the defendants are alleged to have devised. This is a material part of the offense, and cannot be omitted. It is the use of the mails as a means of accomplishing the fraud that is the gravamen of the charge, and we cannot supply it by intendment.
In the fourth count the defendants are charged with mailing on various days between May 26, 1901, and May 26, 1902, in pursuance of the scheme described, 'a large number of letters, circulars, and booklets, to wit, 500 letters, 500 circulars, and 500 booklets, addressed to various persons whose names and addresses are to the grand jurors * * * as yet unknown. ' Aside from its general indefiniteness, an omnibus count of this character cannot be sustained. Each letter put into the post office in pursuance of such a scheme constitutes a separate...
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