Walker v. United States

• Decision Date: 11 February 1907
• Docket Number: 1,327.
• Citation: 152 F. 111
• Parties: WALKER v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

152 F. 111

WALKER v. UNITED STATES.

No. 1,327.

United States Court of Appeals, Ninth Circuit.

February 11, 1907

The plaintiff in error (defendant below) was indicted for having knowingly, willfully, and falsely devised a scheme and artifice to defraud, which scheme and artifice was to be effected through and by means of the post office establishment of the United States, contrary to section 5480 of the Revised Statutes (U.S. Compt. St. 1901, p. 3697). The scheme consisted in the issuance of a certificate to the purchaser by the Cumulative Credit Company, by which the holder agreed to pay and contribute the amount of $1 per week to the company, for the purpose of creating an expense credit fund and a mutual benefit credit fund for the uses and purposes therein provided. By a stipulation of the certificate the company agreed to set aside 75 per cent. of the sixth to the hundredth payments, inclusive, and 90 per cent. of all payments thereafter, and to place the same in the mutual benefit credit fund, from which were to be paid the amounts due on the certificates as they severally matured. It was provided that the certificates should be deemed to be matured when, at any time after 50 weeks from the date thereof, all like certificates of prior date and number should have been matured and canceled; that at its maturity the owner thereof, upon presentation and surrender to the company of the certificate, should be paid by the company from the mutual benefit credit fund the sum designated in the maturity table on the back thereof and in accordance with the conditions contained in such table provided there should be sufficient money in the mutual benefit credit fund available for that purpose. By a further stipulation it was agreed that the certificate was one of a continuous series of like certificates, in all of which the obligations of and the benefits to the several owners thereof were mutual with the owner of such certificate, and in which the compensation to and the duties of the company were identical with its compensation and duties therein provided that the certificate constituted a mutual agreement between the owner thereof and all of the owners of like certificates and that the time and manner of payments therein and in such other certificates provided for was the essence of the agreement. The table referred to is style 'Maturity Table,' and purports to show the amount returnable at maturity of the certificate at different weekly maturity periods, as follows:

"If Matured in Amount Paid in. Maturity Value.

50 weeks $50.00 $100.00

51 weeks 51.00 102.00"

--and so on in uniform increase to

"99 weeks 99.00 198.00

100 weeks or over 200.00."

As a part of the same scheme, it is alleged that the defendant issued divers and sundry circulars, whereby it was represented, in effect, that money so invested was without the possibility of loss, that the certificates had formerly matured in from 42 to 72 weeks, that they would mature in about 60 weeks, that they had been maturing in less than a year, and that future maturities would be more rapid.

The indictment contains four counts, by the first of which the defendant is accused of having, through and by means of said scheme and artifice, and through and by means of the post office establishment of the United States, received from such post office establishment a letter, contained in an envelope directed to Mr. T. P. Miller, and signed M. Langguth. The second count is for receiving, under like circumstances and conditions, a letter contained in an envelope directed as above, and signed Orlando K. Fitzsimmons; the third, for receiving a letter to the same address, and signed Paul J. Edmeston; and the fourth is for employing a fictitious name and address, to wit, T. P. Miller, that not being the true name of the defendant.

After trial, a verdict was returned finding the defendant guilty as charged, and the court rendered a single judgment thereon. The case comes here on the bill of exceptions.

Walter R. Bacon, for plaintiff in error.

P. C. Sullivan, U.S. Atty.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.

WOLVERTON District Judge (after stating the facts).

The first error assigned relates to the trial under the indictment, by reason of its containing four counts. It is provided by the last clause of section 5480 (U.S. Comp. St. 1901, p. 3697), that:

'The indictment, information, or complaint may severally charge offenses to the number of three when committed within the same six calendar months; but the court thereupon shall give a single sentence, and shall proportion the punishment especially to the degree in which the abuse of the post office establishment enters as an instrument into such fraudulent scheme and device.'

And it is insisted that the injunction of the statute in this regard is jurisdictional. No demurrer was interposed to the indictment, and the question is now raised here for the first time. By a survey of the statute it will be seen that the offense denounced against is created and perfectly and completely defined without any reference to the clause above recited. In other words, the clause does not perform any part of the function of defining or prescribing what shall constitute the offense, and an elimination of the clause will allow the offense to remain intact. What, then, is the purpose of such provision? It can only be to prescribe the mode of procedure in such cases, so that there is a distinction to be held between the defining or creating of the offense and the prescribing of the procedure whereby it shall be prosecuted. The contention, therefore, that the matter of combining more than three offenses in one indictment is jurisdictional, is without merit. This position has been judicially...