United States v. Maxey

• Decision Date: 02 December 1912
• Docket Number: 3,203.
• Parties: UNITED STATES v. MAXEY.
• Court: U.S. District Court — Eastern District of Arkansas

200 F. 997

UNITED STATES v. MAXEY.

No. 3,203.

United States District Court, E.D. Arkansas, Western Division.

December 2, 1912

In order to understand the matter fully, it is advisable to set out so much of the indictment as describes the offense charged. It charges that the said defendants 'did then and there knowingly, willfully, and unlawfully conspire confederate, and combine to commit an offense against the United States, to wit, the offense of knowingly, willfully and unlawfully devising a scheme or artifice to defraud the Royal Highlanders, a fraternal insurance company, which was then and there a corporation organized to carry on business in the state of Nebraska, said scheme and artifice to be to obtain money, to wit, the amount of two insurance policies by means of fraudulent pretenses and representations, namely by falsely representing to the said corporation that one Henry B. Copeland, upon whose life the said insurance company had theretofore issued two insurance policies for the sums of $3,000 and $2,000, respectively, aggregating the sum of $5,000, payable by the said corporation upon the death of the said Henry B. Copeland, and not before, which policies were then and there outstanding and in full force, that the said Henry B. Copeland was dead, and to forge and fabricate proofs of the death of the said Copeland, and to cause the said proofs of death to be forged and fabricated, and to forward the same through the mails of the United States, and to cause the same to be so forwarded to the said corporation for the purpose of soliciting and obtaining payment of the said policies, whereas, in truth and in fact, the said Copeland was not then dead, and is not now dead, as the said defendants, and each of them, then and there well knew, and now know, the purpose of the said scheme or artifice being to defraud the said Royal Highlanders out of the said sum of $5,000 upon the false pretenses and representations that the said assured was dead; that in order to effect the object of the said conspiracy the said Copeland on the 5th day of January, 1912, did knowingly, willfully, and unlawfully then and there cause to be deposited in the post office of the United States in the city of Hot Springs, in said district and division, and did then and there so place and cause to be placed in said post office, a certain letter of which the following is a copy: (Then the letter is copied in full.)-- which letter was addressed to Mr. J. F. Sharp, Chief Secretary of the Royal Highlanders, at Aurora, Nebraska, and signed L. R. Maxey, in which letter said defendant stated that he had previously sent a night letter to the said Sharp of the death of said Henry B. Copeland, and that in said letter of January 5, 1912, the said defendant stated that the said Copeland died on December 30th, whereas, in truth and in fact, the said defendant was not then and there dead, and is not now dead, as the said defendants, and each of them, then and there well knew.'

Wm. G. Whipple, U.S. Atty., and Powell Clayton, Asst. U.S. Atty., both of Little Rock, Ark.

Murphy & McHaney, of Little Rock, Ark., for defendant.

TRIEBER District Judge (after stating the facts as above).

The law is well settled that a judgment in a criminal case will, after conviction, be arrested only for matter appearing of record which would render the judgment erroneous if given; the evidence being no part of the record for such purpose. The rule in civil cases, that the matter alleged on arrest must be such as would have been sufficient on demurrer to overturn the action or plea, also applies to criminal cases. Wharton's Crim. Pl. & Prac. (8th Ed.) Sec. 759; Sadler's Crim. Proc. Sec. 516; Clement v. United States, 149 F. 305, 79 C.C.A. 243; United States v. Marrin (D.C.) 159 F. 767, affirmed 167 F. 951, 93 C.C.A. 351.

To sustain the first ground of the motion it is urged that a mere agreement to violate the laws of the United States is not sufficient to constitute a conspiracy within the meaning of section 37 of the Penal Code, but that it is necessary to further charge in the indictment that they actually did devise the scheme to defraud the party alleged in the indictment. It is admitted that the part of the indictment stating the specific acts of the parties which constitute the offense shows that they did actually enter upon the scheme to defraud and tried to carry it out by committing an overt act; but it is claimed that that is not sufficient, that it must be in the charging part of the indictment, or, as counsel say, the indictment should have charged 'that the defendants conspired and did commit the offense of attempting to defraud. ' This contention is clearly untenable. In Stokes v. United States, 157 U.S. 187, 190, 15 Sup.Ct. 617, 619 (39 L.Ed. 667) the contention was that 'the allegation is not what was actually done, but of what the defendants conspired and intended to do,' but it was held that that was sufficient.

To sustain the second ground, counsel rely upon what was determined in Stokes v. United States, supra, and the...