298 F. 293 | 5th Cir. | 1924
This case comes on for hearing upon writ of -error to the District Court for the Western District of Louisiana. C. A. Reid Clark and E. H. Van Harlingen were indicted by the grand jury for conspiracy to use the mails to defraud and for using the mails to defraud. The first count charged the conspiracy; this count was eliminated by the court on demurrer. The four following counts charge the using the mails to defraud. C. A. Reid Clark iyas arrested and placed on trial on these four counts, and a conviction had on counts 4 and 5. The demurrer was overruled as to counts 2, 3, 4, and 5.
Count 4 then, charges that on May 19, 1920, the defendants deposited and caused to be deposited in the post office for transmission in the mails at Shreveport, La., a certain letter and pamphlet, in an envelope duly stamped, and addressed to one Frank Coulthard, Santa Rosa, N. M., in furtherance of said scheme and artifice. The fifth differs from the fourth count materially only in the date and person to whom the letter and pamphlet was addressed; the date being April 19, 1920, and the person being Henry P. McKnight, Charleston, S. C.
The plaintiff in error has seven assignments of error in the record. The first and sixth were argued and insisted upon in both argument and brief. The first assignment is that the court erred in. refusing the mation to quash; the second, that the court erred in refusing his charge requesting a peremptory charge to find him not guilty, made after the conclusion of all the testimony.
The contention under the first error assigned is that the reference to the scheme and artifice to defraud is not sufficiently pointed out in the two counts on which he was convicted. We have quoted the language of adoption contained in those counts and think it sufficient. There was only one scheme and artifice set out, and that was contained in the second count. “Said scheme and artifice” could refer to no other than that stated in the second count, and no opportunity was af
At the close of the government’s testimony the defendant requested a peremptory charge to find him not guilty, and this request was renewed at the close of all the testimony, and the refusal of the court to give it properly excepted to. The principles of l'aw governing the court’s action in circumstances of this kind are well established and understood, and need no citation of authorities. If this testimony is such that reasonable men will not differ upon the issue, a peremptory charge should be given; but, if it is otherwise, the issue must be submitted to the jury. An examination of the evidence convinces us that the issue in this case was properly submitted to the jury, and that the court committed no error in refusing the requested charge.
We have examined the other errors assigned, as to the admission of testimony and refusal of tendered evidence, and find no reversible error.
The judgment of the court is therefore affirmed.