223 F. 590 | 8th Cir. | 1915
Plaintiffs in error were convicted in the court below of devising a scheme to defraud and making use of the postal establishment of the United States in its execution. There were two indictments, containing in the aggregate 22 counts. One of them was based on section 5480 of the Revised S’tatutes, and the other on section 215 of the Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1130 [Comp. St. 1913, § 10,385]), and these were consolidated for the purposes of a trial.
The scheme laid in each count of the indictments was that the defendants should secure in their own names or in the name of a corporation, the Washington & Choctaw Land Company, organized by them and of which they were the chief executive officers, the ownership or control of large tracts of worthless land, and should then falsely pretend and represent to the public, by advertisements in newspapers, letters circulated by mail, and otherwise, that the land was without marshes, swamps, stumps, or brush that would interfere with successful cultivation; that it was rich and fertile and of rapidly increasing value, capable of producing a great variety and large quantities of grains, fruits, nuts, and vegetables; that it presented an attractive colonization scheme, was tributary to a railroad carrying freight and passengers throughout its extent, which would furnish free passage and transportation to all locators; that it was well adapted to' home building; that townsites were platted here and there on the land, which were destined to develop rapidly into large and flourishing cities, and other like glittering representations. It is then alleged that all these pretensions and representations were so made with the hope and expectation that the credulous, to whom they or some of them might come, would be attracted by their allurements and induced to purchase tracts. of land and pay the price asked for the same, and thus enable defendants to- convert the money to be received to their own use without giving any substantial consideration therefor.
The indictments then falsified most of these representations, and alleged, among other things, that, instead of the land being rich, fertile, and productive, and of great or rapidly increasing value, readily producing large quantities of grains, fruits, nuts, and vegetables, as represented, it was sterile, unproductive, • and valueless for raising grains, fruits, nuts, and vegetables, and that it was incapable' of being made fertile, productive, or valuable, and was not worth to exceed $2 per acre. The indictments in each count thereof alleged that defendants, in executing their scheme, mailed a letter which was there set out in full.
The legal sufficiency of the indictments was not questioned by demurrer or otherwise, but on arraignment the defendants entered a plea of not guilty, and the trial on the issues of fact so joined proceeded; in its progress their counsel admitted the mailing of the several letters
The cause was then submitted to the jury, and a verdict of guilty followed on each of the 8 counts of the first indictment and on each of the 14 counts of the second indictment, and the cou'rt sentenced each of the defendants on the first mentioned indictment, founded on section 5480 of the-Revised Statutes, to pay a fine of $500 and to be imprisoned in the United States penitentiary at Leavenworth, Kan.,- for the period of 18 months, and on the second mentioned indictment, founded on section 215 of the Criminal Code, to pay a fine of $500 and be imprisoned in the United States penitentiary at Leavenworth, Kan., for a period of 5 years. A motion in arrest of judgment was then filed by- defendants, assigning two reasons therefor: First, that the indictments did not state facts sufficient to constitute an offense; and, second, that they failed to sufficiently advise the defendants of the charge they were called upon to meet, and did not contain averments sufficient to enable them to intelligently prepar.e for a trial. This motion having been overruled, the defendants sued out this writ of error.
They assign and specify for error that the court erred in denying their motion in arrest of judgment, in denying tfieir motion for an instructed verdict in their favor,-in its charge to the jury, in refusing certain requests for instructions, and in its rulings on the introduction of evidence. It is argued that the indictments are bad for repugnancy, in that they contain two inconsistent allegations of substance, and for that reason fail to so advise defendants of the nature and cause of the accusation against them as to enable them to prepare their defense. It is said this repugnancy appears in the allegation that one of the steps in the defendants’ scheme to defraud was to acquire a tract of worthless land, and in a later allegation that the land so to ,be acquired was worth at least $2 an acre.
Reading the indictments in their entirety, as we must, we think there is no merit in the contention. No land is absolutely worthless; that is, worthless for any purpose whatsoever. Land may be worthless for agricultural purposes and valuable for pasturage or grazing, or worthless, because swampy or marshy, for the purpose of raising grain, fruit, vegetables, or nuts, and yet valuable, as the proof in this case abundantly shows, for the propagation of crawfish. A building may be worthless for a residence, and at the same time valuable for a stable. In other words, the adjective “worthless” is not a word of absolute, but of relative, signification, and we think the indictments, taken as a whole, clearly advised the defendants of the meaning attributable to the word by the grand jury.
After stating and falsifying the representations alleged to have been made by defendants to the effect that the land was well adapted for agricultural and home-planting purposes, free from swamps, marshes, brush, and timber, the averment follows in close connection that it was unproductive and valueless for raising grain, fruit, nuts, or vegetables, and was incapable of being made fertile, etc. In this way the indictments themselves make it clear in what relation the word “worthless” was employed, namely, worthless for the purposes for which the land was advertised for sale.
The indictments, measured by the rule laid down in Brooks v. United States and other cases cited, disclose, in our opinion, a scheme designed and reasonably adapted to defraud, one that held out to the unsuspecting the hope of obtaining a home and competency on the expenditure of a comparatively small amount of money, and thus appeals to
We conclude, therefore, that there was no- error in denying the motion in arrest of judgment on the ground that the indictments failed to charge -an offense.
Defendants’ counsel also urge in support of this assignment that many of the separate- representations made by defendants in their advertisements and correspondence were not proved to have been false in fact, but were proved substantially true; that other representations were proved to have been consonant with an honest purpose and intention on the part of the defendants; and that many of the representations concerned immaterial and trivial matters, permissible as trade talk, or as an expression of an opinion merely. Mr. Justice Brewer in rendering the decision of the Supreme-Court in the case of Durland v. United States, 161 U. S. 306, 313, 16 Sup. Ct. 508, 40 L. Ed. 709, said:
“But beyond the letter of the statute is the evil sought to be remedied, which is always significant in determining the meaning. It is common knowledge that nothing is more alluring than the expectation of receiving large returns on small investments. Eagerness to take the chances of large gains lies at the foundation of all lottery schemes, and, even when the matter of chance is eliminated, any scheme or plan which holds out the prospect of receiving more than is parted with appeals to the cupidity of all. In the light of this the statute must be read. * * * It was with the purpose of protecting the public against all such intentional efforts to despoil, and to prevent the post office from being used to carry them into effect, that this*595 statute was passed; and it would strip it of value to confine it to such cases as disclose an actual misrepresentation as to some existing fact, and exclude those in which is only the allurement of a specious and glittering promise.”
In the case of McCarthy v. United States, 187 Fed. 117, 110 C. C. A. 547, the Court of Appeals for the S'econd Circuit, in considering a refusal of the trial court to direct a verdict in favor of the defendants in a case wherein they were accused of devising a fraudulent scheme to work off a sandy and worthless tract of land called a “park,” made use of the following language:
“The first alleged error argued in the brief is that the court refused to direct a verdict for the defendants, on the ground that there was no evidence establishing that any fraudulent scheme had been devised or operated. It is not necessary to reproduce the circulars, maps, and bird’s-eye views which were exhibited to persons who responded to the first request. Without containing an absolute misstatement as to any single fact, the whole description was carefully devised to lead prospective purchasers, resident some of them in distant states, to suppose that the ‘Park’ was practically an extension of the well-known ‘Westhampton Beach,’ with its churches, schools, electric light,” etc., “and that it was a ‘suburban district of Greater New York.’ ”
After then quoting from the decision of the Supreme Court in the Durland Case, the court proceeded as follows:
“Enough was shown to send the case to the jury to decide whether the scheme involved a device reasonably calculated to deceive persons.”
In this case we have no occasion to apply the doctrine so broadly. Here many material representations charged in the indictments to have been made by defendants which from their nature were calculated to attract purchasers and which taken together were reasonably adapted to deceive were proved to have been false, and the testimony taken as a whole tended strongly to show a fraudulent scheme on the part of the defendants as charged in the indictments to dispose of land represented by them to be valuable and useful for agricultural purposes which was practically worthless for those purposes. There was, therefore, no error in refusing to instruct a verdict in favor of the defendants.
“The law indulges sellers of property in what is commonly known as ‘puffing their property,’ in order to induce buyers to take it at the highest price obtainable, so it was entirely lawful for the defendants to commend their property in terms of extreme commendation and to indicate that it was capable of great uses in the future and that it had possibilities of even unusual character.”
Exception is also taken to a certain expression in the charge-of the court to the jury. As to this it is sufficient to say the particular expression criticized is so explained or so related to other parts of the charge as to be inoffensive. The entire charge must be read together, and when so read the matter complained of is unobjectionable.'
Error is assigned to the admission of certain evidence over defendants’ objections. We have carefully read and considered all the evidence in connection with or relating to that objected to by defendants’ counsel, and in view of it all we are unable to' say there was any error in thp rulings of the court in the particulars complained of.
Finding no reversible error, the judgment of the District Court is affirmed.