Wright v. Stewart

• Decision Date: 14 June 1904
• Citation: 130 F. 905
• Parties: WRIGHT v. STEWART et al.
• Court: U.S. District Court — Western District of Missouri

130 F. 905

WRIGHT v. STEWART et al.

United States Circuit Court, W.D. Missouri, Western Division.

June 14, 1904

Syllabus by the Court

Where a conspiracy is charged to swindle, by obtaining under false pretenses money of a third party by means of a 'fake' foot race, evidence of the separate acts and declarations of the alleged members thereof may, in the sound discretion of the judge, be admitted in advance of proof, prima facie, of the existence of the conspiracy, where, tracing step by step the footprints of each, they converge to a common center of such purpose.

In a civil action, founded on a conspiracy to defraud the plaintiff and steal his money, the conduct, acts, and declarations of the conspirators, in pari materia, from the inception of their operations, may be inquired into for the purpose of demonstrating the character of the particular act complained of, limited to those of a like character in furtherance of a common enterprise. Likewise, where the question involved is as to the fraudulent character of the given transaction, and the guilty knowledge of the alleged conspirators, evidence of subsequent like acts and transactions, closely allied in point of time, before the end of the conspiracy, may be admitted.

A banking corporation may become a party to a fraudulent conspiracy, the same as a natural person, with like responsibility. It and its managing officers may legitimately receive on deposit the moneys of a gambler, with reason to believe it was won in gaming or by other questionable means but they cross the line of permissibility when, with a knowledge that such depositor is obtaining the money by fraud or theft, they do acts in aid of the wrongful means by which the money is obtained.

Proof of the notoriety of a fact in the neighborhood of the party to be affected thereby is competent to carry home to him knowledge.

4. See Evidence, vol. 20, Cent. Dig. Sec. 228.

In an action to recover money from defendants, obtained from the plaintiff by means of inducing him to believe that a foot race was 'fixed,' so that one party was sure to win and persuading the plaintiff to participate to the extent of betting the money of one side to the simulated race as it it were his own, on the assurance that he should receive 20 per cent. of the sum won, he being ignorant at the time that the money all belonged to the parties on both sides of the pretended wager, held that, although he was in delicto, by consenting to act in such deceitful attitude, he was not in pari delicto with the conspirators, and is therefore entitled to recover back the sum of $5,000 which the conspirators persuaded him to intrust to the possession of one of them as a stakeholder, not to be bet on the race, but to be used to make a showing by the stakeholder in the event of a count of the stake money being called for by one of the feigned bettors.

Where in the instance above stated, the plaintiff demanded back his money before the pretended race was run, action will lie for its recovery, and the plea of moral turpitude constitutes no defense.

McReynolds & Halliburton and H. W. Currey, for plaintiff.

W. R. Robertson and Howard Gray, for defendants.

PHILIPS District Judge.

A trial by jury having been waived by written stipulation of the parties filed herein, this cause has been submitted to the court on the pleadings and the evidence. The plaintiff is a citizen of the state of Texas, and the defendant bank, an incorporated bank under the laws of the state of Missouri, is located at Webb City, Jasper county, Mo., and the defendant Joseph C. Stewart was president and the defendant James P. Stewart was cashier of said bank at the times hereinafter stated, and were citizens of the county aforesaid, and the principal stockholders and practical managers of said bank.

The petition, in substance, charges that at the dates thereinafter mentioned, and prior and subsequent thereto, the defendants, together with Robert Boatright, Ed. Ellis, C. F. Landers, William Segrider, L.Ed. Hindman,--Maloney, R. H. Williams, George Thompson, Burt Brumley, Harry Wasser, Bud. Jillet, and others, were combined and confederated together in managing and operating fake gambling devices at said Webb City, to wit, fake foot races and other games, for the purpose of obtaining possession of the money and property of strangers who had no knowledge of their games, with the intent to feloniously steal, take, and carry away such money and convert the same to their own use; that they were engaged in person and by agents in enticing strangers to come to Webb City and engage in such games, for the purpose of getting possession of the money and property of such strangers, and converting the same to their own use; that such foot races were so arranged that it was impossible for any person outside of defendants and their agents to win in said races, said races being known as 'fixed' races; that prior to the 6th day of September, 1901, the defendants and their confederates conspired and confederated together to induce and entice the plaintiff to come from his home in Cooper, Tex., to Webb City, for the purpose of betting the money of Robert Boatright and others belonging to said combination on a foot race, to be arranged and to be run by the defendants Landers and Segrider as opposing runners, for the purpose of defrauding and swindling the plaintiff out of his money and property, under pretense of winning the same; that by various devices and false pretenses and representations they induced the plaintiff, on the 6th and 7th days of September, 1901, to place in the hands of said Boatright as stakeholder on such foot race $5,100, said foot race to be arranged by the defendants and confederates, said defendants and their confederates representing that it was necessary for the plaintiff to put the amount of money in Boatright's hands until the stake on said race could be counted, agreeing with plaintiff that if he would do so, as soon as the money was counted, it would be returned to him; that in reliance upon said statements and inducements the plaintiff placed said sum of money in Boatright's hands for the purpose aforesaid; that he made demand of Boatright for his money before the pretended race was run, but the defendants and their confederates failed and refused to return said money, or any part thereof, to the plaintiff, but stole, took, and carried the same away, and converted the same to their own use, pretending that plaintiff had bet said money and lost it on said foot race; that the plaintiff did not bet his said money, or any part thereof, on said foot race, but placed the same in Boatright's hands solely so that Boatright could show that said purse was full and complete. The petition charges that the defendants, the Stewarts and the bank, were at said times engaged in assisting their said confederates and co-conspirators in enticing and inducing plaintiff to put his money in said Boatright's hands, with knowledge that the plaintiff was bound to lose any and all moneys so placed in the hands of Boatright. The petition then proceeds to state the manner in which the plaintiff drew his money on sight drafts in favor of the defendant bank, and how it was then placed with the said Boatright. It then charges that said foot race was arranged for the sole purpose of obtaining from the plaintiff fraudulently the possession of his money, and stealing and converting the same to the use of the conspirators, and falsely claiming that the plaintiff had lost his money on said foot race.

That the conspiracy charged in the petition existed between Boatright and the parties named as co-conspirators with him, other than the defendants, to defraud strangers to their fraudulent combination by means of the device and scheme of conducting fake foot races, conducted ostensibly under the auspices of a so-called athletic club at Webb City, controlled and managed by Boatright as president, is fully established by the evidence. This organization had its inception as far back as 1899, and continued its operations until perhaps 1902. All of the parties named may not have been connected with this fraudulent enterprise from its inception, but they came into it from time to time as it became useful to admit any one of them. Boatright was the chief organizer, director, and controlling mind of the dishonest and cunningly devised scheme. He acquired the sobriquet of 'Buckfoot,' and he and his co-conspirators and subalterns went by the name of the 'Buckfoot Gang.' The devices employed for inveigling subjects to be preyed upon by their scheme were various, suited to the best method of influencing their victim to come to Webb City and be entrapped into parting from his money. These devices and deceitful representations all had one objective point-- to decoy the prey to Webb City to be manipulated and controlled by the genius of Boatright, the master mind. No one outside of the gang of conspirators was ever allowed to win any money on said pretended foot races, or to get his money back, no matter under what assurances or circumstances he was induced to intrust it to the hands of any one of the confederates. Boatright had his emissaries and 'strikers' scattered over the country, into adjacent and nonadjacent states. These men were shrewd, plausible, and resourceful scoundrels. They seemed to have made themselves familiar with the character and gullibility of the men they sought to entrap and despoil, so that the method pursued to bring within their toils one man in a given locality would be a wholly different expedient resorted to in respect of another subject.

One man, for instance, residing in the state of Iowa, a farmer and cattle dealer, possessed of some wealth, with extensive credit at his local...