Wilson v. United States

• Decision Date: 23 June 1921
• Docket Number: 251.
• Citation: 275 F. 307
• Parties: WILSON et al. v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Second Circuit

275 F. 307

WILSON et al. v. UNITED STATES. ^[1]

No. 251.

United States Court of Appeals, Second Circuit.

June 23, 1921

Stanley C. Fowler and Grant Hoerner, both of New York City, for plaintiffs in error Wilson and C. R. Berry & Co.

John M Coleman, of New York City, for plaintiffs in error Matches and Loomis.

Francis G. Caffey, U.S. Atty., of New York City (John E. Joyce, Asst U.S. Atty., of New York City, of counsel), for the United States.

This cause comes here on writ of error to the United States District Court for the Southern District of New York. The plaintiffs in error are hereinafter referred to as defendants.

The defendants and 14 others were indicted on June 1, 1917. The indictment contained 13 counts. It charged that the defendants had unlawfully, knowingly, and willfully devised and intended to devise a scheme and artifice to defraud, and that for the purpose of executing the said scheme and artifice so devised they placed and caused to be placed in a post office of the United States in the New York City post office, to be sent and delivered by the post office establishment of the United States certain writings, inclosed in postpaid envelopes, addressed to designated persons against the peace of the United States and their dignity, and contrary to the form of the statute of the United States in such case made and provided.

The trial began on May 22, 1918. At that time the court severed the indictment as to four of the defendants named therein. On June 26th a verdict of not guilty was directed as to three of the others. The trial was concluded on June 29th, the jury returning a verdict of not guilty as to four others. The defendants Wilson, Matches, and C. R. Berry & Co. were found guilty on all the counts. The defendant Loomis was found guilty on all the counts but the eighth. Other defendants who were found guilty have not joined in the writ of error.

The defendant Wilson was sentenced to a term of imprisonment of five years on each of certain counts, the sentences to run concurrently, and to two years on certain other counts, the term to begin at the termination of the term of five years.

The defendant Loomis was sentenced to a term of one year and one day on each of the counts, the sentences to run concurrently.

The defendant Matches was sentenced to a term of three years on each of the separate counts, except on count 13, on which he was sentenced to two years, the sentences running concurrently.

The defendant C. R. Berry & Co., Inc., was sentenced to pay a fine of $1,000 on each count, the total fine amounting to $13,000.

The sentences of imprisonment were to be executed in each case at the United States penitentiary at Atlanta, Ga.

Before WARD, ROGERS, and HOUGH, Circuit Judges.

ROGERS Circuit Judge (after stating the facts as above).

The defendants have been convicted of using the United States mails in a scheme to defraud and of conspiring so to do.

There is no bill of exceptions in the record. An application was made to this court on March 9, 1921, for permission to file one. But the application had to be denied. A bill of exceptions must be tendered, signed, and filed within the time prescribed for making, tendering, and filing such bill or within that time the trial court must have extended the time, and the bill must then have been made and filed within the time so extended. Whether a bill might be signed after the time had expired if, prior to the expiration of the allotted time, the parties had consented thereto, was not argued or decided. But it was clearly not within the powers of this court to extend the time for filing a bill of exceptions.

A party alleging error as a ground for reversing a judgment of a lower court must show the errors complained of clearly and affirmatively by the record, and, as the record before us contains only the indictment, the verdict, and the judgment, it is not open to the defendants to raise in this case any questions concerning the improper admission or exclusion of evidence or erroneous instructions to the jury, or refusals to charge as requested, and they have not attempted to do so. The sole question which the case presents is that of the sufficiency of the indictment.

The indictment is an unusual one because of its length. It occupies no less than 85 printed pages of the record, and it contains 13 counts, The first 12 counts charge a violation of section 215 of the United States Criminal Code (Comp. St. Sec. 10385). The material portions of that section are to be found in the margin. ^[1a] The thirteenth count charges a violation of section 37 (Comp. St. Sec. 10201), and the material portions of that section are also in the margin. ^[2]

The unlawful scheme to defraud which it is charged the defendants devised was that of inducing divers persons to purchase the stock of the Emerson Motors Company, Inc., and to part with their money in the purchase of the shares of the capital stock of the said company, well knowing that such stock was not worth the price which it was their intention and purpose to induce the victims to pay for it. This, it is alleged, they sought to accomplish by means of false and fraudulent pretenses, representations, and promises which are at great length particularly set forth and described. Numerous false representations and pretenses of the defendants and allegations of their dishonest acts and purposes are set forth in detail. Every act, purpose, intention, representation, and pretense constituting the scheme to defraud is described.

Devising a scheme to defraud and using the mails to execute it brings those engaged in the scheme within the provisions of section 215 of the Criminal Code. United States v. Young, 232 U.S. 155, 161, 34 Sup.Ct. 303, 58 L.Ed. 548.

It is undoubtedly a fundamental principle in the law of criminal procedure that one accused of crime must be apprised by the indictment, with reasonable certainty, of the nature of the accusation against him. This is necessary not only that he may prepare his defense, but also that he may be able to plead the judgment as a bar to any future prosecution for the same offense. United States v. Simmons, 96 U.S. 360, 24 L.Ed. 819. The indictment should contain such a specification of acts and descriptive circumstances as will on its face determine the identity of the offense. The true test of its sufficiency is not whether it might possibly have been made more certain. It is simply whether the indictment sufficiently informed the defendant of what he must be prepared to meet, and, in case other proceedings should be taken against him for a like offense, whether the record shows with accuracy the extent to which a former acquittal or conviction might be pleaded. Peters v. United States, 94 F. 127, 36 C.C.A. 105. Tested by that standard, there is no reason for doubting the sufficiency of the indictment.

The indictment is drawn in the form in which such indictments are usually drawn, and it does not appear to be lacking in that degree of reasonable certainty which is required in such cases. But, if the defendants thought that it failed to apprise them of the nature of the accusation against them with that degree of certainty to which they thought themselves entitled, they had a right to ask for a bill of particulars. The right to such a bill may be confined to civil cases, in a few states. See People v. Alviso, 55 Cal. 230; State v. Quinn, 40 Mo.App. 627; State v. Williams, 14 Tex. 98. But it is not so restricted in the federal courts, and, when the charges of an indictment are so general that they do not sufficiently advise the accused of the specific acts with which he is charged, the trial court has power to order a bill of particulars to be furnished. Kirby v. United States, 174 U.S. 47, 64, 19 Sup.Ct. 574, 43 L.Ed. 809; Rosen v. United States, 161 U.S. 29, 35, 16 Sup.Ct. 434, 480, 40 L.Ed. 606; Coffin v. United States, 156 U.S. 432, 452, 15 Sup.Ct. 394, 39 L.Ed. 481; United States v. Brooks (D.C.) 44 F. 749; United States v. Bennett, 24 Fed.Cas.p. 1093, No. 14,571, 16 Blatchf. 338. It has been held that, while such a bill cannot supply the omission of an essential averment in the indictment, it may remove an objection upon the ground of uncertainty. United States v. Bayaud, 16 F. 376, 21 Blatchf. 287.

In this case the defendants went to trial without making any objection to the indictment. There was no motion to quash, no demurrer, no application for a bill of particulars. As they went to trial without any objection, now that they have been convicted they cannot come into this court to raise objections which must have been met at the trial. If the defects existed, and we do not think they did, they are defects which under the rule were cured by verdict. It is the rule in criminal, as it is in civil cases, that where an averment necessary to support a particular part of an indictment has been imperfectly stated, the defect is cured by the verdict if it appears to the court that unless the averment were true the verdict could not be sustained. Heymann v. Reg., L.R. 8 Q.B. 102, 12 Cox, C.C. 383; Reg. v. Stroulger, 17 Q.B.Div. 327, 16 Cox, C.C. 85; State v. Ryan, 68 Conn. 512, 37 A. 377; State v. Freeman, 63 Vt. 496, 22 A. 621. The matters said to be indefinitely set forth could not have been proved as alleged unless the government produced all the evidence necessary to support the most careful pleadings.

It is said, however, that the first 12 counts of the indictment are insufficient because they do not describe or set forth the contents of 'a certain writing' which in each of said counts is alleged as having been mailed for the purpose of carrying out the alleged fraudulent scheme. The allegation in the first count is in form as follows:

'The

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